Judicial Confirmation Expert Carrie Severino to Speak at National Policy Conference

We are pleased to have Carrie Severino speak on one of our breakout panels on "Restoring the Rule of Law to the Judiciary" at RNLA’s National Policy Conference.  Carrie is one of the leading experts on the judicial confirmation process and the qualifications of federal judicial nominees.  Carrie has been in this role for years through both Republican and Democrat control of the White House and Senate.  A few of her recent views.

On Chairman Grassley’s leadership on the “blue slip” process.  

Senator Grassley's policy is completely consistent with the 100-year history of the blue slip. This CRS report gives lots of historical detail: https://t.co/OV5EmXIED0

— Carrie Severino (@JCNSeverino) February 16, 2018

Severino is a former clerk to Justice Clarence Thomas.  Unfortunately, part of her job is defending Justice Thomas from the periodic groundless attacks such as a cover story in New Yorker Magazine a few months ago.   

A boring rerun of discredited allegations from the 1990s, resurrected by a discredited journalist who was fired for lying and mistreating her own employees. https://t.co/msol7WsiK0

— Carrie Severino (@JCNSeverino) February 19, 2018

But Severino's expertise is not just limited to countering groundless Democrats' attacks or obstruction, she also provides insightful commentary on nominees.  A recent sample after President Trump nominated Britt Grant, a justice on the Georgia Supreme Court, and Patrick Wyrick, an associate justice on the Oklahoma Supreme Court.

Severino said the country would benefit from having more state justices serve on the federal bench. State supreme court justices often have the privilege of settling judicial matters whereas federal judges know that the buck does not stop on sensitive or controversial cases until the federal Supreme Court.

The process of nominating and confirming judicial nominees is needlessly complicated by often imagined or misinterpreted Senate procedures such as the blue slip.  Severino does a masterful job of cutting through the chatter and instead focusing on the abilities of the nominees.  

Federal Judicial Vacancies Increasing Due to Senate Democrats' Obstruction

Despite the unprecedented number of U.S. Court of Appeals judges confirmed in President Trump's first year in office, Democrat obstruction has lead to more judicial vacancies now than there were a year ago:

Trump came into office in January 2017 with 108 vacancies on the federal bench. Despite rapidly moving to fill the seats, he now has 178 current and known future vacancies, according to the Judicial Crisis Network.

The conservative group reports 146 current vacancies on federal courts and 32 known future vacancies, meaning judges who have announced they will retire. Of the total vacancies, 25 are appeals court judges and 153 are district or specialty court judges. . . .

The slowdown is a result of Senate Democrats’ requiring 30 hours of debate for every nominee, even those who clear the Judiciary Committee unanimously or near unanimously, Severino and others noted. 

“At this rate, it will take the president more than two terms to fill all the vacancies,” [Carrie] Severino said.

Senate Democrats are using these delay tactics solely to score political points with their liberal base and resist President Trump, as they insist on 30 hours of "debate" (i.e., empty Senate floor time) for even nominees with broad, bipartisan support.

Even the center-left Pew Research Center has confirmed that obstruction against President Trump's nominees is unprecedented:

The 23 men and six women Trump has successfully appointed so far have faced a total of 654 “no” votes on the floor of the Senate, according to a Pew Research Center analysis of data from the Federal Judicial Center and the U.S. Senate. That works out to an average of nearly 23 votes against each confirmed judge – by far the highest average for any president’s judges since the Senate expanded to its current 100 members in 1959. 

The 330 judges Barack Obama appointed during his eight years in office faced an average of six votes against them. George W. Bush’s 328 confirmed judges faced an average of two, and Bill Clinton’s 382 judges faced an average of just over one. . . .  

Just one of President John F. Kennedy’s 134 confirmed judges drew any “no” votes in the Senate. That was Thurgood Marshall, whom the Senate confirmed to the Court of Appeals for the 2nd Circuit on a 54-16 vote in 1962. (Four senators voted “present” on Marshall’s nomination; 26 others didn’t vote at all.) All of Kennedy’s other confirmed judges were approved on a voice vote – that is, without any recorded opposition.

Kennedy’s successor, Lyndon B. Johnson, also faced little Senate opposition to his judicial choices: All but two of his 186 confirmed judges were approved on a voice vote. 

Thanks to the leadership of Senate Majority Leader Mitch McConnell and Senate Judiciary Chairman Chuck Grassley, President Trump's excellent nominees are being vetted, receiving hearings, and receiving votes.  Unfortunately due to the Democrats' unprecedented obstruction, far fewer judges are being confirmed than are needed on the federal bench. 

Reflections on Justice Scalia on the Two-Year Anniversary of His Death

Today marks two years since Justice Antonin Scalia unexpectedly passed from this Earth.  His impact on the legal world was immense, as he was instrumental in returning to a focus on a law's text.

Much could be and has been said about his jurisprudence, his writing style, his strong but friendly personality, the effort led by Senate leadership to allow the people to speak on his successor by keeping his seat open through the election, and how well Justice Gorsuch is living up to President Trump's promise to appoint a successor in the mold of Justice Scalia.  But today, we pause to remember the great man with a few reflections from those who knew him.

In The National Law Journal:

Kannon Shanmugam, former Scalia clerk and head of Williams & Connolly’s Supreme Court and appellate litigation practice: “Even two years on from his death, Justice Scalia remains a powerful influence on the court. His legacy lives on in the court’s approach to constitutional and statutory interpretation. While there are differences in approach among the court’s members, the court largely plays on the playing field that Justice Scalia established.”

Carrie Severino, chief counsel of the conservative Judicial Crisis Network: “There are so many ways in which Justice Scalia’s legacy lives on. He was a leading voice for taking the Constitution seriously that has already inspired generations of lawyers. And his compelling arguments and trenchant prose will continue to shape our approach to the law for generations to come. Justice Gorsuch himself is not only Scalia’s successor but also someone whose approach to the law was formed in a legal environment made possible by Scalia’s leadership on the court. Justice Scalia is sorely missed, but his influence is still very much alive.”  

And on Twitter:

Today is the second anniversary of Justice Antonin Scalia's death. May he rest in peace, may his wife and family continue to be comforted, and may his remarkable legacy continue to grow.

— Ed Whelan (@EdWhelanEPPC) February 13, 2018

Ed Whelan co-edited Scalia Speaks with Justice Scalia's son, Christopher.  It is a fascinating collection of the Justice's speeches, which he delivered to a wide range of audiences on a wide range of topics, and which give insight into the intellectual and philosophical force that was Justice Scalia.  The RNLA has autographed copies of Scalia Speaks available for members to purchase on the Members Only section of the www.rnla.org website, and members can listen to a members-only conference call with Ed Whelan as well.

Rest in peace, Justice Scalia.

AG Sessions Restoring the Rule of Law at DOJ

Carrie Severino wrote a lengthy summary of what Attorney General Jeff Sessions has done to restore the rule of law at the Department of Justice in less than a year:

Since Attorney General Jeff Sessions was confirmed to head the Department of Justice (DOJ) nearly one year ago, he has been making an impact in which the rule of law has more of a place than it ever did in the Obama DOJ under Eric Holder and Loretta Lynch. . . .  

Also pernicious was the Obama administration’s practice of requiring settling parties to pay third-party organizations, many of them left-of-center, that were not involved in the underlying cases or harmed by the conduct of defendants. The practice closely resembled a DOJ-imposed slush fund for liberal interest groups. Sessions asserted, “Nowhere does the Constitution grant unelected attorneys or political appointees the power to effectively appropriate and distribute funds based on their political alliances.” DOJ put an end to third-party settlements in June. . . .

Besides its work to revive adherence to the Constitution’s provisions regarding the structure of the government, this DOJ has shown that its dedication to the rule of law extends to the direct protection of individual rights. Sessions issued guidance to all executive departments and agencies summarizing 20 principles of religious liberty and instructing them to “vigorously enforce Federal law’s robust protections for religious freedom.” . . . The current DOJ also has taken positions in litigation not involving the federal government that aggressively advance First Amendment rights and that would have been unthinkable a year ago. . . . As a contrast to Eric Holder’s 2013 suit to block Louisiana’s school voucher program, which primarily aided the state’s poorest minority children who were trapped in substandard schools, consider how Sessions’ fidelity to existing law has enabled him to pursue new milestones in advancing civil rights. DOJ is currently reviewing a complaint from over 60 organizations accusing Harvard University of discriminating against Asian-American applicants. Months earlier, it secured a 49-year sentence in the first case prosecuted under the Hate Crimes Prevention Act for the murder of a victim due to gender identity and deployed an attorney to assist in a state prosecution following the murder of a transgender student. . . .

Attorney General Sessions himself described on Tuesday how enforcing the law and increasing respect for law enforcement has dramatically reduced the violent crime rates that had risen under the Obama DOJ.

Ms. Severino concludes by noting that these changes, and the other changes described in the article, are only possible because Attorney General Sessions is deeply committed to the rule of law:

Like the rest of Sessions’ initiatives as attorney general, this recent development flows from his commitment to the rule of law, whether it diminishes unilateral executive action in deference to the elected officials who bear lawmaking responsibility under the Constitution or vigorously enforces laws duly enacted by constitutional process. What a welcome change from the previous DOJ.

We thank Attorney General Sessions for his commitment to the rule of law.  The RNLA will explore the many ways the Trump Administration is restoring the rule of law at its annual National Policy Conference on Friday, April 27, in Washington, DC.  More information and tickets are available here.