Senate Invokes Cloture on Thapar’s Nomination

Today, the U.S. Senate invoked cloture on Judge Amul Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit.  The 52-48 vote was surprisingly close, with every Democrat voting against cloture.

Democrats’ unified opposition to Thapar is notable, as his record is not particularly extreme, and several mainstream legal groups, including the National Asian Pacific American Bar Association support his nomination.  If anything, Thapar’s record is more moderate than that of Justice Neil Gorsuch.  Yet, the four Democrats who supported cloture for Gorsuch all voted against Thapar.  Three factors may explain the unanimity:

  1. Thapar is Trump’s first lower court nomination.  By establishing firm opposition to him, Democrats are setting a baseline for their standards, refusing to vote for any nominee to Thapar’s right.
  2. Thapar is a prospective Supreme Court nominee if Justice Kennedy retires.  Voting against him unanimously gives Democratic Senators cover to reject Thapar if he is ever elevated.
  3. Thapar’s nomination has moved incredibly quickly.  He spent a mere five days on the Senate Executive Calendar before cloture was filed.  In contrast, during the Obama Administration, Republicans made even non-controversial Obama appointees wait months before a confirmation vote.  By voting no, Democrats are registering their opposition to the speed of Thapar’s confirmation.

At any rate, Thapar’s nomination can be compared to that of Judge David Hamilton, the first circuit court nominee President Obama sent to the Senate.  Hamilton, who had a relatively moderate profile, and strong support from Indiana Republicans, faced intense Republican opposition and accusations of being a judicial activist.  After languishing on the floor for over five months, Hamilton was confirmed with the support of just one Republican Senator (his home state Senator Richard Lugar).

Tomorrow, we will see if Thapar can manage even the one cross-party vote that Hamilton got.  Based on the vote today, I wouldn’t count on it.

UPDATE – John K. Bush Criticized Cruz, Abortion, and the Affordable Care Act As a Blogger.

Approximately one hour ago, Zoe Tillman of BuzzFeed News reported that John K. Bush, nominated for the Sixth Circuit, has an extensive history of politically-charged blog posts at Elephants in the Bluegrass under the pseudonym, G. Morris.  Among the more impolitic of these are posts calling Sen. Ted Cruz (R-TX) a “sore loser”, calling for the repeal of the Affordable Care Act,  criticizing Roe v. Wade, and comparing Barack Obama to Monica Lewinsky.

In our analysis of Bush’s record yesterday, we noted the concerns that had already been raised over his statements about New York Times v. Sullivan, and his generally conservative record. The new posts on Elephants in the Bluegrass raise legitimate questions about Bush’s willingness to set aside ideology and give all litigants a fair hearing.  Needless to say, with Cruz as one of his questioners, Bush’s confirmation hearings are shaping up to be very interesting.

 

Senate Judiciary Committee Advances Thapar’s Nomination to the Floor

Today, the Senate Judiciary Committee advanced the nomination of Judge Amul Thapar to the U.S. Court of Appeals to the Sixth Circuit.  The vote to move his nomination was 11-8, with all Republicans voting in favor, and all Democrats voting against (Senator Mazie Hirono did not cast a vote).

In explaining her opposition, Senator Feinstein (D-CA), the ranking member of the committee, noted Thapar’s decision in Winter v. Wolnitzek.  This blog discussed Winter and other cases where Thapar had been reversed here.

Thapar now joins a small but growing list of nominees waiting for a floor vote.  Given his close ties to Senate Majority Leader Mitch McConnell, it would not be surprising to see Thapar called up for a confirmation vote before the Memorial Day recess.

President Trump Announces Ten Nominees to the Federal Bench

Today, President Trump nominated five judges to the U.S. Court of Appeals.  They are:

John K. Bush, a partner at the Louisville office of Bingham, Greenebaum, Doll LLP. and the President of the Louisville Chapter of the Federalist Society, was nominated to the Sixth Circuit Court of Appeals.

Justice Joan Larsen of the Michigan Supreme Court, a former clerk of Justice Antonin Scalia, was nominated to the Sixth Circuit Court of Appeals.

Amy Coney Barrett, a professor at the University of Notre Dame Law School, and a former clerk of Justice Antonin Scalia, was nominated to the Seventh Circuit Court of Appeals.

Justice David Stras of the Minnesota Supreme Court, a former clerk of Justice Clarence Thomas, was nominated to the Eighth Circuit Court of Appeals.

Kevin Newsom, a partner at Bradley Arant Boult, and a former clark of Justice David Souter, was nominated to the Eleventh Circuit Court of Appeals.

Trump also nominated four judges to the U.S. District Courts.  They are:

Terry Moorer, a U.S. Magistrate Judge, was nominated to the U.S. District Court for the Middle District of Alabama.

Dabney Friedrich, a former member of the U.S. Sentencing Commission, was nominated to the U.S. District Court for the District of Columbia.

David Nye, a judge on the Sixth District Court of Idaho, was nominated to the U.S. District Court for the District of Idaho.

Scott L. Palk, an assistant law dean at the University of Oklahoma Law School, was nominated to the U.S. District Court for the Western District of Oklahoma.

Finally, Trump nominated Damien Schiff, a senior attorney with the Pacific Legal Foundation, was nominated to the U.S. Court of Federal Claims.

Judge Neil Gorsuch CONFIRMED as Associate Justice to the United States Supreme Court

The U.S. Senate has confirmed Judge Neil Gorsuch to serve as Associate Justice to the U.S. Supreme Court, filling the seat vacated last year with the death of Associate Justice Antonin Scalia.  The 49 year old Gorsuch will be President Trump’s first appointee to the high court, as well as the first Article III judge he has successfully appointed.

The final roll call on the nomination was 54-45, the second narrowest margin for a successful Supreme Court nominee in modern times (the narrowest being Justice Clarence Thomas’ 52-48 confirmation in 1991).  Every Republican Senator supported confirmation, joined by 3 Democratic Senators: Senators Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), and Joe Manchin (D-WV).