Greg Katsas – Nominee for the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is the first among equals of the federal appellate courts.  As the D.C. Circuit’s jurisdiction covers the seat of federal government, it has the authority to review the rulemaking of the federal administrative bureaucracy, giving its judges enormous influence.  As a result, nominations to the D.C. Circuit attract more controversy than any other inferior court, and who a President chooses to nominate to the D.C. Circuit is an important signal of their priorities.  For his first nomination to this important court, President Trump has selected one of his assistants: Greg Katsas.

History of the Seat

During the Obama Administration, Republicans used the filibuster to maintain a Republican advantage on the D.C. Circuit.  The importance of the court largely motivated the use of the “nuclear option” to eliminate the filibuster on judges.  As a result, the D.C. Circuit today has a 7-3 majority of Democratic appointees among its active judges (although if the senior judges are taken into account, the Circuit still has a 9-8 Republican majority).  Later in the Administration, the D.C. Circuit’s Chief Judge, Merrick Garland, was nominated by President Obama for the Supreme Court vacancy caused by the death of Justice Antonin Scalia.  The Republican majority of the U.S. Senate, however, declined to process the nomination, and Garland continues to serve as Chief Judge.

Katsas has been nominated for a vacancy that opened upon the retirement of Judge Janice Rogers Brown.  Brown, a conservative and libertarian thought leader, announced her retirement in July 2017.[1]  On July 10, Katsas submitted his resume to White House Counsel Don McGahn.  Katsas was officially nominated on September 7, 2017.

Background

Gregory George Katsas was born in 1964 in Boston to Greek immigrant parents.  After getting an A.B. from Princeton University in 1986, Katsas attended Harvard Law School, where he was executive editor of the Harvard Law Review.  After graduating from law school, Katsas clerked for Judge Edward Becker on the U.S. Court of Appeals for the Third Circuit as well as then-Judge Clarence Thomas on the U.S. Court of Appeals for the D.C. Circuit.  Upon Thomas’ elevation to the Supreme Court, Katsas clerked for him in the 1991-92 term.  After his clerkship, Katsas joined the D.C. office of Jones Day, becoming a partner at in 1999.

After the election of President George W. Bush in 2000, Katsas joined the Department of Justice as the Deputy Assistant Attorney General in the Civil Division, supervising the Division’s appellate attorneys.  In 2006, Katsas moved to the Office of the Attorney General, serving as Principal Deputy Associate Attorney General.  In 2007, Katsas also became Acting Associate Attorney General upon the resignation of William Mercer.  He served until the confirmation of Kevin O’Connor to the role in 2008.  Upon O’Connor’s confirmation, Katsas served as the Assistant Attorney General for the Civil Division.

In 2009, upon the election of President Barack Obama, Katsas returned to Jones Day, working in the firm’s Issues and Appeals section.  Upon the election of President Donald J. Trump in 2016, Katsas joined the White House as Deputy Assistant to the President and Deputy White House Counsel.  He currently serves in that capacity.

Political Activity

Katsas is a political conservative and virtually all his political contributions have been to Republicans.[2]  Among his more prominent contributions, Katsas donated $2300 to Sen. Ted Cruz’s Presidential Campaign.[3]  Katsas also donated $1000 to Sen. Chuck Grassley, who as Chairman of the Senate Judiciary Committee, will oversee Katsas’ confirmation.[4]  Katsas’ wife, Simone, has also donated exclusively to Republicans, including $3700 to Cruz, $2700 to President Trump’s campaign, and $2000 to the Mitt Romney campaign in 2012.[5]

Additionally, Katsas served as an advisor on the Bush-Cheney campaign in 2000, and served as a legal advisor during the Florida Recount process.

Legal Career

Given the breadth of Katsas’ legal career, we have broken it down into three main sections for analysis: his work at Jones Day; his work at the Department of Justice; and his work at the White House Counsel’s Office.

Jones Day (1992-2001; 2009-2017)

After his clerkship with Justice Thomas, Katsas joined the Issues and Appeals section of the litigation group of Jones Day as an associate.  This involved both trial and appellate work, including briefing at the U.S. Supreme Court.  In 1999, Katsas was elevated to be a partner at Jones Day.  As noted earlier, Katsas was also a legal observer in Bush v. Gore.

While Katsas left Jones Day in 2001 to go to the Justice Department, he returned in 2009 following the election of President Obama.  During his second stint at Jones Day, Katsas notably led the challenge to the individual mandate of the Affordable Care Act.[6]  Katsas was one of the attorneys to appear before the Supreme Court, arguing that the suit was not barred under the Anti-Injunction Act.[7]  Katsas also represented Florida in its attempt to purge alleged fraudulently registered voters from its voter rolls.[8] He was also involved in a successful challenge to recess appointments to the National Labor Relations Board (NLRB) made by President Obama.[9]

In addition, Katsas also represented RJR Nabisco, Inc. in a successful action to reverse a decision holding that the Racketeer Influenced and Corrupt Organizations Act (RICO) had extraterritorial application.[10]

Department of Justice (2001-2009)

In 2001, Katsas joined the Department of Justice as the Deputy Assistant Attorney General.  In this capacity, Katsas supervised the Civil Division’s appellate attorneys and argued several controversial cases before the federal court of appeals.  In one of his earliest cases, Katsas defended actions to prevent the implementation of Oregon’s Assisted Suicide Law.[11]  Katsas also defended the government in a number of significant national security cases, including actions involving the secrecy of immigration hearings,[12] and the war-making powers of the president.[13]  Additionally, Katsas sued to prevent the disclosure of government records about Vice President Cheney’s energy policy task force,[14] and to defend a statute requiring universities accepting federal funding to allow military recruiters on campus.[15]

In 2006, upon moving to the Office of the Attorney General, Katsas handled several deeply divisive appeals. Notably, Katsas was the primary appellate attorney defending the federal Partial-Birth Abortion Ban.[16]  Katsas also argued the Boumediene v. Bush case at the D.C. Circuit level, defending the Military Commissions Act of 2006, which suspended the writ of habeas corpus, as constitutional.[17]  The Supreme Court ultimately struck down the law.[18]

Late in his tenure at the Department of Justice, Katsas argued before the Ninth Circuit that the Pledge of Allegiance did not violate the Establishment Clause.[19]  He also argued at the Supreme Court against an Eritrean prison guard seeking asylum in the United States.[20]

White House Counsel’s Office (2017-Present)

In 2017, Katsas joined the White House as a Deputy White House Counsel and Deputy Assistant to the President.  In this role, Katsas serves as “in-house counsel” to the senior staff in the White House.  Additionally, Katsas also has responsibilities with the selection of candidates for executive and judicial positions.

Without the consent of the White House (his client), Katsas is precluded by privilege from discussing much of his work at the White House Counsel’s Office.  Nevertheless, speculation has already been raised about Katsas’ involvement in the firing of FBI Director James Comey, the Administration’s executive orders on healthcare, and the travel ban.[21]

Overall Assessment

Nomination to the D.C. Circuit invites controversy.  In the last twenty years, fifteen nominees have been put forward for the court (including Katsas), only nine of whom were actually confirmed, and only two of whom were confirmed without opposition.[22]  I feel fairly safe in predicting that Katsas will not be joining that latter group.

Setting aside the D.C. Circuit’s uniqueness, Katsas is a nominee who would draw controversy no matter which court he was tapped for.  First, Katsas’ time in the Bush Administration has him on record defending the ban on partial-birth abortion, more secrecy in immigration proceedings and enemy combatant trials, and the suspension of habeas corpus for Guantanamo detainees.  Second, as a private attorney, Katsas has challenged many liberal initiatives, from his notorious challenge to the individual mandate to his lesser-known but more lethal challenge to the recess appointments to the NLRB.  Third, Katsas has advocated conservative legal positions in the media, including testifying in favor of tight pleading standards that restrict access to court,[23] and the constitutionality of the Defense of Marriage Act.[24]  Finally, there is his current role as the attorney for (and as some view it, the enabler to) an Administration embroiled in legal and ethical controversy.  As such, Katsas was never the kind of nominee to sail to confirmation.

Nevertheless, there are many good reasons for even skeptical senators to support Katsas.  First, Katsas’ qualifications for the position are unquestionable.  Second, while Katsas is strongly conservative, there is no indication that he is doctrinaire or unreasonably so.  Third, Katsas does not have the record of intemperate partisan advocacy that other nominees, such as Judge John Bush, have demonstrated.  Finally, at fifty-three, Katsas is one of the older nominees that Trump could have selected for this court.  Rejecting Katsas could prompt the nomination of a much younger conservative such as Kirkland & Ellis partner Kate O’Scannlain or Katsas’ deputy James Burnham.

Considering all these factors together, the confirmation hearing tomorrow will be a good sign of the avenue senators intend to take with Katsas, and of the timeline of Katsas’ ultimate confirmation.


[1] Damon Root, Janice Rogers Brown, America’s Most Libertarian Federal Judge, is Retiring, Reason, July 12, 2017, http://reason.com/blog/2017/07/12/janice-rogers-brown-americas-most-libert.  

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=katsas&order=desc&sort=D (last visited Oct. 15, 2017).

[3] See id.

[4] Id.

[5] See id.

[6] See NFIB v. Sebelius, 567 U.S. 519 (2012).

[7] National Federation of Independent Businesses v. Sebelius, Oyez, https://www.oyez.org/cases/2011/11-393 (last visited Oct 16, 2017).

[8] Jones Day: Suing the Government on ACA and More, Metropolitan Corp. Counsel, Northeast Edition, Sept. 2012, Vol. 20 No. 9 Pg. 13.  

[9] Id. 

[10] See RJR Nabisco, Inc. v. The European Community, 579 US __ (2016).

[11] William McCall, Federal Judge to Consider Oregon Assisted Suicide Law, The Topeka Capital-Journal, Mar. 23, 2002, http://cjonline.com/stories/032302/usw_suicide.shtml#.WeQQ5hOPIWo. See also Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004), aff’d, 546 U.S. 243 (2006).

[12] See Neil Lewis, Threats and Responses: The Detainees; U.S. Says Revealing Names Would Aid Al Qaeda, N.Y. Times, Nov. 19, 2002, A6 P. 19.

[13] See Michael Powell, Appeals Court Weighs Bush’s War Powers; Act of Congress Needed for Iraq Invasion, Suit Says, Wash. Post, Mar. 12, 2003, A14.

[14] See Henri E. Cauvin, Judges Question U.S. Move in Cheney Suit; Panel Criticizes Request for Intervention in Two Groups’ Bid for Task Force Data, Wash. Post, Apr. 18, 2003, A02. See also In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003), vacated, 542 U.S. 367 (2004), on remand, 406 F.3d 723 (D.C. Cir. 2005) (en banc).

[15] FAIR v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), rev’d, 547 U.S. 47 (2006).

[16] See Planned Parenthood v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d, 550 U.S. 124 (2007), and Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d, 550 U.S. 124 (2007).

[17] Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

[18] Boumediene v. Bush, 553 U.S. 723 (2008).

[19] Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010).

[20] Negusie v. Holder, 555 U.S. 511 (2009).

[21] Josh Gerstein, Court Nominee Faces Scrutiny Over Trump White House Role, Politico, Oct. 16, 2017, http://www.politico.com/story/2017/10/16/katsas-trump-judge-nominee-confirmation-243798.  

[22] Then-Judge John Roberts in 2003 was confirmed via voice vote, and Judge Sri Srinivasan was confirmed 97-0 in 2013.

[23] Kimberly Atkins, Congress Questions Pleading Decisions; Lawmakers, Witnesses Discuss Impact of ‘Iqbal’, ‘Twombly’ Rulings, Lawyers Weekly USA, Oct. 28, 2009.

[24] Katharine Q Seelye and Ethan Bronner, U.S. Appeals Court Turns Back Marriage Act As Unfair to Gays, N.Y. Times, June 1, 2012, A0 P. 1.

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