New Fronts in the Judicial War: Will Progressives Adopt the Conservative Model on State Courts and Solicitors General?

The 2018 elections have come and gone, with both sides finding something to smile about in the results.  For Republicans, the reinforced Senate majority ensures that Trump can continue to fill federal vacancies with conservatives.  However, all is not lost for Democrats.  Rather, they can adopt the successful model used by conservatives during the Obama Administration and use the states to advance progressive jurisprudence.  Both state court appointments and solicitor general appointments have generally been used effectively by Republicans to build a bench of conservative judges and legal leaders.  With electoral victories on the state level, it remains to be seen if progressives will catch up on these fronts.

State Courts

Let’s throw out a hypothetical.  Imagine we are back in 2017: President Trump has just been elected with a Republican Senate.  Let’s say that Justice Anthony Kennedy announces his retirement in March 2017, announcing that he will retire in September of that year, giving the President six months in which to appoint his successor.  It is a golden opportunity for Republicans to take a solid majority on the Supreme Court.  However, instead of nominating Brett Kavanaugh, the Trump Administration nominates no one.  The months tick down, one by one, and no nomination comes forward from the Trump Administration.  September 2017 comes by, the Justice steps down, and still no nomination has come.  The Supreme Court is forced into a 4-4 split, and important decisions are deadlocked.  And still, no nominee is put forward.  Now imagine we are in the present day and the Court is still split 4-4, with no nomination coming from the Administration and no explanation.

This hypothetical may seem absurd, but it is exactly what is currently happening in California, where Gov. Jerry Brown has essentially forfeited a golden opportunity to reshape the California Supreme Court, letting the court’s swing seat remain vacant for well over a year for no reason at all.

State Supreme Courts, which interpret state laws and constitutional provisions, are immensely powerful.  In fact, many of their decisions are unreviewable, even by the Supreme Court.  As such, it is remarkable to see the lack of attention given their way by progressives.  Alongside Brown’s failure to make an appointment to the California Supreme Court, Colorado Gov. Hickenlooper appointed two Republicans to the Colorado Supreme Court, resulting in the partisan balance on the court actually becoming more conservative during his tenure as Governor.  Similarly, in New York, Gov. Andrew Cuomo has largely avoided appointing outspoken liberals to the New York Court of Appeals, instead choosing moderates and conservatives including Judge Michael Garcia, a Republican who previously served as U.S. Attorney under President Bush.  In Connecticut, Gov. Dannel Malloy’s nominee to be Chief Justice of the Connecticut Supreme Court was rejected by the Democratic Senate after moderate Democrats defected.

In contrast, Republican Governors have used their appointment power effectively to choose young conservatives for the state benches.  Gov. Pete Ricketts, for example, tapped Justice Jonathan Papik, only 36, to the Nebraska Supreme Court in 2018.  Similarly, Gov. Nathan Deal in Georgia has appointed a bevy of young conservatives, Justices Nels Petersen, Britt Grant (now on the 11th Cir.), Sarah Hawkins Warren, and Charlie Bethel.  From Texas to Ohio to Indiana, Republican Governors have cemented conservative majorities on the high court through their appointments.

Now that the 2018 elections has resulted in the largest increase in new Democratic Governors since 1986, progressives have a strong opportunity to reshape the bench in many states.  With the vacancy on the California Supreme Court still pending, it provides an early sign of how seriously they will take this challenge.

Solicitors General

The 2018 election also saw Democrats taking control of the majority of state attorney general’s offices in the country.  Attorneys general are important not just because of their investigative and prosecutorial powers, but because they are able to, through their appointment of state solicitors general, shape the legal landscape of their states.

State solicitors general are the leading appellate advocate for their states, shaping and directing arguments before state and federal courts.  So far, most solicitors general are appointed by the attorney general.  Most Republican attorneys general have taken this opportunity and chosen young conservatives and future legal pioneers.  For example, Alabama Solicitor General Andrew Brasher is only 37, Florida Solicitor General Amit Agarwal is 42, Georgia Solicitor General Andrew Pinson is around 32, and Oklahoma Solicitor General Mithun Mansinghani is only 31 (and was just 29 when he was selected as Solicitor General).  In comparison, Democratic attorneys general have selected senior attorneys already established in their career.  For example, New York Solicitor General Barbara Underwood is 74, California Solicitor General Edward DuMont is 57, and Connecticut Solicitor General Jane Rosenberg is around 60 (an exception to this is Washington Solicitor General Noah Purcell, who is 38).

While the level of experience that Underwood, DuMont, and Rosenberg bring is undeniable, choosing younger solicitors general makes more sense from a movement perspective.  First, it helps season young attorneys early in their career.  Second, it builds a pipeline of potential judicial candidates.  The Trump Administration has been very effective at tapping current and former state solicitors general for the federal bench, building the next generation of conservative legal leaders.

Ohio Gubernatorial candidate Richard Cordray was a politician who understood this well, having himself served as Ohio Solicitor General in his early 30s.  As Attorney General, Cordray tapped Benjamin Mizer to serve as Ohio Solicitor General.  Mizer, who was only 31 at the time of his appointment, went on to serve the Obama Administration as Principal Deputy Assistant Attorney General for the Civil Division, and is poised to be a Sixth Circuit and Supreme Court candidate under a Democratic Administration.

So far, newly elected New York Attorney General Tish James has chosen to reappoint Underwood to serve as Solicitor General.  It’ll be interesting to see if other Attorneys General will follow James’ lead or Cordray’s.

Overall, despite the attention it gets, the federal bench is not the only front that legal conservatives and progressives fight over.  Even as the federal bench shifts under the weight of Trump appointees, state benches can provide a countervailing force.  As such, they are an important front to observe in the coming months.

Ten Upcoming Judicial Nomination Battles

This week, Justice Brett Kavanaugh sat for his first arguments at the U.S. Supreme Court.  His path to those arguments, however, left countless Americans angry and relations between the two parties at a new low.  Unfortunately, the fight over the judiciary has not ended with Kavanaugh’s confirmation.  Instead, it has returned to a familiar front: lower court nominations.  With Senate Majority Leader Mitch McConnell pushing for the confirmation of over thirty pending lower court nominations on the Senate Executive Calendar, many more confrontations are upcoming.  Below, we highlight ten nominees currently pending on the Senate floor who are expected to cause controversy, ranked in order from least to most likely to trigger a fight.  (All ten nominees passed through the Senate Judiciary Committee on 11-10 party-line votes)

10. Cam Barker – Eastern District of Texas

John Campbell “Cam” Barker, the 38-year-old Deputy Solicitor General of Texas, has been nominated for a seat on the U.S. District Court for the Eastern District of Texas.  As Deputy Solicitor General, Barker joined efforts by Attorney General Ken Paxton to challenge Obama Administration initiatives and protect Trump Administration efforts.  In his three years in that position, Barker litigated the challenge (alongside now-Fifth Circuit Judge Andy Oldham) against the Obama Administration’s DAPA initiatives on immigration, defended Texas’ restrictive voter id laws, and sought in intervene in support of President Trump’s travel bans.  Barker also litigated to crack down on “sanctuary cities” in Texas, challenged the contraceptive mandate in the Affordable Care Act, and helped to defend HB2, restrictions on women’s reproductive rights struck down by the Supreme Court in Whole Woman’s Health v. Hellersdedt.

In responding to questions from members of the Senate Judiciary Committee, Barker argued that his work at the Solicitor General’s Office represented positions “of my clients, as opposed to my personal positions.”  Nevertheless, Democrats have argued that Barker’s work reflects a conservative ideology that is likely to tilt his judicial rulings.

9. Stephen Clark – Eastern District of Missouri 

Stephen Robert Clark Sr. is the founder and managing partner of the Runnymede Law Group in St. Louis, Missouri.  Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage.  For example, Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.”

Unlike the other nominees on this list, Clark did have a blue slip returned from the Democratic home-state senator, namely Sen. Claire McCaskill.  Nevertheless, Clark was voted out of the Senate Judiciary Committee on a 11-10 vote, with all Democrats opposed.  His nomination is expected to draw opposition from pro-choice and reproductive rights organizations.

8. Justice Patrick Wyrick – Western District of Oklahoma

The 37-year-old Wyrick made waves in 2017 when he became the youngest candidate to be added to the Trump Administration’s Supreme Court shortlist.  Wyrick, who currently serves on the Oklahoma Supreme Court, built up a record of aggressive litigation as Oklahoma Solicitor General under then-Attorney General Scott Pruitt.  His nomination to the Oklahoma Supreme Court in 2017 was itself controversial due to Wyrick’s purported lack of ties to the Second District, the District from which he was appointed.

Since his nomination to the U.S. District Court for the Western District of Oklahoma, Wyrick has been criticized for his relative youth, lack of experience, and alleged ethical issues from his time as Solicitor General.  Specifically, two incidents have been raised.  First, while defending Oklahoma’s death penalty protocol in Glossip v. Gross, Wyrick’s office mis-cited the recipient of a letter sent to the Texas Department of Corrections in their brief and was forced to issue a letter of correction.  Additionally, Wyrick was directly called out in oral argument by Justice Sonia Sotomayor for mis-citing scientific evidence.  Second, Wyrick had engaged in communications with Devon Energy, an energy company whose lobbyist had ghost-written letters sent out by Attorney General Scott Pruitt.  The Leadership Conference on Civil and Human Rights has alleged that Wyrick was aware and potentially complicit in the ghost-writing.

7. Mark Norris – Western District of Tennessee

The 63-year-old Norris currently serves as the Majority Leader in the Tennessee State Senate.  His nomination is one of the longest pending before the U.S. Senate, having been submitted on July 13, 2017.  Norris has twice been voted out of the Judiciary Committee on party-line votes, with Democrats objecting to his conservative record in the Tennessee State Senate.  In particular, they note that Norris pushed to block the resettlement of Syrian refugees in Tennessee, suggesting that it would allow “potential terrorists” to enter the state.  For his part, Norris has argued that his work in the Tennessee State Senate was on behalf of his constituents, and that it would not animate his work on the bench.

6. Wendy Vitter – Eastern District of Louisiana

The general counsel to the Roman Catholic Archdiocese (and the wife of former Senator David Vitter), Wendy Vitter has been nominated to the U.S. District Court for the Eastern District of Louisiana.  Vitter drew criticism at her hearing for refusing to say that the Supreme Court’s decision in Brown v. Board of Education was correctly decided (a decision this blog noted at the time could be justified).  Vitter has also drawn sharp criticism for her pro-life and anti-birth control activism, including her apparent endorsement of the views of Angela Lanfranchi, who has suggested that taking birth control increases women’s chances of being unfaithful and dying violently.

5. Howard Nielson – District of Utah

The son of a former Congressman, Howard C. Nielson Jr. has been nominated for the U.S. District Court for the District of Utah despite being based at Cooper & Kirk in Washington D.C.  Nielson has two powerful Judiciary Committee members in his corner, Sens. Orrin Hatch and Mike Lee.  Nevertheless, Nielson has faced strong opposition based on his work in the Office of Legal Counsel under President Bush.  Specifically, Democrats have objected to Nielson’s alleged involvement in the approval of the controversial memos that justified the use of torture.  In his defense, Republicans have argued that Nielson was not involved in the drafting of the memos and worked to get them rescinded.  Democrats also object to Nielson’s work defending Proposition 8, the California ballot measure that revoked the right of same-sex couples to marry.  In particular, LGBT groups have complained that Nielson tried to move for the presiding judge in the case, Judge Vaughn Walker, to recuse himself based on the judge’s sexual orientation.

4. Ryan Nelson – Ninth Circuit

The General Counsel for Melaleuca, Inc. in Idaho Falls, Nelson’s nomination to be Solicitor of the Department of the Interior was pending when he was tapped for the U.S. Court of Appeals for the Ninth Circuit.  Nelson has drawn critical questions from Committee Democrats regarding his work at Melaleuca, particularly focused on his filing of defamation actions against Mother Jones for their work investigating Melaleuca Founder Frank Vandersloot.  The lawsuit against Mother Jones has drawn criticism for chilling First Amendment rights and trying to silence investigative journalism.

3. Matthew Kacsmaryk – Northern District of Texas

Kacsmaryk, a nominee for the U.S. District Court for the Northern District of Texas, currently serves as Deputy General Counsel for the First Liberty Institute, a non-profit firm focused on cases involving “religious freedom.”  In his role, Kacsmaryk has been particularly active on LGBT rights issues, challenging the Obama Administration’s efforts to ban discrimination against LGBT employees by government contractors, and its initiatives on transgender rights in public schools.  In his writings, Kacsmaryk has criticized same-sex marriage alongside no-fault divorce, the decriminalization of consensual pre-marital sex, and contraception as weakening the “four pillars” of marriage.  He has also lobbied for legislation exempting individuals had religious beliefs or moral convictions condemning homosexuality from civil rights enforcement.  Kacsmaryk’s advocacy has drawn the strong opposition of LGBT rights groups.

2. David Porter – Third Circuit

A Pittsburgh-based attorney, Porter was nominated to the U.S. Court of Appeals for the Third Circuit over the express opposition of home state senator Bob Casey.  As Republicans processed Porter over Casey’s objection, Democrats raised both procedural and substantive objections to Porter, including his writings urging the Supreme Court to strike down the Affordable Care Act’s individual mandate and his previous advocacy against the confirmation of Justice Sonia Sotomayor.  In his own statement, Casey pulled no punches, stating that Porter had “an ideology that will serve only the wealthy and powerful as opposed to protecting the rights of all Americans.”

1. Thomas Farr – Eastern District of North Carolina

Perhaps no lower court nominee has incited as much anger as Farr, the Raleigh based litigator tapped for the longest pending federal judicial vacancy in the country.  Farr had previously been tapped for this seat in the Bush Administration but was blocked from a final vote by the then-Democratic-controlled Senate.  Through the Obama Administration, this seat was held over by Sen. Richard Burr’s refusal to return blue slips on two African American nominees, including one recommended by him.

Since Farr’s renomination by Trump, he has faced opposition from civil rights groups, including one who has referred to him as a “product of the modern white supremacist machine.”  At issue is Farr’s representation of the North Carolina legislature as it passed a series of restrictive voting laws with a disproportionate impact on minority communities.  Many of these restrictions were struck down by the Fourth Circuit, which noted that the laws targeted African Americans with “surgical precision.”  Additionally, Farr has been charged with sending out thousands of postcards to African American voters in 1990 threatening to have them arrested if they voted.  (Farr has denied this latter charge, arguing that he was unaware that the postcards had been sent out.)  With Democrats and civil rights groups convinced that Farr worked to disenfranchise African Americans, and Republicans equally passionate in their support, Farr’s ultimate confirmation is sure to draw a level of intensity that district court judges rarely evoke.

 

Judge Kavanaugh and the Failure of the Vetting Process

This blog started twenty months ago with a post titled “Why Vetting Matters.”  That post noted:

“The modern appointments process involves several layers of “vetting” of potential judicial nominees.  Candidates are generally first evaluated by their home state Senators and their staff.  Then, they are vetted again by the White House Counsel’s office and the Department of Justice.  They are then examined by the FBI and the American Bar Association (ABA).  Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum.  At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.”

Today, what we are seeing with regard to Judge Brett Kavanaugh is a failure of that process.  A compelling and credible allegation of sexual assault has been raised against the judge, an allegation that did not surface during the vetting that he underwent for the Supreme Court, nor during his prior vetting for his current seat on the D.C. Circuit.  Some have used this point to suggest that the allegation, raised by Dr. Christine Blasey Ford, should not be believed.  I would argue, rather, that it is an indictment of our current vetting process and its limitations.

As noted in our opening post, the current vetting system for judicial nominees involves several entities, including the White House, the Department of Justice, the FBI, and Senate staff.  In their investigation, the “vetters”, depending on their particular role, review all the written and background material submitted by the nominee, do criminal background checks, and conduct interviews with the nominee’s friends, colleagues, and associates.  Again, depending on their role, the vetters might be looking for ideological inconsistencies, intellectual ability, or issues with the nominee’s truthfulness or character.  The involvement of these different entities, along with outside groups such as the American Bar Association, is, in theory, supposed to ensure a thorough vetting of any nominee.

In practice, however, there are still holes in this process.  Take allegations of sexual assault, for example, comparable to those made by Dr. Ford.  Where the allegations have not been reported to the police, they will not show up in a criminal background check.  Unless there has been news coverage or some public record of the allegations, they will not show up in Google or record searches.  Furthermore, unless the nominee volunteers the information, it will not be revealed in the disclosures.  As such, investigators generally probe such allegations of misconduct in their private interviews with the nominee’s friends, family, and colleagues.

However, even these interviews are unlikely to reveal such misconduct.  Most DOJ, FBI, and ABA interviews are conducted either with friends and colleagues invested in the nominee’s success, or, with opposing counsel and judges who are too far removed to be aware of, let alone comfortable revealing, any allegations of impropriety.  As such, unless an individual alleging misconduct is directly interviewed, it is unlikely that their allegations would be revealed in the interview process.

In the case of Judge Kavanaugh, the flaws in the vetting process may have been magnified by its speed.  Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018.  Judge Kavanaugh was announced as the nominee on July 9, just 12 days later.  In comparison, President Obama nominated Justice Sotomayor 26 days after Justice Souter’s leaked retirement in 2009, and Justice Kagan 31 days after Justice Stevens’ retirement in 2010.  Similarly, his nomination of Judge Merrick Garland in 2016 came 31 days after Justice Scalia’s untimely passing.  While Justice Gorsuch’s nomination came 11 days after President Trump’s inauguration, it was to a vacancy that had been pending almost a year.  Even assuming that Judge Kavanaugh had been partially vetted before Justice Kennedy’s retirement, the pace of his nomination was still incredibly fast.

Similarly, the Senate Judiciary Committee held a hearing on Judge Kavanaugh less than two months after his nomination despite the Committee not having a chance to look over significant portions of his record.  As such, at the time of the hearing, only one of the 21 Judiciary Committee senators was even aware of Dr. Ford’s allegations.

At any rate, any deficiencies in the process could have been corrected once Dr. Ford’s allegations went public.  At that point, the White House could have reopened Judge Kavanaugh’s background check, allowing the FBI to investigate the allegations (something they have done hundreds of times before).  The White House chose not to.  The Senate Judiciary Committee could have chosen to take sworn testimony from Dr. Ford’s corroborators, including those with whom she shared the allegations, and those who could corroborate the events in question.  The Committee chose not to.

Instead, the American people were subjected to the spectacle of a sexual assault survivor being cross-examined by a prosecutor, while a gallery of stone-faced senators watched.  No other witnesses were called, and no follow up questions were asked.  If it was not for a carefully-negotiated rebellion on the part of Sen. Jeff Flake, there would have been no follow-up from Dr. Ford’s testimony at all.

Regardless of what the reopened FBI investigation uncovers, this saga has already laid bare the weaknesses of the current vetting process.  Perhaps there is no foolproof way that unreported allegations of sexual assault can be uncovered through the vetting process.  However, it is important to recognize that.  Given the documented barriers to reporting sexual assault claims, there are likely other unreported claims against other federal judges and nominees.  As such, the next time that similar allegations are raised against a nominee, vetters may need to look in the mirror before asking why the allegations were not uncovered earlier.

This blog reflects solely the views of the author and does not reflect the positions of any of the other writers or researchers at the Vetting Room.

 

 

How to Fight a Supreme Court Nomination (And Win)

In case you were, like me, on a plane without wifi this afternoon, Justice Anthony Kennedy is retiring.  Many on Twitter and in the blogosphere (not to mention the mainstream news) are bemoaning the loss of the Supreme Court “swing vote,” and decrying the “shortlist” put forward by the Trump Administration.  Others, of course, are celebrating.  Setting aside the dubious labeling of Justice Kennedy’s “legacy” happening, I want to address one key question: can liberals defeat the confirmation of Kennedy’s successor? And if they can, how will such a defeat happen?

A gut answer is that they can’t.  Not that it’s impossible to defeat a Supreme Court nomination (see Merrick Garland), but it’s pretty difficult to do so while the President’s party controls the U.S. Senate.  Five out of the last six defeated Supreme Court nominees went down before a Senate controlled by the opposing party.  The exception, Harriet Miers, was doomed by conservative opposition, not the Democratic minority.  As such, many observers have resigned themselves to Trump’s next nominee replacing Kennedy.

However, this does not mean that liberals can’t defeat a Trump SCOTUS nominee.  In fact, I’d proffer that they can, provided that certain factors go their way.

1. Maintain Messaging Discipline

“I am not a member of any organized party – I am a Democrat”

The Will Rogers quote above may have been tongue in cheek, but it perfectly encapsulates Democrats’ current problem.  Compared to Republicans, Democrats have a greater amount of ideological diversity within their party.  This diversity has allowed Democrats to maintain a close gap in the Senate despite being sharply outnumbered in the number of states that lean in their direction.  However, this diversity also means that it is difficult to keep the caucus united.  However, if Democrats are to win a SCOTUS battle, it’ll be because they maintained, if not unity, then messaging discipline.

Take the example of Merrick Garland.  Within hours of Justice Scalia’s passing, Senate Majority Leader Mitch McConnell announced that he would leave that seat open until after the 2016 Presidential election.  That became the official stance of the Republican Party relatively quickly and stayed consistent throughout the election.  To win this battle, Democrats need to maintain a similar messaging discipline.

2. Highlight the Right Messenger

Let’s say you’re a swing voter who is undecided about the new nominee President Trump has sent forward for Kennedy’s seat.  The nominee seems smart, competent, and reminds you of your next door neighbor (the one who always has his lawn mowed).  Now, you hear your Democratic senator call the nominee a “conservative ideologue” and an “extreme right-wing jurist.”  Is that going to convince you to oppose the nominee?  More importantly, will it persuade you to pick up the phone and call your senator?  My guess is no.

Now, instead, let’s say you see the following ad on television:

A young man in a military uniform stands before an American flag.  He explains that he and his brother enrolled in the military together to serve their country; that they served several tours of duty together.  Then one day, his brother died.  Not because of the enemy, but because the military contractor in charge of making body armor cut corners and sent him shoddy equipment.  He goes on: his family sued the contractor, demanding justice, but that the case was thrown out by the judge on a technicality.  Another judge would have given them a chance to refile.  This judge didn’t care.  And now the President wants to give this judge a promotion.  

Isn’t that more likely to move you to action?

Even if you disagree with the example I’ve laid out, there is evidence that campaigns with a personal touch are remarkably effective.

In 2014, conservative groups successfully defeated the nomination of NAACP attorney Debo Adegbile to head the DOJ’s Civil Rights Division.  The opposition was largely based on Adegbile’s representation of Mumia Abu-Jamal, who was convicted of the 1981 murder of Philadelphia police officer Daniel Faulkner.  Conservatives effectively leveraged the testimony of Maureen Faulkner, the officer’s widow, who publicly urged senators to oppose Adegbile.

More recently, California voters threw out Judge Aaron Persky based on his sentencing Brock Turner, convicted of sexual assault, to a six months in prison.  Persky’s recall, while supported by political officials, was ultimately kickstarted by the victim’s statement going viral, reinforcing the theme: highlighting the right messenger is key.

If Democrats do defeat the next SCOTUS nominee, it’ll be because they stepped back and highlighted the right messengers to make these arguments.

3. Raise the Political Cost of a Yes Vote

 

In 2014, I was meeting with the staffer of a Senate Democrat, a moderate and key swing vote, to urge the support of a particularly embattled nominee.  I listed all the reasons that the nominee was well-qualified for the position, explained the spuriousness of the opposition’s charges, and detailed the importance of filling this position.  The staffer  listened to me politely.  As I finished, he stated that he understood my points and added:

“If you want the senator to ignore the fact that constituents contacting the office in opposition outnumber supporters 10:1, that’s one thing; when it’s 100:1, our hands are tied.”

The staffer’s point was clear.  The merits of a particular stance on a nominee don’t ultimately decide the vote.  The vote is dictated by the political cost of voting yes.  In this case, the senator couldn’t vote to support the nominee unless the political cost was lower.

Similarly, if liberals want to defeat a Trump SCOTUS nominee, their top priority needs to be to highlight the political costs of a “yes” vote.  And this requires erasing the engagement gap.

4. Erase the Engagement Gap

Conservatives care more about courts than liberals.  They have for years.  It is because of their view on judges that Donald Trump is now President.  It is because of their view on judges that McConnell felt politically safe in holding open a Supreme Court seat for a new President to fill, and why he feels safe in filling Kennedy’s vacancy, even though we are less than six months from an election.

There are many reasons why this engagement gap exists, not the least of which being that conservatives have carefully tilled the ground on court issues for the last forty years.  Liberals, having focused on a variety of other issues, are now trying to catch up.  I feel safe in predicting that, without erasing the engagement gap on judges, liberals cannot win a SCOTUS fight.  And to erase the engagement gap, liberals need to build the appropriate infrastructure.

5. Build the Infrastructure

Name a prominent conservative organization:

Some of you would name the Federalist Society, the conservative legal organization whose membership card can be found in the wallets of many judges and nominees.  Others might suggest the National Rifle Association (NRA), one of the most powerful pro-gun lobbying groups in the country.  Other names should come to mind quickly: Focus on the Family; Moral Majority; Christian Coalition of America; Family Research Council, etc.  What do all these organizations have in common?  They are all involved in judicial politics (Now, the Federalist Society does not take positions on judges, but prominent FedSoc leader Leonard Leo advises the President on judicial issues).

Now name a prominent liberal organization:

Most of you would name the ACLU, which is one of the only organizations on the left whose fundraising and membership rival the conservative groups mentioned above.  However, unlike the groups noted above, the ACLU does not take a position on nominations and steers clear of judicial politics.

While other organizations, including Planned Parenthood, NARAL, the Leadership Conference, and People for the American Way, do get involved on judges, their ability to mobilize voters and constituents still pales in comparison.

Take an example:

The Judicial Crisis Network, run by Justice Thomas clerk Carrie Severino, has raised and spent millions to fight Obama judges and promote Trump’s picks.  Yet, no liberal equivalent existed until this year, when Demand Justice was founded.

To be clear, the infrastructure gap will not go away overnight, but Democrats will only be able to win a SCOTUS fight if they have managed to significantly narrow it.

 

As the SCOTUS fight unfolds and both sides flex their muscle, keep an eye on the five factors highlighted above.  Conservatives have shown how to win on judges for decades, but if liberals can maintain unity, highlight the right messenger, raise the political cost of a yes vote, erase the engagement gap, and build the infrastructure, they may be able to pull off an upset.

 

On the “Correctness” of Brown v. Board of Education

This morning, five judicial nominees testified before the Senate Judiciary Committee, the most controversial of whom was Wendy Vitter, tapped for the U.S. District Court for the Eastern District of Louisiana.  Among many sharp exchanges that Vitter had with Committee Democrats during the hearing, one was particularly notable:

Sen. Richard Blumenthal (D-Conn.) asked Vitter if she believed that Brown v. Board of Education, the seminal Supreme Court decision desegregating public schools, was correctly decided.  Vitter answered as follows:

“Senator, I don’t mean to be coy, but I think I get into a difficult…diff…difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.  Again, my personal, political, or religious views, I would set aside.  That is Supreme Court precedent.  It is binding.  If I were honored to be confirmed, I would be bound by it and of course I would uphold it.”

Blumenthal pressed his question and Vitter repeated her refusal, stating:

“And again, I would respectfully not comment on what could be my boss’ ruling, the Supreme Court.  I would be bound by it.  And if I start commenting on ‘I agree with this case or don’t agree with that case,’ I think we get into a slippery slope.”

Vitter’s answer has already been criticized by the Leadership Conference on Civil Rights, and judicial nominations guru Christopher Kang, among others.  It will no doubt be raised repeatedly by opponents to argue that Vitter is an opponent of the Brown decision and thus, unfit for the bench.  Setting aside any normative evaluation of Vitter, it is worth asking: how can a judicial nominee ethically answer Blumenthal’s question?

The “Correct” Answer

From a moral sense, there is little doubt Brown was correctly decided.  This is the consensus position of the legal community and of most (but not all) Americans.  As such, isn’t that the “correct” answer to the question?

Last month, Sixth Circuit nominee John Nalbandian seemed to agree, answering Blumenthal’s question as follows:

“Brown, Senator, is a seminal decision in the Supreme Court’s history and corrected an egregious error in Plessy v. Ferguson and I believe…I believe it was [correctly decided].”

However, about a minute later, Nalbandian was asked if  Roe v. Wade, which established the right to terminate a pregnancy, was correctly decided.  He said the following:

“I’m reluctant, and I think it would be inappropriate for me to go down a list of Supreme Court cases and say I think this case was rightly decided and that case was not, because I think it would call into question my partiality going forward.”

The problem here is that the two answers are essentially irreconcilable.  Regardless of one’s feelings about the cases, both Brown and Roe are binding precedents of the U.S. Supreme Court.  As such, it is truly odd that a nominee can comment on the “correctness” of one without compromising his impartiality, but not the other.

Nalbandian did attempt a distinction between Roe and Brown, arguing that Brown is widely accepted while Roe raises issues that may come before him as a judge.  However, it’s hard to accept this answer for two reasons:

First, Nalbandian is up for a lower court judgeship.  As such, he will have no opportunity to opine on the “correctness” of Roe.  Rather, it is his responsibility to apply Roe, its progeny, and all other Supreme Court precedents.  Thus, as a lower court judge, all Supreme Court precedents bind him equally.

Second, there is no such thing as a case that will NEVER come before the judge.  Long settled precedents are constantly re-examined in the legal system.  AustinBowers, MillerBakke have all been challenged and re-evaluated before the Supreme Court in the last two decades.  As such, the distinction between a “settled” case like Brown and an “unsettled” case like Roe appears even more spurious.

The “Principled” Answer

So setting aside the BrownRoe decision Nalbandian made, we come back to the Vitter answer, which is to decline to opine on all Supreme Court precedents.  After all, it is a lower court judge’s responsibility to apply ALL Supreme Court precedents, even those that they believe to be wrongly decided.  As such, the only “principled” answer is to decline to state the “correctness” of any Supreme Court decision.

Unfortunately, this answer looks awful from a political sense.  It leads to a nominee being battered for not “supporting” popular precedents such as Brown, or worse, having their partiality questioned through their refusal to answer.

Avoiding the Trap

The dual pressures noted above are not a bug but rather a feature of Blumenthal’s question.  Asking whether Brown was correctly decided, while innocuous on the surface, is a cleverly worded Catch-22.  Answer in the affirmative and you’re forced into unprincipled verbal gymnastics when the follow-up question about Roe hits.  Decline to answer out of principle and you’re branded uncooperative or prejudiced.

As such, I’d propose the following answer to Blumenthal’s question:

“Senator, Brown is a very important precedent of the U.S. Supreme Court.  If you’d asked me about the case when I was a private citizen, I would have happily discussed my respect for the decision and its progeny.  However, I’m here as a judicial nominee, and as such, I have a responsibility to conduct myself as I would on the bench.  Just as it would be inappropriate for a lower court judge to discuss the “correctness” of Supreme Court decisions, it would be equally inappropriate for me.  I can, however, assure you that I will faithfully apply Brown and its progeny, as well as all other Supreme Court cases.”

Such an answer adopts the best parts of both Nalbandian’s and Vitter’s answers.  It sidesteps the Brown question but makes clear the reasons for the sidestep while re-iterating respect for Brown.  While no answer is immune to being twisted, it is unlikely that the answer above would be taken to suggest that the nominee opposed Brown itself.

It will be interesting to see if Blumenthal repeats the Brown question at the hearing in two weeks, and, if he does so, how judicial nominees choose to answer.  Should they choose to do so, nominees adopting the proposed answer above will be seen as exercising the sincerest form of flattery.

Judicial Nominations 2017 – Year in Review

Percentage of Nominees Confirmed in 1st Year of Presidency

As 2017 draws to a close, let us look back at the Trump Administration’s push to fill judicial vacancies, and compare the numbers from his first year to those of the past few presidents (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Trump submitted 69 nominees to Article III courts, more than any other modern president.  Compare the following:

Nominations

Nominations sent to the Senate in 1st Year of Presidency

As seen from the table above, Trump has submitted more district court nominees in the first year of his presidency than any of the last five presidents.  He also submitted more court of appeals nominees than any president other than George W. Bush.  While this is partially a function of a higher number of vacancies that Trump inherited at the beginning of his term, it is nonetheless a testament to the focus on judges by White House Counsel Don McGahn and his team.

Confirmations

In 2017, the Senate confirmed 19 of Trump’s nominees: Supreme Court Justice Neil Gorsuch; 12 judges to the U.S. Court of Appeals, and 6 to the U.S. District Courts.

Confirmations

Nominees Confirmed in 1st Year of Presidency

As seen from the chart, while Trump has had more appellate nominees confirmed than the other modern presidents, he has also had the fewest district court nominees confirmed.  This is largely the result of Senate Majority Leader Mitch McConnell’s prioritizing of appellate nominees when calling a vote.  In general, McConnell has largely ignored district court nominees, focusing on quick votes on the appellate picks.

This prioritization means that, as a whole, Trump has seen a smaller percentage of his judicial nominees confirmed than any of the last five presidents.

Percentage

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Of the 69 nominees sent to the senate this year, three have already been (informally) withdrawn by the Administration: Jeff Mateer; Matthew Petersen; and Brett Talley.  This is unusual for two reasons: first, as of this point in their presidencies, none of the past five presidents had withdrawn a single nominee; and second, in general, this represents a higher percentage of “nominee failure” than previous presidents.

In comparison, out of all the nominations made in their first year, Presidents Reagan, and George H.W. Bush saw every single nominee confirmed.  Presidents Clinton and Obama each submitted one nomination in their first year that was ultimately not confirmed: Theodore Klein to the U.S. District Court for the Southern District of Florida; and Louis Butler to the U.S. District Court for the Western District of Wisconsin.  While President George W. Bush had to eventually withdraw four of his first year nominees: Terrence Boyle; Miguel Estrada; Charles Pickering; and Henry Saad, all of these nominees were blocked either through home-state opposition, or through the filibuster.  As such, the defeat of three nominees in a post-filibuster universe is particularly notable.

Diversity

I wrote earlier in the year that the Trump’s administration’s nominees have been relatively less diverse than those of previous presidents.  At the time of that post, Trump had nominated 36 federal judges.  Looking at all 69 of his appointments, it is important to re-evaluate the picture:

Trump has nominated four women to the courts of appeals, and twelve women to the district courts.  As such, 23% of Trump’s judicial nominees are women.  In comparison, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Trump has nominated one African American nominee: Judge Terry Moorer, one Hispanic nominee: Fernando Rodriguez; and four Asian American nominees: Judge Amul Thapar; Judge James Ho; Karen Gren Scholer; and Jill Otake.  As such, 9% of Trump’s judicial nominees are lawyers of color.

Age

While Trump nominees have drawn some criticism for their youth and inexperience, overall, their ages are not significantly different than those of prior appointees.

Trump’s appellate nominees so far have an average age of 49.5, while his district court nominees have an average age of 52.5.  As noted earlier, this is comparable to the ages of Bush, Clinton, and Obama nominees.

Overall Assessment

Reviewing his first year in office,  many observers agree that judicial appointments constituted an area of success for President Trump.  Looking at the empirical evidence, it is clear the Trump Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president.  However, when it comes to confirmations, they still lag behind other recent presidents.

Furthermore, the data suggests that declarations of a “flood” of young conservatives reaching the bench are hyperbole.  As noted above, on average, Trump’s nominees are comparable in age to those of other recent presidents.  Furthermore, McConnell’s focus on appellate confirmations has caused district confirmations to lag.  As such, the district courts, where a significant portion of American caselaw is decided, remain, as of yet, untouched by Trump.

 

Bending Blue Slips: What was the Need?

For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previous statements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).

Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy.  You can make arguments on either side.

Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:

  • Former Indiana Supreme Court Justice Myra Selby
  • U.S. District Court Judge Abdul Kallon
  • Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood
  • Kentucky Supreme Court Justice Lisabeth Hughes

Let’s instead focus on what I keep asking myself about Grassley’s announcement:

What was the Need?

I have yet to find the masses of Trump appellate nominees being blocked by blue slips.  Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit.  In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so.  As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips.  So, why the urgency?

Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators.  But, in his statement justifying his actions, Grassley made no mention of this.  Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.

I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate.  With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections.  Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.

At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.