Today in Judicial Confirmations: Brennan Confirmed to 7th Circuit; Democrats Continue to Argue Blue Slip History

Today, the Senate confirmed Judge Michael Brennan to the Seventh Circuit and invoked cloture on Joel Carson (Tenth Circuit) and John Nalbandian (Sixth Circuit).  The Senate Judiciary Committee favorably reported Mark Bennett (Ninth Circuit), Nancy E. Brasel (D. Minn.), Robert R. Summerhays (W.D. La.), and Eric C. Tostrud (D. Minn.) to the Senate.

In the past few days, the Senate Democrats have turned to complaining about Chairman Chuck Grassley's blue slip policy, instead of attacking these excellent nominees' qualifications and merits, which has been a largely failed strategy. Chairman Grassley defended his blue slip policy on the Senate floor yesterday, as we described in yesterday's blog post.

Chairman Grassley reiterated at today's Senate Judiciary meeting that rather than his blue slip policy being unprecedented, the obstruction and delays by the Senate Democrats are truly what is unprecedented.  He described how blue slips entitle senators to consultation, not a one-person veto to the President's exercise of his authority. He has ensured that the purpose of the blue slip has been carried out for all nominees by requesting from the White House consultation logs for senators who have refused to return blue slips before he went ahead with hearings.

Senator Roy Blunt of Missouri also called out the Senate Democrats' obstruction on the Senate floor yesterday:

The fact that the Senate's time is taken in a way that it never has been before to process the president's nominations is outrageous. It's just outrageous. There's some view that, well, we need more time to think about the nominee. There's plenty of time to do that. It's called the committee process. It's called a vetting process that also may very well take too long now, but there is plenty of time for these circuit court nominees that we're voting on this week to be vetted.  There’s plenty of time to ask them questions.  There’s plenty of time to look into their background.  

The only reason, in my view, that we take the time we’re taking to do six votes, basically six votes on six judges in a week.  That's six 15-minute votes, if we were efficient enough to do that, that would be an hour and a half we’d take to vote on these six judges, and the final vote on none of them would be different than taking five days.  So why do you take five days?  You take five days because that means we can’t get to anything else.  Not only does it mean that the President’s ability to populate the government, as people elected him to do, is diminished, but also it eliminates the time we have to do the other work that the Senate is designed to do.  The Senate is in, as the Majority Leader likes to describe it, the personnel business, but it’s not supposed to be the only business of the Senate. 

I think we’ve [had] now over 90 of these cloture motions on nominees that the President’s made.  90.  Now, what does that mean?  In the previous six administrations, in the first two years of each of them, there was a total of 24 cloture motions – . . . 24 times, six presidents, in the first two years, an average of four times.  We’re going to certainly be to 104 times well before the end of two years. . . . 

No votes will be persuaded by running the clock.  No votes will be changed by running the clock.  And the power, of course, to put people on a federal bench for life is an important power given in the Constitution to the President for the Supreme Court and such other courts as the Congress may determine the country needs.  It’s not a thing to be taken lightly, but it’s also not a thing to be abused.  It’s not a process where the protection that you might use four times in two years is suddenly used 90 times in 15 months.  Something is wrong when that has happened to the process.

The Senate will reconvene next week to consider cloture motions on three additional circuit court nominees and vote on the Carson and Nalbandian nominations. Thanks to Chairman Grassley, Majority Leader Mitch McConnell, and the Senate Republicans, the Democrats are only able to delay nominations and prevent the Senate from dealing with its other business but not ultimately prevent the confirmation of President Trump's excellent judicial nominees.

Chairman Chuck Grassley: "Trailblazing Judges Confirmed Despite Delay Tactics"

In Law360 yesterday, Senate Judiciary Committee Chairman Chuck Grassley noted the vital importance of judicial nominees who are committed to the rule of law:

Nominating federal judges is one of the president’s most important constitutional duties, because these life-tenured judges often serve for decades on the bench. The most lasting legacy a president leaves on the American legal landscape is the judges committed to the Constitution and the rule of law. 

President Trump's excellent nominees have been confirmed due to his and Majority Leader McConnell's leadership:

The Senate also confirmed 12 judges to the courts of appeals in 2017, a record for the first year of any presidency and four times the number of appellate judges confirmed in the first year of President Obama’s presidency. These judges, all distinguished by stellar legal and academic credentials, enjoyed widespread support in the legal community. The courts of appeals are the courts of last resort for the vast majority of thousands of cases in our federal court system. It has been among my highest priorities, and Senate Majority Leader Mitch McConnell’s, to confirm these extremely well-qualified nominees.

After noting that President Trump's nominees have included many "trailblazers" including the first Indian-American federal judge (when previously confirmed to the district court) Amul Thapar and four confirmed female appellate judges, Chairman Grassley described how this success in confirmation has been hard-won against the Democrats' stubborn obstruction:

It has been especially remarkable that we have been able to confirm so many judges in light of unprecedented obstruction from Senate Democrats. As of the end of February, the Democrats have required the Senate to hold cloture votes to end debate for 28 of Trump’s judicial nominees. They have required this time-consuming process even for nominees with widespread support who are ultimately confirmed by substantial majorities. In contrast, Senate Republicans forced a cloture vote for only one judicial nominee at the same point in President Obama’s presidency. Moreover, the Democrats are insisting on multiple hours of debate on each nominee even when only a fraction of that time is actually used for debate. This has resulted in a bottleneck of as many as 33 committee-approved judicial nominees awaiting votes by the full Senate at a given time. 

This procedural block is not the only way Senate Democrats have attempted to thwart the confirmation of judicial nominees. Despite the fact that President Trump has nominated individuals with broad bipartisan support from their home states, only two of his circuit court nominees confirmed in 2017 received the support of more than 60 senators. The Democrats’ unprecedented lockstep opposition to nearly all of President Trump’s nominees demonstrates the hold that liberal special-interest groups have over the party. 

Chairman Grassley also explained how, contrary to historical precedent, the Democrats are attempting to turn the blue slip courtesy, which encourages the White House to consult home-state senators on nominees, into a one-senator veto.  Thank you, Chairman Grassley and Leader McConnell, for prioritizing these excellent judicial nominees and not allowing Democrats to use the judicial confirmation process as a way to resist President Trump.

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. 

ICYMI: “Controversial” Nominee Ryan Bounds: People Who Know Him Support Him

Ninth Circuit Nominee Ryan Bounds is under predictable attack from liberals who don’t know him and seemingly hate him because he was nominated by President Trump.  What isn’t predictable is the response to those attacks.

I’ll let David Lat of Above the Law and Courtney Angeli explain what is going on (emphasis added):

Nothing in a recent report about Ryan from the Alliance for Justice, a left-wing group reflexively critical of Republican judicial nominees, changes this. Taking short excerpts from Ryan's college writings from almost a quarter-century ago, the group report attempts to argue that he is somehow "insensitive" and "hostile" to women and minorities. We know Ryan very well, having known him for a combined 40-plus years. We know he harbors no such insensitivity or hostility -- and we speak as members of the supposedly maligned groups. One of us (Angeli) is a woman, former president of the Oregon Federal Bar Association, and founder of a law firm honored by the Oregon Women Lawyers' Association for its commitment to work-life balance and diversity. The other (Lat) is a gay Filipino-American who writes and speaks in support of Asian-American and LGBT causes.  . .
None of us would appreciate being defined at 40-something by our most hyperbolic collegiate musings. The Alliance for Justice's need to resort to them in Ryan's case reflects the lack of legitimate objection to his nomination. But we urge readers to review the group's report against Ryan's complete articles from the Stanford Review anyway, to see just how misguided its charges are.

Another open letter to the editor by people who know Mr. Bounds entitled Different political backgrounds support Bounds for Ninth Circuit makes the case to the Senate Judiciary Committee as follows:

We write to offer our unqualified and personal support of Ryan Bounds as a nominee to the Ninth Circuit Court of Appeals. We all have a long personal history with Ryan, as we grew up together in the same rural northeastern Oregon town of Hermiston. As members of Oregon’s legal, medical, corporate, and higher education communities and leaders and volunteers for a variety of progressive causes and organizations — including the Oregon Democratic Party, the Hillary Clinton for President Campaign, SOLV (Stop Oregon Litter and Vandalism), Oregon Women Lawyers, and Basic Rights Oregon — we are uniquely situated to critically assess Ryan’s growth and temperament over more than three decades. We have no doubts about Ryan’s capacity to serve as a judge by any criterion — be it personal, intellectual, professional, or temperamental. We urge your fair and thorough consideration of his nomination. . . .

[They conclude by stating to the Committee:] If Ryan is incapable, in your eyes, of serving his country as a judge, we must share our worry as to who might be qualified and suited for the judiciary in the view of the committee and Senate.

Shame on Senate Democrats if they reflexively follow the Alliance for Justice and oppose this qualified nominee. 

Two More Judges Confirmed This Week

The Senate confirmed two more of President Trump's excellent judicial nominees this week: Elizabeth Branch, to the Eleventh Circuit, and Marvin Quattlebaum, Jr., to the District Court for the District of South Carolina.  Judge Branch was confirmed by a wide, bipartisan margin, 73 to 23 votes.

This brings the total confirmed in just over a year into President Trump's term to one Supreme Court justice, 14 circuit courts of appeals judges, 11 district court judges, three judges on the U.S. Court of Appeals for Veterans Claims, and one judge on the U.S. Court of Appeals for the Armed Forces.  Three more district court judges are scheduled for confirmation votes on Monday.

Senate Majority Leader Mitch McConnell said on the Senate floor on Monday:

“The Senate will soon vote to confirm another fine candidate to serve on the federal bench. Yesterday afternoon, we voted to advance the nomination of Judge Elizabeth Branch for the Eleventh Circuit Court of Appeals. Judge Branch has sat on the Georgia Court of Appeals since 2012. This follows a fine career that spanned both private practice and public service. 

“Judge Branch had previously answered the call to serve at the Department of Homeland Security, where she worked as Associate General Counsel, and then at the Office of Information and Regulatory Affairs. Her record and qualifications are well-known. Our colleagues on the Judiciary Committee reported her nomination favorably by an overwhelming vote. 

“Confirming this worthy nominee will be a further credit to the outstanding work of Chairman Grassley and the members of the committee. I encourage all my colleagues to join me in voting to confirm Elizabeth Branch today. Let’s continue to fulfill our constitutional responsibility and confirm the president’s outstanding judicial nominees.”

Senate Judiciary Committee Chairman Chuck Grassley agreed in his floor statement:

Mr. President, today the Senate is voting to confirm Judge Elizabeth Branch to serve as a U.S. Circuit Court Judge for the Eleventh Circuit. Judge Branch was favorably reported out of the Judiciary Committee on a 19-2 bipartisan vote. She has broad bipartisan support from her home state of Georgia. The American Bar Association rated Judge Branch as unanimously well-qualified. If the Senate confirms Judge Branch, as I’m confident it will, she will be the fourth woman confirmed by the Senate to the federal courts of appeals in the 115th Congress—three more than the one woman confirmed at this point in President Obama’s first term. . . .

As I noted earlier, if confirmed, Judge Branch will become the fourth female circuit-court judge confirmed under President Trump. Her confirmation puts her in good company, joining a class of first-rate female jurists and legal scholars. She will join a group that includes: 7th Circuit Judge Amy Coney Barrett, a former professor at Notre Dame University Law School and law clerk to Justice Scalia; 10th Circuit Judge Allison Eid, a former Colorado Supreme Court Justice and law clerk to Justice Thomas; and 6th Circuit Judge Joan Larsen, another clerk of Justice Scalia and former Michigan Supreme Court Justice. I’m confident that Judge Branch will serve as an excellent addition to this outstanding class of female circuit-court judges.

Judge Branch’s impressive background and bipartisan support suggest that she will be an excellent court of appeals judge.  I am pleased to support her nomination today.

There is still important work to be done, however, as 148 vacancies remain and 58 nominees are still pending (with more regularly being sent over to the Senate).  We thank President Trump, White House Counsel Don McGahn, Chairman Grassley, and Leader McConnell for all their leadership and work selecting, vetting, and confirming these excellent nominees.

President Trump's Superb First Year of Judicial Nominations

Ed Whelan writes about President Trump's superb judicial nominees during his first year in office in the January issue of National Review:

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. That appointment consummated Senate Republican leader Mitch McConnell’s strategy of keeping the vacancy open through the 2016 presidential election, and it resoundingly vindicated the wisdom of that strategy. . . .

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. . . . Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women [and] two Asian Americans . . . .

Three factors account for this remarkable success on federal appellate judges. First, the conservative legal movement has grown significantly over the past two decades. . . . Second, thank Harry Reid. In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. . . . Third, federal appellate nominations mattered deeply to the key players. Kudos to President Trump and White House counsel Don McGahn for selecting excellent nominees, and to Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley for placing a high priority on moving them through to confirmation.

But Mr. Whelan notes that, despite last year's successes, much work remains to be done, partly due to the huge number of vacancies that need to be filled and partly due to the obstruction of Senate Democrats at every step of the process:

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations. The front-end obstacle is the Senate Judiciary Committee’s so-called blue-slip privilege, which accords individual senators the opportunity to approve or disapprove of judicial nominees in their home states (and which derives its name from the piece of paper that senators once used to register their views). . . . Given the stark divide on judicial philosophy between the White House and Senate Democrats, not to mention the animosity between them, it’s no surprise that the consultations that the White House has undertaken on judicial nominations have yielded little fruit. . . . [The confirmation] line may prove long and slow because of the back-end obstacle that nominees face: the Senate’s arcane and cumbersome “cloture” process.

The entire article is well worth reading for a summary of the current status of federal judicial nominations.  As he notes, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Chairman Chuck Grassley have been instrumental to the success of President Trump's first year, and Americans owe them a debt of gratitude.

Matthew Petersen Qualified to Serve on D.C. District Court

RNLA President Elliot Berke sent a letter today to the Senate Judiciary Committee in support of current FEC Commissioner Matthew Petersen, who has been nominated to the U.S. District Court for the District of Columbia:

I have known Commissioner Petersen both personally and professionally for many years and practiced before him at the Federal Election Commission, and there are few attorneys who possess the ability to read, understand, and analyze statutes and regulations as well as Commissioner Petersen.  He is a consummate professional who has carefully considered the facts and the law for each matter before him at the FEC, without regard to policy considerations that were outside his purview.  His knowledge of and experience with administrative law are exceptional, and as you are aware, administrative law forms a substantial portion of the District Court for the District of Columbia’s docket. 

Commissioner Petersen has recently been subject to politically motivated attacks about his trial knowledge and experience.  Those who oppose his steadfast defense of American citizens’ First Amendment rights of political speech at the FEC do not wish him to join the federal bench. 

The reality is that the Federal Rules of Civil Procedure and other doctrines governing trial procedure are of course important aspects of the position, but the ability to parse complicated regulations and correctly apply them to factual situations must be honed over years of practice.  Commissioner Petersen has done precisely that in his distinguished career of public service and private practice.  The American Bar Association Standing Committee on the Federal Judiciary unanimously rated him as qualified.

The RNLA urges the Senate Judiciary Committee to swiftly and favorably report his nomination to the entire Senate and the Senate to confirm him.  Those who oppose Commissioner Petersen because of his support for the First Amendment and the rule of law at the FEC should not be allowed to prevail.

ABA Is Blackballing Trump’s Judicial Nominees for Their Beliefs

RNLA Vice President for Judicial Affairs Eric Lycan wrote today in The Daily Caller about how the American Bar Association (ABA) is showing bias in its evaluations of President Trump's judicial nominees:

[The ABA's] biased reviews of Trump’s judicial nominees are increasingly showing that the qualifications and accomplishments of Republicans, conservatives and libertarians do not outweigh political views which are distasteful to the ABA.

Mr. Lycan describes the signs of bias in the ABA's review of Steven Grasz, a well-respected nominee for the U.S. Court of Appeals for the Eighth Circuit who has had a distinguished career.  Just two examples of inappropriate questioning by reviewers who are supposed to be, and claim to be, neutral:

While ostensibly reviewing his professional qualifications as a lawyer, the ABA reviewers questioned why Grasz’s children attended a religious school. . . . [T]he reviewers began referring to Mr. Grasz as “You people.” When Grasz asked what they meant by “You people” — an ambiguous, exclusionary, and outright derogatory term — the reviewers said they were referring to conservatives and Republicans.

Mr. Lycan concludes by questioning whether the ABA's true goal is excluding conservatives, libertarians, and Republicans from the practice of law:

Any effective lawyer — not just judges — must separate personal opinions from what the law requires as a fundamental part of the practice of law. . . . Under the ABA’s standard, no conservative or libertarian would be able to serve as a judge, or maybe even practice law. The ABA thinks that a conservative’s or libertarian’s views take over a person’s thinking to such an extent that the person cannot think objectively about anything.  And the person cannot even recognize his or her lack of objectivity. 

This may show the ABA’s endgame: to eliminate conservatives and libertarians from the legal profession. There are other ways the ABA, in cooperation with state bar associations, is moving toward that goal, from suppressing speech by lawyers that the ABA disagrees with to different ethical standards being applied to conservative and liberal lawyers. As is starting to happen in other fields, Republican, conservative, and libertarian lawyers may soon need to fight for the right to engage in their chosen profession without abandoning their deeply held beliefs. And that is truly disturbing.

We are grateful to Senate Judiciary Chairman Chuck Grassley for not allowing the ABA's shameful rating of Mr. Grasz to prevent his consideration by the Senate.  Chairman Grassley has scheduled a hearing for Mr. Grasz for next Wednesday, November 29.  As Senators Ted Cruz and Ben Sasse pointed out last week, the ABA's actions demonstrate that it is a liberal advocacy group advancing a liberal agenda on judicial nominations, and the Senate leadership is wise not to allow the ABA to veto qualified nominees.

Don McGahn Summarizes Trump Administration's Work on Judicial Nominations and Regulatory Reform

This evening, White House Counsel and 2017 Ed Meese Award winner Don McGahn addressed the Federalist Society's National Lawyers Convention.  RNLA live-tweeted the speech, and all the tweets can be viewed here.  Mr. McGahn focused on the rule of law, due process, the administrative state, and the role of judges.  Here are some highlights:

WHC Don McGahn: Very fortunate to serve a President committed to nominating and confirming judges who are committed originalists and textualists. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: The greatest threat to the rule of law in our modern society is the ever expanding administrative state and the most effective bulwark against that is a strong judiciary. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Regulatory reform and judicial selection are deeply connected and are the two greatest issues this administration will address. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: No way for regular people in small businesses to keep up with the regulatory and sub-regulatory actions pouring out of the administrative state's spigot. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Modern regulatory system makes a mockery of the finely tuned system of checks and balances in the Constitution. When we tinker with the design, we tinker with our freedom. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: This administration's mandate on judicial selection is clear: choose judges in the mold of Justice Scalia, Justice Thomas, and now Justice Gorsuch. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Interpretive principles articulated by Justice Scalia are the very bedrock of due process and the rule of law. Justice Thomas' opinions make clear these are missing in our administrative state. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Chairman Grassley and his team have done an outstanding job moving nominees through the Judiciary Committee. Majority Leader McConnell created this opportunity through his courage. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

The entire speech can be viewed here.  We are deeply indebted to Mr. McGahn and his team in the White House Counsel's office for their vital work helping President Trump select excellent judicial nominees and to the Trump Administration for its efforts to roll back the regulatory overreach of the Obama administration and make the federal government more responsive to the people.

Sen. Cruz on ABA's Biased Review of Judicial Nominees

Today, as part of the Senate Judiciary Committee's hearing on nominations, Pamela Bresnahan, Chair of the American Bar Association's (ABA) Standing Committee on the Federal Judiciary, testified on the ABA's role in evaluating judicial nominees and in particular, the committee's troubling finding of "not qualified" for Eighth Circuit nominee Steve Grasz.  Senator Ted Cruz of Texas co-chaired the hearing and gave opening remarks strongly critical of the ABA (starting at 3:35:30):

But I think the notion of a non-ideological organization has been belied by the conduct of the ABA over years.  The ABA today is an openly liberal advocacy group. . . . Groups are entitled to advocate their political positions.  But if an advocacy group is pressing for a certain desired outcome, they should not be treated as a fair or impartial arbiter of merit. . . .

Sen. Cruz described examples of the ABA’s “political positions [that] are left of center” and went on:

That bias has, in turn, been seen in the evaluations from the ABA.  In 2012, Political Research Quarterly published a careful statistical analysis of the ABA’s ratings over the years and found that “holding all else equal, individuals nominated by a Democratic president are significantly more likely to receive higher ABA ratings than individuals nominated by a Republican president.”  And the authors specifically control for objective qualifications, rejecting the argument that Democratic presidents somehow selected more qualified nominees. . . . And the authors concluded that “systematic bias exists against Republican nominees.” 

 We’ve seen that over and over again, and in fact, one doesn’t have to look too far back to see how many times the ABA has gotten it wrong.  Judicial nominees that the ABA has opined were not qualified to be judges include Justice Clarence Thomas, include Judge Mike Luttig, Judge Alex Kozinski, Judge J. Harvie Wilkinson, Judge Janice Rodgers Brown, Judge Bill Pryor, Judge Thomas Griffith, Judge Steve Colloton, Judge Tim Tymkovich.  What’s notable is that these are not just federal judges; it is literally a who’s who of some of the most widely respected, most outstanding federal judges in the country.  The ABA said they weren’t qualified, and their actual performance on the bench demonstrated that judges across the country follow their opinions, respect their opinions, that they are leading jurists in the country.  But yet, the ABA’s political bias stood in the way of a fair and objective assessment.

Sen. Cruz later clarified that, for the list he gave, at least one member of the ABA’s committee voted to find the judge not qualified, even if a majority voted the judge qualified.  And he added Seventh Circuit Judge Frank Easterbrook to the list.  

Senator Ben Sasse of Nebraska agreed with Sen. Cruz and emphasized one of his points:

The ABA is a liberal advocacy organization.  That’s not a bad thing.  You can be a liberal advocacy organization.  You have First Amendment rights and you should use them.  What’s not ok is being a liberal advocacy organization and be masquerading as a neutral evaluator of these judicial candidates.

We thank the Republican senators for calling the ABA to task over its biased review of Mr. Grasz.  Such "systematic bias" against conservatives and Republicans should not be allowed to persist unchallenged.

Sen. Sasse Dismantles ABA as Neutral Arbiter of Judicial Qualifications

On the Senate floor last week, Nebraska Senator Ben Sasse demolished the idea that the American Bar Association (ABA) is a neutral and impartial arbiter of judicial qualifications, highlighting their biased treatment of Eighth Circuit nominee Steve Grasz:

Unfortunately, over the last few days in this body, it's become clear that some of us are tempted to outsource our constitutional duties to an outside organization. That organization, the American Bar Association, purports to be a neutral arbiter but is frankly twisting its ratings process to drive a political agenda in an important nomination pending before this body. I'm referring specifically to the smear campaign of the ABA against Steve Grasz, a qualified public servant who has been nominated by the President to the Eighth Circuit Court of Appeals. Steve Grasz has decades of honorable service in Nebraska, including more than a decade as the Chief Deputy Attorney General of my state. Mr. Grasz is in fact eminently qualified for the circuit court bench, as has been testified to by Republicans and Democrats across our state. But let's set the scene first for the ABA's silly decision earlier this week to announce that they regard Steve Grasz as not qualified. I'll highlight three specific items.  

First, we should discuss the two people who interviewed Mr. Grasz and recognize that, unfortunately, they are blatant partisans with a sad track record of hackery. Second, the ABA Is trying to paint Mr. Grasz as an extremist simply because he did his job as the Chief Deputy Attorney General of Nebraska and defended Nebraskans and Nebraska laws that wanted to outlaw the most barbaric of abortion practices — partial-birth abortion. Third, we should talk about the obvious bigotry of cultural liberals evident in their interview process of Mr. Grasz when they asked him repeated questions about nonlegal matters that had nothing to do with the claims of competence of the ABA. 

The ABA's questions and manner of questioning tellingly revealed their bias, in a way that is astounding for an organization of lawyers who should have learned to ask better, more precise, clearer, more on-point questions in the first year of law school:

Third, I know that the ABA has an august-sounding name, but here's the reality of the kinds of stuff they did in their interview of Mr. Grasz. They asked him, “What kind of schools do your kids go to?” I don't really understand the connection to their legal interview, and when they found out that his kids attended a religious institution, they asked him why they would go to a religious institution. Well, it turns out in my state, lots and lots of Lutherans and Catholics and lots of non-Lutherans and Catholics send their kids to Lutheran and Catholic schools. I don’t know what that has to do with someone’s competence, man or woman, to sit as an objective judge on a court of appeals, and yet the interviewers decided they should go there.  

Then they began to refer to Mr. Grasz repeatedly in the interview as "You people." They would frame questions to him and ask about “You people”. At one point, he finally paused and said, “Can you tell me who ‘you people’ are?” because at this point, he didn't know if it was pro-life people, people who send their kids to religious schools, maybe just Nebraskans. They informed him that they were using the term "You people" to mean conservatives or Republicans. 

The ABA continues to deliver "not qualified" ratings for President Trump's nominees, not for any defect in their careers, qualifications, or legal scholarship but because they happen to belong to the dastardly "you people."  Of course, Senate Democrats tout the "not qualified" ratings while ignoring when nominees like now-Justice Neil Gorsuch receive the "gold standard" of a unanimously well qualified rating.  Thankfully Senate Majority Leader Mitch McConnell and  Senate Judiciary Chairman Chuck Grassley are willing to overlook the ABA's pettiness and still consider these excellent nominees.

Judicial Nominations: Democrats Have Nothing But Character Attacks

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Senate Democrats are attacking and delaying President Trump's excellent judicial nominees:

Thirty years ago, the Senate rejected Judge Robert Bork for the Supreme Court after a series of unprecedented and often untrue attacks by Democrats on one of the nation’s foremost legal scholars.  Today, the Democrats and their allies are arguably treating judicial nominees worse.  For while the attacks were one-sided, the vote to defeat Judge Bork was at least bipartisan.  Today, Democrats and their allies make no such efforts to actually defeat nominees they do not like; instead, they attempt to obstruct and sully the character of nominees.

But Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley have expertly led the Senate and are not allowing the Democrats to prevail:

Fortunately, Senate Judiciary Committee Chairman Chuck Grassley does not have unlimited patience with Democrats’ games and obstruction.  Thanks to the leadership of Chairman Grassley, 18 nominees are now on the floor awaiting a vote.  And the need is great.  There are still over 140 vacancies on the federal bench, with 64 classified as judicial emergencies. 

Majority Leader Mitch McConnell has also tired of Senate Democrats’ partisanship and has made the confirmation of judges a priority, with four Circuit Court nominees to be confirmed by the end of this week.  As of publication, the new Judge Barrett of the Seventh Circuit and Judge Larsen of the Sixth Circuit have just been confirmed. 

Despite the Democrats’ obstruction and delays, Chairman Grassley and Leader McConnell are keeping the process moving, understanding how important these principled nominees are to the American people.  Democrats have forced cloture votes on all confirmed judicial nominees from President Trump, compared to none at this point in the Obama, George W. Bush, Clinton, or Reagan administrations.  Of course, these cloture votes are simply a delaying tactic, since the Democrats abolished the filibuster for judicial nominations lower than Supreme Court in 2013.

Mr. Thielen provides examples from several currently pending and recently confirmed nominees, including Scott Palk, just confirmed for the Western District of Oklahoma; David Stras, nominated for the Eighth Circuit; Ryan Bounds, nominated for the Ninth Circuit; Amy Barrett, just confirmed to the Seventh Circuit; and Steven Grasz, nominated to the Eighth Circuit.  Democrats have baselessly attacked all of them, including Palk who was first nominated to the seat by President Obama, but Leader McConnell and Chairman Grassley are working to ensure that all these superb nominees are confirmed.

Various Factors Affect Schedule for Judicial Nominees in Senate

President Trump's White House continues sending excellent judicial nominees to the Senate for consideration.  While everyone wants his or her favorite nominee to be the first considered, Roll Call laid out the practical factors that will affect the schedule in the Senate.  

First, the sheer number of vacancies and pending nominations.  Second, the Republican response to Democrats' abuse of the blue slip process:

“My view is that a blue slip on a circuit judge is simply a notification of how you’re going to vote. To conclude otherwise would’ve left us in the following position at the beginning of this Senate: 48 Democratic senators would’ve been able to blackball 62 percent of the circuit judge nominees. That’s simply not a tenable place to land in a Senate that now deals with judges on the — with a simple majority,” [Senate Majority Leader Mitch McConnell] said. . . . In May, [Senate Judiciary Committee Chairman Chuck] Grassley indicated he could give more deference to Democrats on district court judges than circuit court nominees. 

Third, Democrats' efforts to delay President Trump's nominees whenever possible:

Despite the nuclear changes, Republicans fume that their Democratic colleagues are obstructing Trump’s agenda by slow-walking confirmations. . . . Earlier this month, frustrated with requirements to file cloture motions to cut off debate on many Trump nominations, McConnell said he shouldn’t have to do so on picks that seem to have wide support. . . . 

The procedural change hasn’t allowed the party in charge to move as fast as its conference would like. It can still take multiple days to confirm each nominee under the cloture procedure to limit debate, even with the lower threshold — typically 51 when all 100 senators participate. 

And Democrats continue to use those rules to consider most nominees one at a time. They have not allowed any of Trump’s judicial picks to bypass procedural hurdles in committee or on the floor.

The Democrats' strategy since day one of the Trump Administration has been to attack, delay, and obstruct.  We are grateful for the leadership of Don McGahn in the White House Counsel's office, Leader McConnell in the Senate, and Chairman Grassley on the Senate Judiciary Committee in ensuring that excellent attorneys are nominated for and confirmed to the federal bench.

Now Democrats Are Making Up Reasons to Obstruct President Trump's Qualified Judicial Nominees

Senate Democrats have created a new reason to obstruct the confirmation of qualified judicial nominees for purely partisan reasons, as part of their continuing campaign: deference to non-existent commissions.  In a letter Senators Ron Wyden and Jeff Merkley stated: 

"[W]e cannot return a blue slip on any judicial nominee that has not been approved by our bipartisan judicial selection committee. . . . We have a long history of organizing a committee charged with thoroughly vetting applicants from the Oregon legal community.”

The only problem is such a committee does not exist for circuit court nominees and never has.  Don’t take a partisan's word for it; take the word of the last person from Oregon nominated to the Ninth Circuit:

The last Oregon vacancy in the ninth circuit came during the Clinton administration when Oregon Judge Edward Leavy assumed senior status in 1997. Leavy's replacement, Judge Susan Graber, did not come out of a selection committee—in fact, she said that one didn't even exist.

"There is no selection commission in my jurisdiction to recommend candidates for nomination to the United States Court of Appeals," Graber wrote in her official judicial nominee questionnaire.

Graber went on to explain she was selected for the seat after she reached out to President Clinton.

"I informed the President by letter of my interest in being considered for that vacancy," Graber wrote. "His response stated that he had referred the matter to the White House Counsel's Office."

Senator Wyden was an Oregon Senator at the time and supported Ms. Graber despite never having been consulted by President Clinton’s White House Counsel or Ms. Graber having gone through any commission selection process.   

So actually, Senator Wyden, Oregon tradition (which you established) means deferring to the White House Counsel’s office. 

While that is unlikely to happen, it just goes to show that Democrats are literally making up reasons to obstruct President Trump’s judicial nominees.  

Personal Attacks Are All Liberals Have Against Trump Nominees

RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about the shameful and bizarre personal attacks against President Trump's nominees made by liberals and establishment Democrats:

Minnesota Supreme Court Justice David Stras has been nominated to the U.S. Court of Appeals for the Eighth Circuit.  He has over seven years of judicial opinions and six years of legal scholarship to scrutinize.  But instead of examining his record, liberal organizations have dismissed him as a “right-wing ideologue” who is simply a pawn of organizations like The Federalist Society. . . .

Notre Dame Law Professor Amy Barrett, nominated to the U.S. Court of Appeals for the Seventh Circuit, was likely surprised to discover during her confirmation hearing that her sincerely held Catholic beliefs might disqualifyher, as a conservative, from holding judicial office, at least according to Democrats on the Senate Judiciary Committee. 

Texas attorney Trey Trainor, nominated to the Federal Election Commission last week, also quickly came under fire for his sincerely held Catholic beliefs.  Like all the other nominees, Trainor’s true transgression is his conservative and libertarian views, particularly his vocal support for First Amendment rights and distrust of government bureaucrats’ efforts to regulate political speech.  The vast majority of the American people share these views—liberals also used to value the First Amendment—yet they have been painted as radical enough to disqualify Trainor from public service. . . .

These attacks are not based on an honest review of any nominee’s scholarship, policy views, work history, associations, or character but instead are based on the nominee having been nominated by Trump, having mainstream conservative or libertarian views, and being supported by conservatives and libertarians.  They seriously degrade our public discourse and prevent productive discussions and debates about a nominee’s policy views.

The piece closes by thanking those willing to serve our country despite the personal attacks that will be made against them simply for being nominated by President Trump and being conservative or libertarian.  These nominees are superb and we are immensely grateful.

Eric Dreiband Should Lead The DOJ’s Civil Rights Division

In the Daily Caller, RNLA President Elliot Berke penned an article calling for the fair and swift confirmation of his friend and former colleague Eric S. Dreiband to lead the Department of Justice's Civil Rights Division as Assistant Attorney General. Mr. Berke wrote the following of his friend:

One of the primary criticisms of Eric is that in private practice he’s been the “go to lawyer” for “big corporations.” As General Counsel of the Equal Employment Opportunity Commission during the Bush administration, Eric actually litigated against companies accused of discrimination. By the way, he was unanimously confirmed by the Senate for that position.

Eric served as Deputy Administrator of the U.S. Department of Labor’s Wage and Hour Division. In that capacity, he directed the federal government’s enforcement of the Fair Labor Standards Act, the Family and Medical Leave Act, the Migrant Seasonal Agricultural Worker Protection Act, and other federal labor laws. For his contribution to the department’s efforts to update the Fair Labor Standards Act’s overtime exemption regulations, he received the Secretary of Labor’s Exceptional Achievement Award. Eric also received the Secretary of Labor’s Compliance Assistance Award for leading the Labor Department’s efforts to increase compliance with the federal child labor laws.

Eric is a skilled and able attorney who represents his client’s interests zealously, whether his client is a corporation or the American people. He respects the law as written, and if confirmed as head of the Civil Rights Division, will seek to enforce federal civil rights laws to their full extent without following an activist or partisan agenda, just as he did at EEOC and the Department of Labor.

But as I’ve told the Senate Judiciary Committee, it is my personal and professional opinion that Eric will be an effective advocate for the protection of civil rights and for the prosecution of civil rights abuses. My hope is that he receives a fair hearing and swift Senate consideration, and that all sides realize what a talented lawyer they will have to advance the cause of justice.

Today, the Senate Judiciary Committee held a string of catch-up hearings on nominees by President Trump who were announced before Congress's summer recess.  The RNLA urges the swift confirmation of Eric Dreiband, Justice Larsen of Michigan for the 6th Circuit Court of Appeals, and the other well-qualified nominees who are currently held up by Senate Democrats obstructing President Trump's nominees.

Democrats Still Delaying Trump's Judicial Nominees

RNLA Vice President for Judicial Affairs Eric Lycan wrote in the Daily Caller today about how Senate Democrats are obstructing President Trump's excellent Executive Branch and judicial nominees:

How bad is the situation?  Senate Majority Leader Mitch McConnell recently stated: “If this continues it will take us more than 11 years to confirm the remaining presidential appointment[s].“  Statistics back this up, with almost four times as many nominees confirmed during President Obama’s first six months as President Trump’s. 

Sometimes this is just plain ridiculous.  Democrat Michigan Senators Gary Peters and Debbie Stabenow delayed returning their blue slips for highly qualified Michigan Supreme Court Justice Joan Larsen, nominated for the Sixth Circuit Court of Appeals.  While there are different definitions of blue slips, they are basically a vehicle to give home state Senators an opportunity to opine on a nominee.  Larsen had just been reelected by over 57% of the people in Michigan.   There is absolutely no reason for the delay as Judge Larsen is extremely well known and well respected and was even mentioned as a possible Supreme Court nominee by President Trump. 

Of course, possible Presidential candidate and Democrat Senator from Minnesota Al Franken has arguably taken it one step further.   Franken has still not returned his blue slip for Eighth Circuit nominee and Minnesota Supreme Court Justice David Stras.  Stras was actually elected with a higher percentage of the vote in Minnesota than Franken in either of his Senate races.  Yet Franken continues to sit on his blue slip for Stras. . . .  

The problem of nomination obstruction is especially dire when compared with the rapidly growing number of judicial vacancies.  Since President Trump was elected, the number of judicial vacancies has increased by 1/3.  President Trump’s judicial choices need to be confirmed.

We are grateful for President Trump, White House Counsel Don McGahn, and the entire White House Counsel's office for their excellent nominee selections and to Senate Majority Leader Mitch McConnell and Senate Judiciary Chair Chuck Grassley for their strong leadership and support of the nominees in the Senate.  Now it is up to the Democrats to stop obstructing and needlessly delaying well-qualified and well-respected nominees in an attempt to appease their radically liberal base.

Trump's Biggest Impact So Far: The Federal Courts

Legal experts on the right and left agree on one thing: President Trump has already had an enormous impact on the federal courts and is poised to restore and bolster respect for the rule of law in the federal judiciary for many years to come:

With five judges confirmed, another 30 pending and 123 seats left to fill, according to one group tracking the numbers, Trump has the opportunity to revamp the judiciary branch and carve out a legacy for himself that could stand the test of time. 

“It can’t be overstated the impact the individuals he’s appointing will have on millions of people across the country and their children for a generation or two,” said Dan Goldberg, legal director at the liberal Alliance for Justice (AFJ). . . . While another appointment to the high court in Trump’s presidency is possible or even likely, given the ages of several justices, it’s appointments to the lower district and circuit courts where the president is likely to have a bigger impact. . . . 

Conservatives, meanwhile, are accusing Democrats of “slow walking” the judicial nominations. Under the “blue slip” process, senators sign off on judicial nominees from their home state; they object to a nominee by failing to return the paper to the Judiciary Committee. . . . 

“Elections have consequences. It can’t be understated that judicial nominations, being lifetime appointments, are huge,” [Ilya Shapiro, a member of the conservative Federalist Society and senior fellow in constitutional studies at the Cato Institute,] said. 

The Senate Judiciary Committee is still waiting for these blue slips to be returned before it schedules hearings: Colorado Senator Michael Bennet for Justice Allison Eid, nominated to the 10th Circuit, and Minnesota Senators Amy Klobuchar and Al Franken for Justice David Stras, nominated to the 8th Circuit.  We are grateful for the leadership of Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chair Chuck Grassley in supporting the nominations of President Trump's qualified judicial nominees. The RNLA will continue to advocate for the swift confirmation of qualified federal judges, too. To sign up to help us with this effort, please click here.

Democrats Obstruct and Delay Trump's Nominees

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Senate Democrats are obstructing and delaying President Trump's nominees on an unprecedented scale:

Last month, President Trump claimed that the confirmation process for his cabinet had been “record-setting long — and I mean record-setting long — with some of the finest people in our country being delayed and delayed and delayed.”  Trump’s cabinet nominees were pending with the Senate for 25 days, on average, compared to zero to two days, on average, for the last three presidents.  Fourteen of them went through the cloture process, compared to just seven of President Obama’s cabinet nominees during his entire tenure.  Even the Washington Post recognized that Trump has “faced unusually sustained opposition for a new president” and gave his claim a rare Geppetto Checkmark, reserved for claims that are “surprisingly correct.” . . .  

No Democratic senator has returned a blue slip, a Senate tradition allowing senators to give approval for a judicial nominee from their state to move forward, for any of President Trump’s judicial nominees.  Michigan Supreme Court Justice Joan Larsen was nominated to the Sixth Circuit back on May 8.  Michigan voters re-elected Justice Larsen with 57 percent of the vote in 2016, and she is widely respected.  Yet Michigan has two Democrat senators, and her nomination may be delayed so that they can toe the party line laid down by Minority Leader Chuck Schumer. 

Only three of Trump’s nominee’s to the U.S. Department of Justice have been confirmed. . . . Noel Francisco’s nomination to be solicitor general, the number three position in the Justice Department, has been pending since April 24. . . . Most recently, Senator Dianne Feinstein, Ranking Member on the Senate Judiciary Committee, has signaled that Democrats intend to engage in wholesale obstruction of all U.S. Attorney nominees. . . .  

Democrats are traditionally the party of big government, looking to government for solutions to all of life’s problems, big and small.  But what we have learned since President Trump took office is that Democrats only look to the government when they are in control of it.  They are perfectly happy to obstruct government’s operation—and ignore the will of the people as expressed through our system of representative government—when they do not control the levers of power.

Mr. Thielen calls for an end to the delay and attacks tactics and for the American people to tell Democratic senators that they oppose "obstruction of qualified nominees in the Senate."

Order in the Court: Trump Continues to Nominate Stellar Judges for Vacancies

Over the last week, President Trump has nominated 21 judges to fill various lower Federal Court openings, including 8 who were named this past Wednesday. Currently, there are 132 judicial openings throughout the Federal Court system, nearly half the openings have been classified as “judicial emergencies” by the government's Administrative Office of the U.S. Courts. The most recent batch of judicial nominations is receiving the praise of conservative and libertarian legal scholars and leaders.

Today, Ilya Shapiro remarked in The Federalist:

This week, in an echo of how the 21 contenders for the Supreme Court vacancy were rolled out during the presidential campaign, 11 would-be black-robers join last month’s stellar list of 10 lower-court nominees . . . Case Western law professor Jonathan Adler, who appeared with me on a panel at Cato’s 40th anniversary celebration right before the May 8 announcement, says they’re “‘incredibly strong nominees’ who were within the judicial mainstream and should ‘have an intellectual influence on their courts.’” As they say in Congress, I wish to associate myself with that analysis—and to extend those remarks to apply to all the nominees we’ve seen thus far. . . .

If the other eight announced June 7 are of the same caliber as these three (and the previous 10)—and we have no reason to think otherwise given that the administration’s nominations staff is the same—then this is the sort of #winning of which I won’t ever tire . . . In the meantime, the White House counsel’s office should just keep these black-robe orders coming. Their work, and that of the Federalist Society’s Leonard Leo, has allowed President Trump—regardless of what else he does with his time—to continue fulfilling what was probably his most important campaign promise: to appoint “the best” judges. 

The Washington Times also published an article praising of these nominees and provided a brief expose of a few nominees that stand out: 

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, called the latest wave of nominees “a fantastic list.” . . . “Many of the nominees are well known in the conservative legal movement and have shown commitment to principled and evenhanded application of the law throughout their careers,” she said. “For the many Americans whose top concern in November was electing a president who would put committed constitutionalists to the courts, this is another major victory.”

According to Fox News, Senator Orrin Hatch (R-UT) released a statement on President Trump’s judicial nominees lauding their pick:

President Obama understood the singular importance of the lower courts, which is why he was so vigorous in appointing judges with a greater commitment to the liberal political agenda than to our Constitution . . . [However, t]he time has come to right the wrongs of the previous administration . . . These supremely qualified jurists will restore respect and credibility to the judicial branch by saying what the law is—not what it ought to be.

The RNLA praises President Trump and his Administration's work to fill the vacancies on the Federal Bench. These judges are an important step towards ensure the Rule of Law is applied and the Constitution is followed. We look forward to seeing many more judges with impeccable records, like the last score of judges nominated.