Rolling Stone: Inside Trump’s Judicial Takeover
How conservative operatives and Senate Republicans are helping the president pack the courts at a record pace
Democracy is a garden that has to be tended. -Barack Obama
Democrats Just Confirmed Lots Of Trump's Judges So They Could Skip Town
WASHINGTON ― Senate Democrats just gave a huge gift to President Donald Trump: They agreed to expedite votes on 15 of his nominees to lifetime federal court seats because they wanted to go home.
Majority Leader Mitch McConnell (Ky.) had lined up votes for all those district court nominees last week. Normally, Senate rules require up to 30 hours of waiting time for each nominee ― something Democrats typically take advantage of to delay action on confirming Trump judges. But Minority Leader Chuck Schumer (N.Y.) cut a deal with McConnell on Tuesday to bypass the wait times and let them all get through.
Why? So Democrats could get back to campaigning and focusing on winning re-election in November. The Senate is now out of session until next Tuesday.
Of the 15 nominees, six were confirmed by voice votes on Tuesday. Another one was confirmed on a recorded vote. The remaining eight will get quick votes next week.
It’s a major win for Trump and McConnell, whose No. 1 priority is filling up federal courts with conservative judges ― many of whom are incredibly anti-abortion, anti–LGBTQ rights and anti–voting rights. Trump has gotten 26 circuit court judges confirmed, more than any other president at this point in his term. Another way of putting it: 1 in 7 U.S. circuit court seats is now filled by a judge nominated by Trump.
Democracy is a garden that has to be tended. -Barack Obama
Trump chips away at liberal U.S. appeals court majorities
WASHINGTON (Reuters) - Aided by fellow Republicans in the Senate, President Donald Trump is rapidly filling vacancies on U.S. appeals courts, moving some that had liberal majorities closer to conservative control in an ideological shift that could benefit his administration.
These 13 courts wield considerable power, usually providing the last word on rulings appealed from lower courts on disputes involving federal law.
Their rulings can be challenged before the U.S. Supreme Court, but most such appeals are turned away because the top court typically hears fewer than 100 cases annually. Eleven of the courts handle cases from specific multi-state regions, one handles cases from Washington, D.C., while another specializes in patent cases.
Presidents can reshape the federal judiciary with their appointments and seek to appoint judges they believe share their ideological leanings. Republicans typically strive to pick conservatives while Democrats generally aim to appoint liberals, all subject to Senate confirmation.
Republican President Donald Trump has made transforming the federal judiciary one of his top priorities. Now in his second year of office, Trump has appointed 26 judges to the U.S. appeals courts — a record pace. By comparison, Democratic former President Barack Obama appointed 55 appellate court judges during his eight years in office. Trump appointees are on track to tilt the ideological balance on several appeals courts in a conservative direction.
The Heritage Foundation’s New, Secretive Clerkship Boot Camp Is Going to Further Trumpify the Courts
Are you an attorney who has accepted a clerkship with a federal judge in 2019? Congratulations! The Heritage Foundation has a program just for you. At the conservative think tank’s Federal Clerkship Training Academy, you’ll learn how to “excel as clerks” from “distinguished judges” on the courts of appeals and professors at “prominent law schools.” All you need to do is sign a strict nondisclosure agreement swearing that you won’t reveal who teaches the academy or what they say, and vow that you will not use any information you receive “for any purpose contrary to the mission or interest of The Heritage Foundation.”
This clerkship boot camp has set off alarm bells on the left, and for good reason. While all clerks begin their jobs with a set of ideological convictions, they’re typically expected to suspend their biases upon entering their judge’s chambers. Heritage has dropped that pretense: It demands that all participants in its “academy” use what they learn to advance the group’s mission, which corresponds almost perfectly with the current GOP platform. As NYU School of Law professor Melissa Murray noted, the Heritage academy is another phase in Republicans’ weaponization of the courts. It is designed to indoctrinate a new class of clerks with reactionary views that they are expected to implement through their work in the judiciary.
To understand why this program is so disturbing, it’s important to remember that clerkships are supposed to be apolitical. To cynics, that might sound like a joke: Every year, scores of judges select clerks from the Federalist Society, a network for conservative lawyers that’s closely aligned with the Trump administration. Nobody seriously expects these Federalist Society alumni to shed their partisan principles on day one. But traditionally, most clerks really have set aside their priors to follow the lead of their judges. Clerks might maintain a certain jurisprudential philosophy, like originalism, but they aren’t supposed to start the gig hoping that, say, businesses always win or Democrats always lose.
Even if this impartiality is a fiction, it’s a useful one, which Heritage seems intent on shattering. The organization opposes LGBTQ equality, unions, reproductive rights, immigrant rights, and the Affordable Care Act, while supporting capital punishment, deregulation, gun control, and disenfranchisement. Its advocacy wing lobbies vigorously in favor of Republican politicians. And clerks who attend the academy are required to apply their knowledge to the furtherance of these beliefs. That’s antithetical to the premise not just of clerkships, but of the ostensibly independent federal judiciary.
New York Times
A Conservative Group’s Closed-Door ‘Training’ of Judicial Clerks Draws Concern
WASHINGTON — The closed-door “training academy” was aimed at a select group: recent law school graduates who had secured prestigious clerkships with federal judges. It was organized by the Heritage Foundation, a conservative group that has played a leading role in moving the courts to the right, and it had some unusual requirements.
“Generous donors,” the application materials said, were making “a significant financial investment in each and every attendee.” In exchange, the future law clerks would be required to promise to keep the program’s teaching materials secret and pledge not to use what they learned “for any purpose contrary to the mission or interest of the Heritage Foundation.”
The conservative legal movement has made bold moves before, and it has long cultivated law students and young lawyers, partly to ensure a deep bench of potential judicial nominees. The Heritage Foundation, along with the Federalist Society, helped compile the lists of potential Supreme Court nominees from which President Trump chose his two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh. The two groups also helped identify many of the scores of Mr. Trump’s appointees to the lower federal courts.
But legal experts said the effort by Heritage to train and influence law clerks raised serious ethical questions and could undermine the duties the clerks have to the justice system and to the judges they will serve.
“Law clerks are not supposed to be part of a cohort of secretly financed and trained partisans of an organization that describes itself on its own web page as ‘the bastion of the American conservative movement,’” said Pamela S. Karlan, a law professor at Stanford. “The idea that clerks will be trained to elevate the Heritage Foundation’s views, or the views of judges handpicked by the foundation, perverts the very idea of a clerkship.”
New York Times
Senate Truce Collapses as G.O.P. Rush to Confirm More Judges Begins Anew
WASHINGTON — Senate Democrats struck a deal last week with Republicans that saw the quick confirmation of 15 more conservative judges in exchange for a rapid flight to the campaign trail. Liberal activists were infuriated, but after the brutally divisive fight to confirm Justice Brett M. Kavanaugh, the agreement held out a promise of peace.
“I would like to have the future mending things,” declared the chairman of the Senate Judiciary Committee, Senator Charles E. Grassley, Republican of Iowa.
On Wednesday, at Mr. Grassley’s instruction, the armistice collapsed.
Republicans on the Judiciary Committee convened yet another hearing to consider still more conservative federal court nominees — while the Senate was technically in recess. Incensed Democrats boycotted the proceedings, but their empty chairs did not prevent candidates for the bench, such as Allison Rushing, 36, a social conservative nominated by President Trump to the United States Court of Appeals for the Fourth Circuit, from taking a crucial step toward confirmation.
“If there was ever any hope that after the Kavanaugh experience we could return to bipartisanship on the Senate Judiciary Committee, it was shaken this morning,” said Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the chamber, in a telephone interview.
The hearing demonstrated the lengths to which Republicans will go to put conservatives on the federal judiciary, a signature initiative of Mr. Trump and Senator Mitch McConnell, Republican of Kentucky and the majority leader. Only a handful of Republicans attended the Wednesday hearing, but it checked a box to move more judges to the floor during the lame-duck session after Election Day.
Talking Points Memo
Heritage Foundation's Ethically Dubious Law Clerk 'Training Academy' Suspended
The Heritage Foundation’s “training academy,” set up to groom law clerks for prominent judicial posts, has been suspended after the New York Times published the questionable requirements of the program, including secrecy about the teaching participants received there in exchange for the financial backing of “generous donors” who allowed them to complete the program.
Some legal experts told the Times that it is inherently problematic for a very conservative group to secretly train future judges to have loyalty to its ideals and practices.
Some of the questions on the application materials — since removed from the Heritage Foundation’s website — reportedly inquired about potential participants’ stance on originalism and ideological alignment with current or former Supreme Court justices. As the Times points out, it is unclear if a participant who took liberal stances on those two essay questions would have been admitted.
“Law clerks are not supposed to be part of a cohort of secretly financed and trained partisans of an organization that describes itself on its own web page as ‘the bastion of the American conservative movement,’” Stanford Law professor Pamela Karlan told the Times. “The idea that clerks will be trained to elevate the Heritage Foundation’s views, or the views of judges handpicked by the foundation, perverts the very idea of a clerkship.” ...
Supreme Court justices Brett Kavanaugh and Neil Gorsuch were picked from a list of contenders curated by the Heritage Foundation and the Federalist Society, another conservative organization focused on the judiciary.
Politico: Grassley weighs leaving Judiciary Committee chairmanship:
Chuck Grassley is still keeping his options open regarding which powerful committee he will helm next Congress, a decision that will have significant ramifications for his colleagues and for Congress as a whole.
The Iowa Republican is deliberating whether to stay as Judiciary Committee chairman for another two years or whether to pursue the Senate Finance Committee chairmanship, which is opening up with the retirement of current chairman Orrin Hatch (R-Utah).
* * *
Indeed, Grassley’s decision will have a big impact on several other senior senators. Most notably, if Grassley hops to the Finance Committee Sen. Lindsey Graham (R-S.C.) will be in line to chair the Judiciary panel and oversee the confirmation of a new attorney general as well as more judges, including filling potential Supreme Court vacancies.
* * *
If Grassley stays at Judiciary, Sen. Mike Crapo (R-Idaho) would be in line to take over the Finance Committee, which oversees tax law. Crapo currently leads the Banking Committee, and if he were to leave that post then Sen. Pat Toomey (R-Pa.) would be the favorite to lead the Banking panel.
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Trump Is Reshaping The Judiciary. A Breakdown By Race, Gender And Qualification
The Trump administration has already written the opening chapters of what could be its most enduring legacy: the makeup of the federal courts.
In partnership with Senate Majority Leader Mitch McConnell, the Trump White House has secured lifetime appointments for 29 appeals court judges and 53 district court judges. That's not to mention two Supreme Court nominees.
"He came into office with a mandate to nominate judges in the mold of Justice [Antonin] Scalia and Justice [Clarence] Thomas," said Carrie Severino, chief counsel at the Judicial Crisis Network, which advocates for conservative judges. "That was a key reason he won the presidency."
The effort is so important to the Republican legal community and the party's voting base that lawmakers have been holding hearings for nominees while the Senate was in recess, aiming to confirm those candidates in the lame-duck session scheduled before the end of the year.
Critics call this an abuse of the system and point out that all the Trump picks for the appeals courts and the Supreme Court tend to have something in common: most of them are white men.
Chief Justice Roberts pushes back on Trump's criticism of 'Obama judge'
Chief Justice John Roberts on Wednesday rebuked President Trump's criticism of a federal judge who ruled against his administration's asylum policy this week as "an Obama judge."
Roberts said in a rare statement first reported by The Associated Press that the U.S. doesn't have "Obama judges or Trump judges, Bush judges or Clinton judges.”
“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said in the statement released by the Supreme Court's press office.
“That independent judiciary is something we should all be thankful for," he added in the statement, which came a day before Thanksgiving.
Trump's criticism of U.S. District Court Judge Jon Tigar came a day after the judge sided with opponents of Trump’s policy prohibiting certain immigrants from claiming asylum and granted their request for a temporary restraining order.
American Bar Association president: Trump's criticism hurts judicial independence
American Bar Association President Bob Carlson said Wednesday that President Trump's attacks against the 9th Circuit Court damage the judicial independence that is critical to American democracy.
"Disagreeing with a court’s decision is everyone’s right, but when government officials question a court’s motives, mock its legitimacy or threaten retaliation due to an unfavorable ruling, they intend to erode the court’s standing and hinder the courts from performing their constitutional duties," Carlson said in a statement on Wednesday.
"As we celebrate this Thanksgiving holiday, let us all count our blessings as Americans – free speech; free press; an independent, impartial judiciary; and the ability of every person in our country to stand up and speak out in favor of the rule of law."
The comments from Carlson came after Trump derided U.S. District Judge Jon Tigar as an "Obama judge" after he ruled against the White House’s policy prohibiting immigrants who entered the country illegally from requesting asylum.
New York Times
Among Conservatives, Some Measured Support for Chief Justice’s Rebuke of Trump ...
The president has criticized judges and courts he disagreed with on many occasions, often in partisan terms that have rankled judges and legal scholars. But Mr. Trump’s own judicial nominations have been a boon to conservatives: Dozens of federal judges and two Supreme Court justices have taken their seats during his administration. That legacy could last for decades.
While some figures on the right objected to the statement from Chief Justice Roberts, the reaction from several prominent conservatives in the legal community has been more muted.
John G. Malcolm of the Heritage Foundation, a powerful conservative think tank, said he was “a bit surprised” that the chief justice would issue a public response to the president but he did not object to the statement itself. “I understand his desire to express the sentiment — one that I agree with — that judges owe fidelity to the Constitution and the law, and not to a political party or ideology,” said Mr. Malcolm, who is vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies.
The administration — and the office of the White House counsel, in particular — is overseeing a sweeping transformation of the judiciary. In addition to Justices Neil M. Gorsuch and Brett M. Kavanaugh, Mr. Trump has appointed a historic number of conservative judges to the federal bench, including more than two dozen on the appellate courts.
“We’ve generally been very supportive of the president’s judicial picks,” said Jonathan H. Adler, a conservative law professor at Case Western Reserve University School of Law.
But he said he appreciated the statement from Chief Justice Roberts. “There is a need for people to speak out in defense of the rule of law, in defense of American institutions, without regard for which side of the aisle the attacks come from,” he said.
LA Times OpEd - Gianfranco De Girolamo
I resigned from the Department of Justice because of Trump’s campaign against immigration judges ...
Soon enough, however, the work changed. In March 2018, James McHenry, the Justice Department official who oversees the immigration courts as head of the Executive Office for Immigration Review, announced a mandate imposing individual quotas on all the judges. Each judge would be required to decide 700 cases per year, he said.
With these new quotas, which went into effect on Oct. 1, immigration judges must now decide between three and four cases a day — while also reviewing dozens of motions daily and keeping up with all their administrative duties — or their jobs will be at risk.
The announcement of the quotas in March was the first in a series of demoralizing attacks on immigration judges this year. In May, Atty. Gen. Jeff Sessions, since fired by Trump, personally issued a decision that placed limits on the ability of immigration judges to use a practice known as administrative closure, which allows judges to put cases on indefinite hold, and which, in immigration cases, can be a tool for delaying deportation orders.
The Justice Department enforced the decision in July by stripping an immigration judge in Philadelphia of his authority in scores of cases for continuing to use administrative closure.
All this was in addition to a barrage of disparaging comments made directly by the president. In June, Trump tweeted that there is no reason to provide judges to immigrants. He also rejected calls to hire more immigration judges, saying that “we have to have a real border, not judges” and asking rhetorically, “Who are these people?”
The demoralizing effect on immigration judges was palpable. Morale was at an all-time low. I was new to civil service, but these judges, some of whom have served continuously since the Reagan administration, made clear that this was an unprecedented attack on the justice system.
Trump’s court picks held hostage by Mueller bill
Senate Republicans are searching for ways to defuse a fight over legislation protecting special counsel Robert Mueller that is complicating their ability to confirm President Trump’s judicial nominees.
The impact of Sen. Jeff Flake’s (R-Ariz.) threat to vote against any of Trump’s court picks unless he gets a vote on the Mueller bill has been on full display this week, with Republicans leaning on Vice President Pence to break a tie on a procedural vote and several nominations expected to languish in the Senate Judiciary Committee absent an agreement.
Leadership is privately measuring support for the Mueller bill and a possible vote on the legislation to satisfy Flake and get him to drop his opposition to judicial nominees.
Sen. John Cornyn (Texas), the No. 2 Republican in the chamber, said Wednesday evening that GOP leaders have whipped the bill, after telling reporters earlier this week that leadership is trying to figure out what sort of support the bill has and what the “outcome” of a vote on the legislation might be.
“I think we haven’t really figured out how to deal with that,” Cornyn said on Wednesday, referring to Flake’s push for a vote.
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BREAKING: @SenatorTimScott to oppose Thomas Farr, killing the controversial nomination: https://www.thestate.com/news/politics- ... 86255.html … w/ @MurphinDC
“If everyone fought for their own convictions there would be no war.”
― Leo Tolstoy, War and Peace
― Leo Tolstoy, War and Peace
Scott to oppose Farr nomination to federal bench in NC, ending chances of confirmation
BY EMMA DUMAIN AND BRIAN MURPHY
NOVEMBER 29, 2018 05:00 PM,
Rep. G.K. Butterfield, D-N.C., explained the recent history of the Eastern District of North Carolina. He said President Trump's nominee Thomas Farr is "probably the most unqualified, insensitive, uninformed, incompetent attorney.
Sen. Tim Scott said Thursday he will oppose the nomination of Thomas Farr to the federal bench, assuring the controversial pick will not be confirmed.
The South Carolina Republican was the deciding vote in determining whether Farr, widely accused of efforts to disenfranchise black voters, would become a federal judge.
Scott’s decision comes after four days of intense drama and speculation about what the Senate’s only black Republican would do.
Sen. Jeff Flake, R-Arizona, made it clear earlier in the day he, too, would oppose Farr’s nomination. Senate Republicans could only afford to lose one vote and still confirm Farr. Senate Republicans control 51 seats, and all 49 Democratic caucus members were expected to oppose Farr.
In a brief statement explaining his decision, Scott cited a 1991 Department of Justice memo that was leaked just this week, days before the Senate was set to vote on Farr’s confirmation. It detailed Farr’s involvement in “ballot security” activities by the 1984 and 1990 campaigns of then-Sen. Jesse Helms, R-North Carolina.
Farr worked for the campaign in 1984 and represented the 1990 campaign as a lawyer.
Helms’ 1990 re-election campaign against former Charlotte mayor Harvey Gantt, who is black, included charges of voter intimidation for postcards mailed to primarily black voters warning of possible arrest at the polls. The Department of Justice investigated the voter intimidation claims and settled with the Helms campaign in a consent decree.
https://www.thestate.com/news/politics- ... 86255.html
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The Guardian OpEd - Andrew Gawthorpe
Trump made the conservative dream of remaking the federal judiciary true
With an unusually high number of appointments in federal courts, Trump could profoundly remake large parts of American life ...
Trump’s judicial picks make it more likely that in the future, these cases will go the way of the enemies of federal regulation and welfare. In picking his judicial nominees, Trump has relied on the advice of the Federalist Society, a conservative legal group that aims to place judges who advocate a very strict reading of the constitution on the federal bench. Such judges are apt to overturn laws for which they cannot find an obvious basis in the constitution, a category which they argue includes Roe v Wade and much of the legislation that governs the modern American regulatory and welfare state.
This represents both an opportunity and a challenge for the Republican party and broader conservative movement. It gives them the opportunity to advance their policy priorities – such as restricting abortion or overturning Obamacare – even as they increasingly struggle to win elections. Along with gerrymandering and restrictions on voting rights, judicial dominance could be another way in which the GOP tries to struggle against the winds of change.
On the other hand, Republicans are at risk of overstretch if their transformation of the federal judiciary proceeds too far, as the latest case against Obamacare reveals. Key aspects of the healthcare law remain overwhelmingly popular. Three-quarters of the public, including 58% of Republicans, say it is very important that protection for those with pre-existing medical conditions remain in place. Many Republicans who had opposed this protection felt it necessary to lie about their position in the recent midterms.
Their inability to win electoral mandates to overturn these popular policies explains why the GOP is turning to judicial means to do so instead, but it also raises the question of what would happen the day after they were successful. The spectacular failure of the last Congress to pass a replacement to Obamacare shows that the Republican party is bereft of constructive ideas in this area even as it seeks to tear down the existing policy that provides healthcare to millions through its lawsuit. Even while in government the party was stuck in an oppositional mode and unable to offer a vision of its own.
It is possible to envisage a nightmarish future in which a deeply conservative judiciary rolls back the “administrative state” on the basis of fringe legal ideas, and Democrats are unable to have laws protecting the basic interests of hundreds of millions of Americans upheld in court despite overwhelming popular support. Even as Republicans suffered at the ballot box as a result, welfare, healthcare, abortion rights and environmental protections might all be rolled back without a democratic mandate. Such a stark shift in the philosophy of the judiciary would do severe damage to American democracy, and sever the Republican party from any claim to uphold the popular interest, with severe electoral consequences sure to follow.
Dems push for increased scrutiny of Trump’s court picks
A staunch ally of President Trump will soon wield the gavel on the Senate Judiciary Committee, and Democrats are worried they will have little power to act as the first line of defense when the panel considers judicial nominees.
Sen. Lindsey Graham (R-S.C.), the committee’s most senior Republican member, is expected to take over as chairman after lawmakers convene for the 116th Congress in early January. He will succeed Chairman Chuck Grassley (R-Iowa), who has made judicial confirmations the panel's main focus during his tenure, drawing criticism from opponents for how quickly he moved nominees to the floor.
Democrats on the committee such as Sens. Mazie Hirono (Hawaii) and Sheldon Whitehouse (R.I.) want to see changes under Graham's leadership, chief among them the restoration of what's known as the blue-slip rule.
The slips are actual blue pieces of paper that senators are asked to submit if they’re OK with a judicial nominee from their state who is under consideration by the Judiciary Committee. Declining to submit a blue slip has traditionally been a way for senators to object to a nominee.
Grassley, however, viewed blue slips as a courtesy, not a hard-and-fast rule, and refused to allow them to be used as a Democratic tool to block Trump’s circuit court nominees.
Adding:Bigots, Bloggers Liars: The Top-Ten Worst Judges Trump Has Put on the Bench
The old Congress is going out so it’s time to review the worst people who are now federal judges—for life.
Most liberals would like to forget the nightmare of the 115th Congress. But its most lasting legacy will be with us until the 2050s: the 83 conservatives now serving lifetime positions as federal judges.
In the aggregate, this cohort, which should represent the cream of the legal crop in America, is the least qualified and least diverse in recent memory.
According to an analysis by NPR, President Trump’s nominees were 77% male and 82% white (compared to Obama’s 57% male and 63% white nominees). An unprecedented six nominees, including one just confirmed by the lame-duck congress, were deemed “not qualified” by the non-partisan American Bar Association. (None of President Obama’s nominees were so designated.)
There are also many of them. In two years, Donald Trump has already nominated 155 people to be judges. In eight years, President Obama nominated 392. Trump’s nomination rate is more than twice that of his predecessor, mostly because from 2014-16, Senate Republicans stonewalled an unprecedented number of Obama’s judicial nominees: 68 of them, from should-be Supreme Court Justice Merrick Garland on down.
Those vacancies have now been filled largely by hard-right conservatives who passed the litmus tests of the Federalist Society and Judicial Confirmation Network, both of which controlled by a tiny coterie of religious fundamentalists. Both organizations also espouse legal philosophies that were once well outside the legal mainstream, but are now unequivocally part of it. And while the Federalist Society claims 4% of America’s lawyers as members, those members make up over 80% of Trump’s appellate court nominees.
BuzzFeed News: Trump’s New Judges Are Everything Conservatives Hoped For And Liberals Feared
Judges confirmed to federal appeals courts in the past two years are already staking out strong positions on guns, abortion, political speech, and agency power.