The confirmation hearings for Supreme Court nominee Brett Kavanaugh commenced this morning in Washington, DC. The hearings began with a series of objections by Democratic members of the committee to tens of thousands of pages of documents that have been withheld by the White House.
The livestream of the hearings (from CSPAN) can be found here.
Anthony Kennedy’s impending retirement means it’s open season on predicting who will be nominated to fill his seat on the U.S. Supreme Court. I offer my own analysis and prediction below. It’s a familiar name for those who have been paying attention to President Trump’s judicial nominations so far.
The President has confirmed that he intends to nominate someone from the list of 25 candidates previously identified by the White House. That is the only certainty. But it’s still possible to whittle down that list significantly using a combination of logic and observation of the President’s nomination trends.
Continue reading “Predicting the next Supreme Court nominee”
Reaction from Senate Republicans on Senator Jeff Flake’s plan to hold up judicial nominations until Congress acts on tariff and trade issues has been respectful but wary, according to this piece in The Weekly Standard:
Although some of Flake’s colleagues have similar convictions concerning Trump’s use of tariffs, they say they won’t go so far as to block Trump’s appointees.
“I am not holding up judicial nominees for that purpose,” Pennsylvania Republican Pat Toomey told reporters on Monday night.
Toomey is a co-sponsor of a measure originally introduced by Bob Corker that would subject tariffs imposed under national security claims through Section 232 of the Trade Expansion Act to congressional approval. Trump has angered close trading partners (and Republicans on Capitol Hill, for that matter) by using that authority to impose tariffs of 25 percent and 10 percent on foreign steel and aluminum. The White House intends to use it again to impose tariffs of 25 percent on imported automobiles.
Toomey and Flake agree that Trump’s license to implement such duties without congressional approval should be revoked. And Toomey said on Monday night that getting a vote on the trade bill is “very important to me” — but so is confirming Trump’s judicial nominees. And Wisconsin Republican Ron Johnson, another co-sponsor of the Corker bill, said that he would love to see Congress reclaim its Article I constitutional authority over tariffs, but that he wasn’t insisting it happen “at exactly this moment in time.”
“I’d prefer he not do it,” Johnson said of Flake’s strategy of targeting Trump’s judicial nominees. “We need to confirm judges.”
Corker himself appeared wary of the notion. “We’re trying to pass the amendment in a normal way,” Corker shouted through the glass of a Senate subway car as the train propelled him away from a gaggle of reporters on Monday night.
Judiciary Chairman Chuck Grassley said on Monday night that he hadn’t spoken to Flake about the issue. “I’m interested in moving these judges, but I also have respect for what [Flake] wants to do,” Grassley told reporters. Senate Majority Whip John Cornyn said he would prefer to advance trade legislation through the Finance Committee, which has primary jurisdiction over the issue. Still, Cornyn didn’t appear completely opposed to the concept of curtailing Trump’s ability to unilaterally impose the Section 232 tariffs.
Last week, Senator Charles Grassley promised to hold a hearing on the federal courts’ response to workplace harassment, which culminated in a working group report. The Washington Post reports on that hearing here.
From the story:
Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Judiciary Committee, said in her opening statement that she was troubled by some aspects of the report.
“I’m also concerned that the working group’s report didn’t quantify the prevalence of sexual harassment in the judiciary and instead relied on previous EEOC data,” said Feinstein, using an acronym for the Equal Employment Opportunity Commission.
Grassley said in an interview that the report seemed like a way to “create the appearance of caring” while leaving “employees of the judicial branch without a vehicle for reporting abuses.”
The Iowa Republican said he would like to see an independent watchdog for the judiciary that could take and investigate reports of harassment. While Congress could theoretically get involved with legislation, he said, that might be difficult to accomplish in practice.
This week, the Federal Judiciary Workplace Conduct Working Group released its report and recommendations, which covered a range of workplace conduct including sexual harassment.
Senator Chuck Grassley is not impressed with the final report, stating that “The report lacked very serious proposals and, in a sense, just kind of kicked the can down the road.” He wants Congressional hearings on the matter.
In July, the White House nominated Thomas Farr for a vacant judgeship in the Eastern District of North Carolina. But this was not just any vacant judgeship — the position has sat empty for twelve years as a result of extreme partisan gamesmanship in the Senate. Farr was approved by the Senate Judiciary Committee in October, but the full Senate never voted on his nomination. Because no action was taken by year-end, the nomination was returned to the White House.
The President can renominate Farr after the first of the year, and probably will despite Democratic concerns about Farr’s alleged role on voter suppression tactics in the 1990s. If renominated, Farr would face a slightly different Judiciary Committee for a second hearing, with Al Franken gone and replaced, perhaps, by Cory Booker or Kamala Harris.
Whatever transpires with Farr’s nomination, both the Senate and the White House owe it to the people of North Carolina to finally fill this seat. The dozen-year vacancy is both embarrassing and detrimental to the work of the courts.
On Wednesday, the Senate Judiciary Committee heard testimony from five more federal district court nominees. Unlike those nominated for the Supreme Court and Courts of Appeal, district court nominees often undergo little serious questioning. Their resumes speak to their qualifications, and the political stakes are lower than with appellate judges.
But basic qualifications are a serious problem for too many Trump nominees. When questioned by Senator John Kennedy, D.C. District nominee Matthew Petersen was unable to identify the most basic legal concepts that a federal judge must contend with on a daily basis. He admitted to being unfamiliar with the Daubert standard for evidence, Younger and Pullman abstention, and even the current Federal Rules of Civil Procedure. This is not particularly surprising, since he has never tried a case, or even argued a motion, at any level of state or federal court.
Here is the jaw-dropping video, courtesy of Senator Sheldon Whitehouse’s Twitter feed. Mr. Peterson, a member of the Federal Election Commission since 2008 (and twice its chairman) has since withdrawn his nomination.
Mr. President, how about populating the trial courts with, you know, people who have actually done some trials?
UPDATE/CORRECTION: Peterson’s nomination is still pending as of Friday evening. But it’s hard to imagine it won’t be withdrawn soon.
Back in May, Senate Republicans openly mulled reforming the “blue slip” process to allow a federal judicial nominee to advance to a vote even if one home-state senator opposed the nomination. Now that reform is set to take place for two Court of Appeals nominees, David Stras of Minnesota and Kyle Duncan of Louisiana.
Debates over the blue slip process always feature some of the worst hypocrisy in the Senate, with the party in power (here led by Sen. Charles Grassley) waxing poetic about the Senate’s obligation to give every candidate a fair vote and the opposition party (here led by Sen. Dianne Feinstein) cynically urging that the president’s nominees are all dangerous extremists.
Imagine if other organizations had to rely entirely on outsiders to staff their core positions.
Russell Fagg, who recently retired from a life-appointed position as a United States District Judge in Montana, announced yesterday that he will seek the Republican nomination for the U.S. Senate from that state. The winner will oppose incumbent Jon Tester in 2018.
Judge Fagg is hardly the first jurist to seek a position in another branch of government — former Alabama Chief Justice Roy Moore recently won the Republican Senate nomination in that state, and another former Alabama Chief Justice, Sue Bell Cobb, is running for governor. In the other direction, many Supreme Court Justices (among them John Jay, William Howard Taft, Hugo Black, and Sandra Day O’Connor) came to the bench after extensive careers in the executive and/or legislative branches.
Judge Fagg is touting his judicial experience — more than 25,000 cases during a 22-year career. And there is something to be said for having a jurist’s mindset in the legislature — one that is capable of coolly and dispassionately evaluating complicated matters. Of course, having that mindset does not mean that one will use it, and the Senate has not exactly been a paragon of reasoned deliberation in recent years. But it will be interesting to see whether — and how — Montana voters account for Judge Fagg’s third branch experience as the race heats up.