Democrats false Narrative on SCOTUS and Some Facts on a Few of the Potential Nominees

Democrats have begun to attack both the Supreme Court confirmation process and some of President Trump's potential nominees.  We provide the facts and some real details on the highly qualified judges.  

Senate Minority Leader Schumer has been saying the Biden Rule applies to the Kennedy vacancy.  While we think it is great that Schumer now acknowledges the Biden Rule (which his own party established), he is purposely misconstruing it and applying it completely wrong.  As the Washington Post explains:

The GOP did argue in 2016 that a Supreme Court vacancy shouldn't be filled until after voters had their say in the coming election, but their argument was about who gets to nominate the justice — not who gets to confirm him or her. It was clearly about presidential election years, not midterms. 

For comparison, Republicans did not attempt to stop Elana Kagan’s confirmation in summer 2010, just ahead of the Senate midterm election (when Republicans won back the Senate); despite, Senate Republicans ability to filibuster. The Democrats are proving they have no interest confirming a qualified Justice to the U.S. Supreme Court, but would rather play partisan political games and continue their efforts to "resist" and obstruct President Trump--even if the country suffers as a result.

Over the next few days, we will highlight some of the nominees that are most talked about. Below are three highly respected judges from President Trump’s list of potential nominees that are currently gaining the most attention in the media.


Amy Coney Barrett of Indiana, is a Judge for the U.S. Court of Appeals for the Seventh Circuit.  Judge Barret is a graduate and Professor at the Notre Dame School of Law since 2002, and clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court. She also served as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., where she litigated constitutional, criminal, and commercial cases in both trial and appellate courts. As the Washington Times states Judge Barret had a remarkably difficult experience being confirmed due to potentially anti-Catholic bias:

Republicans said Democrats were bringing “Catholic bigotry” back to the halls of Congress as almost all Democratic senators voted to try to filibuster a Notre Dame University professor President Trump has nominated to be a judge on a federal appeals court. 

The GOP defeated the filibuster on a 54-42 vote, though only three Democrats joined Republicans in backing Amy Coney Barrett, the law professor Mr. Trump nominated to the 7th U.S. Circuit Court of Appeals. Sen. Joe Manchin, West Virginia Democrat, Sen. Joe Donnelly, Indiana Democrat, and Sen. Tim Kaine, Virginia Democrat were the three who broke with their party to back Ms. Barrett.  “Amy Barrett happens to be a nominee who is Catholic—and who speaks freely and openly about her faith and its importance to her,” said Senate Majority Leader Mitch McConnell “For some on the Left, that seems to be a disqualifying factor for her nomination. I would remind colleagues that we do not have religious tests for office in this country.” 

Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit is another potential Trump nominee. As SCOTUSblog explains, Judge Hardiman is highly qualified and a strong conservative:

The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.) 

After his law school graduation, Hardiman worked for two years in the Washington office of Skadden Arps before moving to Pittsburgh, where he practiced law until 2003. At the age of 37, Hardiman became a federal district judge; he was appointed to the 3rd Circuit in 2007, at the age of 41 – yet another similarity with Sotomayor, who also became a district judge at the age of 37 and took her seat on the U.S. Court of Appeals for the 2nd Circuit at the age of 44.  

During his nearly ten years as a federal appeals court judge, Hardiman has weighed in on a variety of hot-button topics important to Republicans, and his votes in these cases have consistently been conservative. For example, the gun rights cases in which Hardiman has participated reflect an originalist approach to the Second Amendment right to bear arms.    

Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit. Judge Kavanaugh grew up in Bethesda and attended Yale University and Yale Law School. He later clerked for Kennedy on the Supreme Court and served as a counsel in the White House of President George W. Bush.  

The Baltimore Sun recently highlighted Judge Kavanaugh strong conservative roots:

On the Court of Appeals, Kavanaugh has frequently provided a conservative opinion. In 2017, he was among three dissenting judges on a decision that allowed an immigrant teenager to get an abortion. At the time, he said the majority had "badly erred" and created a new right for undocumented immigrant minors in custody to "immediate abortion on demand."

The RNLA believes any of the three aforementioned judges would each be highly qualified and excellent picks by President Trump.

Supreme Court Strikes Blow to Unaccountable Bureaucracy in Lucia v. SEC

This morning, the Supreme Court issued a decision in Lucia v. Securities and Exchange Commission, holding that the SEC's administrative law judges are "officers of the United States" subject to the Appointments Clause of the Constitution.  (We covered this topic and case in a breakout panel at our National Policy Conference in April.)  Justice Kagan wrote for the Court (citations omitted):

The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of department can do so.  And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” in the Government’s workforce. For if that is true, the Appointments Clause cares not a whit about who named them. . . . 

For all the reasons we have given, and all those Freytag gave before, the Commission’s ALJs are “Officers of the United States,” subject to the Appointments Clause.

This decision will help SEC ALJs be more accountable, as they will need to be appointed by a politically accountable person instead of just agency staff.  Justices Thomas and Gorsuch concurred to analyze the original public meaning of "officer" (citations omitted):

The Appointments Clause provides the exclusive process for appointing “Officers of the United States.” While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of “inferior Officers” by “the President alone,” “the Courts of Law,” or “the Heads of Departments.”  

This alternative process for appointing inferior officers strikes a balance between efficiency and accountability. Given the sheer number of inferior officers, it would be too burdensome to require each of them to run the gauntlet of Senate confirmation. But, by specifying only a limited number of actors who can appoint inferior officers without Senate confirmation, the Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones. 

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty.  “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. . . . The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse).  Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. 

Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

Also worth noting is Justice Gorsuch's concurrence in today's South Dakota v. Wayfair decision:

My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day.

Justice Gorsuch consistently compares court decisions and doctrines to the Constitution, with an eye to the appropriate role of the courts, to determine whether they are correct.  Justices Thomas and Gorsuch are constantly pointing the Supreme Court to the text of the Constitution, its original meaning, and the proper role of the courts in our system of federalism and the separation of powers.