Friday, November 17, 2017

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:







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.

Thursday, November 16, 2017

Chairman Grassley: President Trump's Judicial Nominees Entitled to a Fair Shake, too

Chairman Chuck Grassley of the Senate Judiciary Committee has been discussing his blue slip process over the last couple days. He penned an opinion article yesterday in The Hill. In the article, Chairman Grassley discussed the origin of the blue slips and the real history of their use:

Nearly a century ago, Sen. Thomas Hardwick sent a blue sheet of paper to the chairman of the Senate Judiciary Committee claiming that a nominee from his home state of Georgia was “personally offensive and objectionable.” Nonetheless, the committee proceeded on the nomination and reported the nominee to the Senate floor. . . That blue sheet of paper [the “blue slip”] was a part of a newly-adopted courtesy to get insights on federal court nominees from home-state senators in an era when such information was hard to come by. . .
Chairman Grassley went on to explain why this controversy has only recently arisen and is the fallout from the so-called "nuclear option" being invoked by then-Senate Majority Leader Harry Reid in 2013.

Fast forward to today. Some of my Democratic colleagues are attempting to rewrite history, falsely claiming that the blue slip courtesy is meant to give a single home-state senator veto power over the president’s judicial nominations . . . Democratic senators’ recent calls for a historical interpretation of the blue slip courtesy stem from a decision they made in 2013 to end the 60-vote filibuster for lower court nominees. This move, often referred to as the “nuclear option,” effectively silenced half of the Senate during confirmation votes. At the time, many Democratic senators argued it was unfair for a minority of senators to block nominees with majority support . . . But now that they are in the minority, Democrats are scrambling to cope with the fallout from their decision to deploy the nuclear option. . .
Republicans never abused this process in the same way under President Obama or any other Democratic president. In fact, what Democrats are doing is unprecedented obstructionism, which sadly has been effective so far:

As the minority continues its campaign to block President Trump’s nominees, some are looking to the blue slip as a way to halt judicial nominees before they are even considered in committee. To justify this move, they argue that few nominees have been confirmed since 1979 without support from both home state senators. But this talking point ignores the fact that nominees without two positive blue slips were often filibustered on the Senate floor after a committee hearing.
[A]ny suggestion that Republicans abused the blue slip under President Obama is simply untrue. . . Republican senators did not block any circuit court nominees during the first two years of the Obama administration via the blue slip. Meanwhile, Democrats have already attempted to block three of President Trump’s circuit court nominees by not returning blue slips. . . President Obama’s judicial nominees received a fair shake by the Senate. President Trump’s nominees are entitled to the same.

Today, Chairman Grassley made some more news regarding blue slips. Politico is reporting the Senate Judiciary Committee will schedule hearings for two of President Trump's judicial nominees. Chairman Grassley clarified his move by stating, “I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators... But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.”

The RNLA applauds Chairman Grassley for his leadership and his efforts to get President Trump's well-qualified judicial nominees through the confirmation process.

Wednesday, November 15, 2017

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.

Tuesday, November 14, 2017

AG Sessions Testifies Before House Judiciary; Highlights Promotion of Rule of Law at DOJ

Today, Attorney General Jeff Sessions testified before the House Judiciary Committee.  In his opening statement, he shared how the Department of Justice has advanced the rule of law since he took office:
After careful review, we have established a reinvigorated Project Safe Neighborhood program, as the foundational policy for public safety. . . . We have seen a 23 percent increase in gun prosecutions in the second quarter of this fiscal year. . . . We are making it clear that we stand with our law enforcement partners 100 percent. . . . We have also protected the rule of law in our own Department. We have prohibited so-called third party settlements that were being used to bankroll outside interest groups.

We have settled civil cases regarding the Affordable Care Act’s birth control mandate and settled the cases of many groups whose tax-exempt status was significantly and wrongly delayed by the Internal Revenue Service. We have also provided legal counsel to this administration in favor of ending several other unlawful policies. . . . We have filed briefs defending properly enacted state voter identification laws, lawful redistricting plans, religious liberty, and free speech on college campuses. In short, it is our mission to restore the American people’s confidence in the Department of Justice by defending the rule of law and enforcing the laws as you have passed them. And it is a mission we are honored to undertake. 
Attorney General Sessions was testifying in part on his previous testimony concerning contacts of the Trump campaign with agents of the Russian government.  He noted that, while it would be difficult for anyone to recall a conversation had in passing with someone a year ago, he has always answered questions truthfully to the best of his recollection:
In all of my testimony, I can only do my best to answer all of your questions as I understand them and to the best of my memory. But I will not accept and reject accusations that I have ever lied under oath. That is a lie.

Let me be clear: I have at all times conducted myself honorably and in a manner consistent with the high standards and responsibilities of the Office of Attorney General. As I said before, my story has never changed. I have always told the truth, and I have answered every question to the best of my recollection as I will continue to do today.
Attorney General Sessions has been a lightning rod for controversy and accusations particularly because he has conducted himself so ethically and led the Department of Justice so effectively.  His leadership in turning the DOJ back to the rule of law is especially remarkable considering the number of Obama-appointee holdovers and acting department heads that remain at the DOJ due to Senate Democrats' delays and the liberal leanings of most of the career staff.  We thank Attorney General Sessions for his service and his willingness to go before Congress yet again to testify and help Congress fulfill its role of oversight of DOJ.

Monday, November 13, 2017

Supreme Court Grants Cert re Minnesota's Ban on Political Apparel at the Polls

Today, the Supreme Court granted a writ of certiorari in Minnesota Voters Alliance v. Mansky to decide whether "Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment":
The justices said they will review a Minnesota law whose challengers include Andrew Cilek, a man who wore a Tea Party Patriots T-shirt and a "Please I.D. Me" button when he went to the polls in 2010. 
Minnesota is one of at least 10 states with broad bans on political apparel at election sites, according to the challengers. A decision striking down those laws would mark a significant shift for the high court, which in 1992 upheld a Tennessee law that barred campaign materials promoting a specific candidate or party. That law didn’t mention more general political items.
This case has important implications both for free speech rights and for election administration:
That ruling "plainly does not endorse a categorical ban on all types of ‘political’ speech," the challengers argued in their appeal. The group includes the Minnesota Voters Alliance and Cilek, its executive director. 
Minnesota’s law bars the wearing of a "political badge, political button or other political insignia" inside the polling place. . . . The law "is a reasonable method to ensure that the polling place is a location where citizens can exercise the right to vote without confusion, distraction or distress, and election officials can preserve the integrity and reliability of elections," the state officials argued.
On the one hand, states have a strong interest in ensuring the orderly conduct of elections, including prohibiting certain conduct, such as electioneering, at polling places.  On the other hand, voters do not abandon their rights of free speech at the polling place door, and broad bans on anything "political" clearly infringe on a voter's free speech rights.  Even more disturbingly, a vague prohibition such as Minnesota's allows a low-ranking government official, often a poll worker hired just for the day, to determine the limits of a voter's right of free speech by defining "political" (which, in our current culture, has been expanded to embrace almost everything) according to the government official's opinions.  This is the type of tyranny, petty though it may seem, that the First Amendment was designed to combat. 

Friday, November 10, 2017

From Vote Fraud to Voter Intimidation: Philly Democrats do it All

Our recent blogs have detailed the multitude of problems in Philadelphia in the last year.  RNLA Executive Director Michael Thielen decided to tie them all together in one op-ed in the Daily Caller
At best in Philadelphia, it is hard to say where the incompetence ends and the vote fraud begins.  At worse, Democrats in Philadelphia are using Jim-Crow-style intimidation tactics on anyone who tries to vote for the Green or Republican candidates, or anyone but the Democrats’ chosen candidates.
The problems described by Thielen are not limited to the polling booth:
Democrat supporters in Philadelphia have actually preyed on the elderly, who could not or did not want to vote, let alone register to vote.  At the St. Francis Center for Rehabilitation and Health Care, seniors with dementia, who were unwilling to register or vote, or were otherwise not aware registered and voted absentee in a Democrat Primary.
[R]efusing to allow Green Party supporters to vote, aggressively questioning Green Party voters seeking assistance, and more.   [Pennsylvania Attorney General] Shapiro stated: “One should not chalk these actions up to typical partisanship or typical electioneering.  These were crimes.”
Shapiro stepped up and prosecuted Democrat election officials in one precinct.  The problems are not limited to one precinct.  Please check out the article for more details and unfortunately this blog in the futur,e as there are sure to be more posts on problems with Philadelphia elections.  

Wednesday, November 8, 2017

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.