Part 1 of the Here Comes the (Trump) Judges series began with a discussion of the increasingly pivotal role federal courts are playing in determining national environmental and climate change policies and resolving the conflicts between defenders and deniers of mainstream climate science.
The authority of Article III courts extends to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. (Article III/Section 2)
Today’s part continues the discussion highlighting the nominating and confirmation process for federal judges and justices of the Supreme Court. The process has become more one-sided in recent years. Today’s article also introduces readers to some of the (mostly white) men Trump has appointed and the principal group behind their nominations.
Lifetime judicial appointments are intended to insulate judges and justices from political pressures. It is a tried and reasonably true principle permitting federal benchwarmers to decide cases and controversies on their legal merits without having to worry about being fired by political bosses.
Were it not for lifetime tenure, it is more than likely that the “Mexican” U.S. District Court Judge candidate Trump railed against would have been sent back to where he came from—Indiana—by President Trump.
I say likely not only because Judge Curiel made a decision in the Trump University case The Big D didn’t like, but because he was an Obama appointee. President Trump has exhibited a marked dislike for anything Obama—particularly environmental protections and a willingness to acknowledge global warming as a problem.
An oft-asked question of voters in the 2016 presidential election was whom they preferred having the power to appoint the Supreme Court justice to fill the seat left open by the death of Justice Antonin Scalia.
Scalia was a respected pillar of conservative jurisprudence. He was a prominent dissenting voice in cases that led to the Clean Power Plan, including Massachusetts v EPA.
President Obama’s nominee Merrick Garland, chief judge of the Court of Appeals for the DC Circuit, was held hostage by Senate Republicans pending the outcome of the November election. One of the privileges of power enjoyed by the party in in control of the Senate confirmation process—for both executive and judicial positions.
Although the idea of a Trump presidency was considered a long-shot, Senator Grassley (R-IA), chairman of the Judiciary Committee, and majority leader McConnell (R-KY) considered the jam-up worth the wait. Delay carried minimal political risk and the reward was considerable—decades of conservative opinion on the high court bench.
The appointment of Scalia’s replacement and SCOTUS justices, in general, was certainly a motivator of conservative voters. The bet paid off; Neil Gorsuch now fills the seat Scalia held.
Interestingly, if not directly relevant to a discussion on climate change and the courts, Gorsuch is the son of Anne Gorsuch (Burford)—President Reagan’s first EPA administrator. Ms. Gorsuch is the stuff of the current EPA Administrator’s dreams.
During her brief tenure, Gorsuch slashed the EPA’s budget by nearly a quarter and, according to a Washington Post story at the time, boasted that she had reduced the thickness of the book of clean water regulations from six inches to a half inch. She filled various departments at EPA with subordinates recruited from the very industries the agency was supposed to be regulating.
Gorsuch also managed to be cited for contempt of Congress for her refusal to turn over to a House committee subpoenaed documents concerning the agency's efforts to enforce a law requiring the cleanup of hazardous waste dumps. The House vote in favor of the contempt citation was 259 votes for and 105 against. Fifty-five (55) Republicans joined House Democrats.
The episode marks a time when bi-partisan support for the environment was not considered high treason by party politicians and constituents. Had the contempt claim been brought in today’s hyper-partisan climate it is unlikely the citation would have been issued.
The political parsimony that prevented Garrick’s confirmation and resulted in Gorsuch’s continues. Evidence of this is found in diversion by the President and Senator Grassley from what is called the blue slip procedure.
A blue slip is an opinion written by the Senators from the state where a federal judicial nominee hails. Whatever their party affiliation, Senators from a nominee's state are sent an actual blue slip on which to submit a favorable or unfavorable opinion of a nominee. A Senator may also choose not to return it.
Senator Grassley is showing himself less attached to the practice than some of his predecessors. In recent weeks he has scheduled hearings for several of Trump’s nominees over the opposition of home-state senators. Grassley’s departure from tradition coincides with the President’s.
David Stras, Trump’s nominee to the 8th Circuit Court of Appeals, spoke before the Judiciary Committee despite Senator Franken’s (D-MN) refusal to return the slip. It occurred before Franken’s having been accused of sexual harassments and his subsequent decision to step-down.
The Senator’s opposition to Stras was apparently political. According to Franken’s Facebook page:
Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box. The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right.
Political leanings are not unusual grounds for opposition. Conservative senators just as readily object to nominees of Democratic presidents on the basis of stated their positions on abortion, support of a strong central government or other considered liberal interpretation of the law.
Blue slip courtesy is not always extended by the chairs of the Senate Judiciary Committee nor treated in the same manner. According to a Congressional Research Service report on practices between 1917 and 1955, the Committee would adversely report the nominee, and the objecting Senator would have the option of stating his or her objection before a vote was taken. During the period there were 10 Democratic Senate majorities and nine Republican.
Between 1979 and 1989 a Senator’s failure to return the slip would not prevent committee action. From mid-1989 through June 5, 2001, a period in which each party was in the (Senate) majority half the time, the Committee seemed to consider one negative blue slip “a significant factor to be weighed” but would “not preclude consideration” of a nominee “unless the Administration has not consulted with both home state Senators.” The committee would take no action, regardless of presidential consultation, if both home-state Senators returned negative blue slips.
Blue slips have faded in today’s partisan light, given Senator Grassley’s decisions and the willingness of the Republican Senate majority to confirm Trump’s nominees along party lines. There is likely some payback involved in how the principle is being applied today.
Frustration with gridlock is not an unshared feeling among majority parties. A Democratic Senate in 2013 felt vexed by the stubbornness of their cross-aisle colleagues to move along nominations. The straw that tipped the scales was a presumably Republican reticence to confirm--wait for it--three Obama nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
Sound familiar? It should.
To vent their frustrations, the Senate Ds used a rare parliamentary move to change the rules so that federal judicial nominees and executive-office appointments can advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority that has been the standard for nearly four decades.
Ah, the games Senators play.
Grassley explained his unwillingness to wait on Trump’s nominees in a floor speech in which he took the opportunity to say to the Ds I told you so:
The Democrats seriously regret that they abolished the filibuster, as I warned them they would. But they can’t expect to use the blue slip courtesy in its place. That’s not what the blue slip is meant for.
Payback can certainly be an unkind lady. What goes around comes around—if it were not for the stakes, partisan gamesmanship might be more fun to watch. As it is, it seems to be resulting in actions for which we may all be sorry—if not sorry, embarrassed—now and should political fortunes change in future elections.
Here I’m thinking of how party politicians seem to be able to rationalize support for candidates and members of Congress who are either spectacularly unqualified or could profit from lessons in decency. A vote is not always a vote; it can at times stand for who we are as a nation.
However, I digress.
Stras is not the only nominee whose confirmation hearings have been scheduled despite a home-state senator’s refusal to endorse. Three recent nominees illustrate how differently the same individuals are being viewed by one side or another. The striking differences of opinion also reflect just how deep the divide can be.
Kyle Duncan, LLM (Columbia Law School), JD (Louisiana State University) was nominated to sit on the United States Court of Appeals for the Fifth Circuit. A confirmation hearing was held on November 29th. His resume includes:
Duncan’s home-state Senator John Kennedy (R-LA) never returned his blue slip indicating he was undecided about Duncan. A no return to sender is usually enough to pause proceeding. A hearing was nevertheless held. The Senator did finally endorse Duncan. Whether Kennedy changed his mind because of something Duncan said in his confirmation or for party unity is unclear.
A line between populists and progressives was clearly in evidence in the case of the Duncan nomination. Louisiana Attorney General Jeff Landry heaped praise upon Duncan comparing him to Neil Gorsuch:
Not only do they both come with prodigious academic and legal résumés, but they also share a judicial philosophy. They believe that judges must follow our laws and the Constitution — and not base decisions on their own moral preferences or policy positions. They are both keen on protecting religious freedom within the confines of our Constitution. In addition, Duncan and Gorsuch have that gift of being able to boil complex legal issues down to the basics and explain in terms the general public can appreciate.
Those opposed to the Duncan nomination were quick to heap something else. Vanita Gupta, President, and CEO of the Leadership Conference on Civil and Human Rights, a coalition of 200 national organizations wrote:
Mr. Duncan is a right-wing ideologue who has devoted his legal career to undermining civil and constitutional rights in America. He has aggressively advanced a radical personal agenda to set back LGBT rights, voting rights, immigrant rights, women’s reproductive freedom, and criminal justice progress. Like every Trump circuit court nominee except one, Mr. Duncan is a member of the ultraconservative Federalist Society, and he has spoken to that legal organization on 26 occasions.
Senator Kennedy has expressed his general disappointment with his president’s picks and registered opposition to two other nominees—one of whom was recently confirmed. Over Senator Kennedy’s objection, Greg Katsas (age 54) was confirmed for a spot on the bench of the Court of Appeals for the DC Circuit.
Merrick Garland is currently the chief judge of that court. The tribunal is considered second only to SCOTUS in importance—for a good reason. Kennedy was the first to oppose Katsas’ nomination. He did so on because of a “conflict of interest” that the senator argued, “a first-year law student would see.” Katsas is deputy White House counsel and testified during his confirmation hearing that he worked on the White House’s response to special counsel Robert Mueller’s Russia probe, as well as a series of controversial executive orders.
The appellate court for the D.C. Circuit has jurisdiction over government agencies based in Capital City. It has responsibility for directly reviewing federal rulemakings, often without a prior hearing by a district court.
Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, it typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act (APA). The Clean Power Plan cases, for example, were heard by this court.
It is also the court telling Administrator Pruitt he cannot suspend or rewrite methane and other emission regulations without first following APA procedures no matter the issuance of Trump’s executive orders to the contrary. Rules are—after all—rules.
The Court of Appeals for the DC Circuit has also proven a springboard to the Supreme Court. Three serving members of the Supreme Court—Roberts, Ginsburg, and Thomas—sat on the DC Circuit bench. Before Scalia’s death, four of nine served.
Katsas’ nomination attracted particular attention both because of the importance of the DC Circuit and his position as Trump’s Deputy White House Counsel. Kennedy was not the only Senator suspicious of the nominee’s connection to Trump.
Whether one agrees with Katsas’ political leanings, he is not without some impressive credentials.
Trump nominated Brett Talley (age 36) to be a federal district court judge Alabama. His creds include:
According to numerous reports, Talley has published three horror novels/novellas and two "true ghost stories"; in 2011, Talley's Lovecraftian horror novel, That Which Should Not Be, was a finalist for the Bram Stoker Award. Readers should note that I was hesitant to list his ghost-writing accomplishments as I don’t feel them particularly relevant to the question of his capability to serve as a federal judge.
There are other of his writings and actions, however, that I think do speak to his suitability for a lifetime appointment to the federal bench. Talley is an active blogger. In January of 2013 he wrote a blog post: A Call to Arms: It’s Time to Join the National Rifle Association. Critics are quick to point out the post was written only a month after a gunman in Newton, Massachusetts killed 27 people.
In 2016 Talley tweeted (no longer visible) Hillary Rotten Clinton might be the best Trumpism yet. Other of his tweets include the one below posted at the time of the 2017 March for Science in D.C.
Opposition to Talley is not limited to the Democratic side of the Senate. There are two circumstances that have been called into question by both sides of the aisle.
To be clear, there is no written requirement that a federal judge needs to have tried cases in court. It is hardly unreasonable to think that trial experience should be factored into a decision on the suitability of a candidate for the federal bench. Surely it was a factor in the not qualified rating he received from the American Bar Association.
Most disturbing to some Senators, however, was the judgment--or lack thereof--Talley exercised in failing to list his wife (Ann Donaldson) under potential conflicts of interest. His wife is not just an attorney in the White House.
The nominee’s wife is chief of staff to White House counsel Don McGahn, who oversees the president’s judicial nominations. She is not just chief of staff to the person in charge of overseeing nominations to the federal bench.
According to the New York Times, she was recently interviewed by special counsel Robert Mueller's investigators about detailed notes she kept on her conversations with McGahn, which included discussions the two had about the firing of former FBI Director James Comey.
Is there an improper connection between Talley and the White House? Maybe/maybe not. Is there a problem of perception that should have been recognized and addressed head-on by an individual nominated to hear and decide cases and controversies in law and equity? I’ll let readers decide that for themselves.
Talley’s home-state Senator (Shelby) tweeted his approval.
Where does Trump find his judicial nominees?
There is a dispute about where the White House is finding their judicial nominees. A significant number have been, are or frequently speak to the Federalist Society (Society or FS). The 60,000-member strong organization is considered the conservative alternative to the American Bar Association.
Among its members and frequent presenters is Don McGahn, the previously mentioned overseer of presidential judicial nominations. Ask him if the White House is relying on the Federalist Society for its pool of candidates, and McGahn denies it. According to a Newsmax story, White House counsel Donald McGahn on Friday slammed "completely false" accusations that President Donald Trump was relying on the conservative Federalist Society for his judicial nominees.
Ask Steven Calabresi, a law professor at my alma mater Northwestern University School of Law and co-founder of the Society, and you get a different answer:
I would say I think the Federalist Society has come to play over the last 30 years for Republican presidents something of the role the American Bar Association has traditionally played for Democratic presidents.
The last two Republican presidents have disregarded ABA ratings, and I think they are relying on the Federalist Society to come up with qualified nominees.
Ten of the 13 confirmed[i] judicial nominees are Society-related. A new and expanded short-list of potential SCOTUS nominees was released around the time McGhan spoke at the Federalist Society’s annual convention in Capital City. Of the list, he said to the members present:
They [all] have a demonstrated commitment to originalism and textualism … there’s nothing unknown about them.
Interestingly Justice Gorsuch’s name had not been on an FS list before his nomination, although he has become a favorite of the Society. Other facts of interest to the climate and clean energy communities are:
As Professor Calabresi suggested, Democrat and Republican presidents listen differently to the American Bar Association and the Federalist Society. In March 2017 McGahn formally notified the ABA the White House was ending the long-standing practice of inviting the independent ABA Standing Committee on the Federal Judiciary to review the professional qualifications of prospective nominees to the lower federal courts before nominations are made. (emphasis added)
The ABA has continued to issue ratings, although now it waits until after the nominations are made. To date, the ABA has rated four of Trump’s nominees, including Talley, as unqualified.
The ABA/Federalist Society split reflects the division found these days in society as a whole. It particularly exemplifies the growing chasm between Republicans and Democrats. It is reasonable to ask what, in practical and political terms, are the impacts these differences are likely to have on the environment and on the fight to combat climate change.
Big questions, deserving of some answers. Click into the next installment for a discussion on some of them, as the series of Here Comes the (Trump) Judges will continue.
[i] As of December 6, 2017.
Lead photo credit: https://unsplash.com/@wilsea
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.