Sen. Collins Will Not Be Swayed by Abhorrent, Potentially Illegal Intimidation from Liberals on Kavanaugh

Radical liberal organizations are trying to intimidate Republican Senator Susan Collins from Maine into voting against the confirmation of Judge Brett Kavanaugh to the Supreme Court, even resorting to potentially illegal bribery and threatening her staff members.  The Wall Street Journal described the abhorrent campaign of intimidation against Senator Collins:  

A crowdfunding website is trying to strong-arm Senator Susan Collins, the Republican from Maine, by giving more than $1 million to her 2020 opponent—unless she opposes Judge Kavanaugh. . . . It isn’t clear this is even legal. We’re all for citizens exercising their free-speech rights, including campaign donations, for or against political candidates. But federal law defines the crime of bribery as “corruptly” offering “anything of value” to a public official, including a Member of Congress, with the intent to “influence any official act.” The crowdfunders in this case are offering something of value—withholding funds from her opponent—in return for a Supreme Court confirmation vote. . . . 

Another pressure tactic, one Ms. Collins says she finds “incredibly offensive,” is “the out-of-state voicemails being left on the answering machines of my state offices.” Many of the messages are profane. “In one case—and we are going to turn this over to the police, but unfortunately, of course, the person didn’t leave a name or number—but they actually threatened to rape one of my young female staffers.” 

The Senator’s office also has been receiving coat hangers in the mail, a grisly attempt to insinuate that a Justice Kavanaugh would restrict abortion rights. About 3,000 have arrived so far. “I am pleased to say,” Ms. Collins says with a small chuckle, “we had a group that has a thrift shop that helps low-income women ask us for 300 of the hangers. So at least 300 of them have gone to a very good cause.”

But Senator Collins will not be intimidated.  Instead, she will do her job under the Constitution's advice and consent requirement and evaluate Judge Kavanaugh based on his qualifications and his record:

Even diehard opponents of Judge Kavanaugh must recognize the unseemly nature of this bid to intimidate a U.S. Senator. Not that it will work. “I’m going to do what I think is right,” Ms. Collins says. “I am going to cast my vote—as I have done on all of the other Supreme Court nominees that I’ve been called upon to consider—based on his qualifications, his character and integrity, judicial temperament, his record, and his respect for the rule of law and fidelity to the Constitution.”

The lengths to which liberals and Democrats are willing to go to oppose Judge Kavanaugh show that they have no genuine basis for their opposition in either his qualifications or record and the depths to which they will descend to resist President Trump.  They are even willing to make unsubstantiated allegations of perjury against Judge Kavanaugh and mischaracterize his testimony during the hearings last week to such an extent that even The Washington Post's Fact Checker awarded the description four Pinocchios and said that "Democrats should drop this talking point." 

But Senator Collins deserves credit for not giving into the intimidation and remembering that her duty as a senator is to do what is right and represent the people of Maine, not bow to the radical liberal interests controlling the Democratic Party.

Justice Anthony Kennedy Retires From The Supreme Court

In what turned out to be one of the most important days in American history, Supreme Court Associate Justice Anthony Kennedy announced his resignation from the Bench after more than thirty years of service. The 1987 appointee of President Ronald Reagan hand delivered President Donald Trump a resignation letter that stated: 

My dear Mr. President,   

This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b). 

For a member of the legal profession it is the highest of honors to serve on this Court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises. 

Respectfully and sincerely,  

Anthony Kennedy

The RNLA immediately issued the following press release:

The Republican National Lawyers Association (RNLA) honors Supreme Court Justice Anthony Kennedy, who announced his retirement from the Supreme Court today. In his over 30 years on the Court, he has written some of the most seminal opinions in modern jurisprudence, and he will be remembered as one of the most important Supreme Court justices in American history. 

Justice Kennedy’s retirement leaves an important vacancy on the Supreme Court, and President Donald Trump will now have the opportunity to nominate a new Supreme Court justice from his superb list of potential Supreme Court nominees who respect the text of the Constitution and the role of the Court. While Senate Democrats have obstructed and delayed President Trump’s judicial nominees whenever possible, we trust that President Trump’s nominee will be vetted and confirmed due to the strong leadership of Senate Judiciary Committee Chairman Chuck Grassley and Majority Leader Mitch McConnell. 

RNLA President Elliot Berke stated: “Since he was appointed by President Reagan in his second term, Justice Kennedy has been an important voice on the Court. We wish him nothing but the best in retirement. President Trump has mentioned many excellent candidates to replace Justice Kennedy, and we urge the Senate to not play politics but consider his nominee in as expedient a manner as possible.” 

RNLA Chair John Ryder agreed: “Justice Kennedy has been a champion of First Amendment rights from political speech to the free exercise of religion. His voice and views have made a great contribution to our understanding of the Constitution."

Senate Majority Leader Mitch McConnell praised Justice Kennedy, particularly for his work in defending the First Amendment:

I want to express gratitude for the extraordinary service that Justice Kennedy has offered our nation. We owe him a debt of thanks for his ardent defense of the First Amendment right to political speech. #SCOTUS

— Leader McConnell (@SenateMajLdr) June 27, 2018

Chairman of the Senate Judiciary Committee Chuck Grassley said this of Justice Kennedy's tenure:

I thank Justice Kennedy for his decades of service to the law, to our republic + to the American ppl Our country owes him a debt of gratitude

— ChuckGrassley (@ChuckGrassley) June 27, 2018

The RNLA has a panel of legal experts available to discuss the retirement and the process for replacing Justice Kennedy. 

The RNLA will update this blog post as additional news comes out.

Last updated: June 27, 2018 at 5:00pm.

ICYMI: Wash. Post: Democrats Delaying in Senate But Trump Still Very Successful with Appellate Nominees

Last Thursday, the Washington Post looked into the general misconception that President Trump is "rush[ing] to fill the courts" and the Senate is confirming judicial nominees at a record pace. The short answer is they are not--except for appellate judgeships. The article had three key takeaways:

Overall, [President] Trump isn't filling judgeships as fast as many think:

Trump may seem like the rabbit in this story — quick out of the gate. But that’s only compared to Obama’s slower pace. Below, we show the total number of federal judges confirmed by the Senate through the first 17 months of a president’s term in office. . . As of May 31, 2018, the GOP-led Senate had confirmed 39 of Trump’s judicial nominations, including one Supreme Court justice. This places him second to last compared to the number of confirmed judges at this point in the term for presidents dating back to Ronald Reagan in 1981-82; only Obama comes in behind him. . .  

But [President Trump is] doing well on appeals court judges:

Where Trump and Senate Republicans stand out is in confirming appellate court judges. The GOP Senate has confirmed 21 of Trump’s nominations for judges to the courts of appeals — far outstripping others presidents’ records at this point in their terms, dating back to Reagan. 

Some believe that this focus on the appellate courts is a Trump administration strategy because these courts have a more powerful effect on policy and legal change. The courts of appeals hear all appeals from the federal trial courts and the federal bureaucracy. They hold authority over large regions of the nation. Their cases, like almost all of the U.S. Supreme Court’s cases, deal exclusively with how to interpret federal laws, executive orders, bureaucratic regulations and rules and the Constitution. . .

The Senate is moving more slowly than in the past:

In 2013, the Democrats were in charge of the Senate — and banned filibusters of judicial nominations on the lower federal courts. That means today’s Republican Senate can confirm nominees with a simple majority vote. . . . Yet eliminating the filibuster has not appreciably sped up confirmation of federal judges. On average, it has taken almost 190 days for the Senate to confirm each of Trump’s appellate and trial court judges. That is appreciably longer than previous presidents’ records. . . .

Also note, administration nominees are also being relentlessly delayed and obstructed by Senate Democrats in a manner previously unseen, which is resulting in the cancellation of the Senate's August Recess (recently discussed here).

Despite Senate Democrat obstruction tactics (discussed at lengthed here) to delay many nominees, Chairman Grassley and Senate Majority Leader McConnell are keeping up the pressure and working get President Trump's qualified judges and administration nominees confirmed by the Senate. The RNLA thanks them for their hard, important work.

Senate Democrat Obstruction: Canceled August Recess & Low Overall Confirmation Rate

Senate Majority Leader Mitch McConnell announced this afternoon the Senate's August recess has been cancelled due to the historic obstruction efforts from Senate Democrats. Leader McConnell's statement: 

Due to the historic obstruction by Senate Democrats of the president’s nominees, and the goal of passing appropriations bills prior to the end of the fiscal year, the August recess has been canceled. Senators should expect to remain in session in August to pass legislation, including appropriations bills, and to make additional progress on the president’s nominees.

Background: It is expected that Senators will have a state work period during the first full week in August before returning for the rest of the month. 

Earlier this week, on Saturday, June 2nd, President Trump said in his weekly address to the public that the Democratic resistance movement is “resisting the will of the American voter.” According the White House, when compared with recent presidents, President Trump has had the fewest nominees confirmed to date.

PolitiFact found that President Trump has also had the smallest percentage of nominees confirmed as of March 16th with only 57 percent of Trump’s nominees having been confirmed, below that of Presidents Barack Obama (67 percent), George W. Bush (78 percent), Bill Clinton and George H.W. Bush (each with 81 percent).

President Trump explained:

From day one, Senate Democrats have shamelessly obstructed, stalled, and filibustered the confirmations of hundreds of talented men and women who are eager to come to Washington, D.C. to make a difference. They want to serve our country.

My nominees face a longer average confirmation wait than any in the history of our country. Today, more than 300 of our nominees are still awaiting a vote.

Last June, I nominated Isabel Patelunas to serve as Assistant Secretary of the Treasury for Intelligence and Analysis. Now, almost a year later, this tremendously qualified professional with nearly three decades of intelligence experience is still awaiting confirmation. She’s given up so much. She’s left areas. She’s moved from homes and she’s still not confirmed. It’s a disgrace.

Senate Republicans are fighting back against this Democrat obstructionism, too. Chairman Chuck Grassley of the Senate Judiciary Committee stated on Friday the Senate should work into the August recess to help confirm judicial nominations. Chairman Grassley is also calling for ‘filibuster Fridays’ to speed up the confirmation process. Additional work days on Capitol Hill could help fill the vacant positions, but the true shame here is that the Democrat leadership is intent on playing partisan politics even if it harms the function of government and ultimately the American people.

President Trump has nominated many excellent nominees to lead our government and to become federal judges. The RNLA thanks Leader McConnell and Chairman Grassley for their leadership and initiative to confirm President Trump’s backlog of nominees pending before the Senate.

Supreme Court Vacancy Watch

Washington is abuzz with rumors of a possible upcoming Supreme Court vacancy. Many are trying to watch for clues and predict whether a vacancy is impending over the next several weeks. Traditionally, many judges and justices opt to retire at the end of a court's term, which for the U.S. Supreme Court occurs in last week of June.

This morning, The Hill published a story: "Kennedy retirement rumors shift into overdrive."

All eyes are on Justice Anthony Kennedy, 81, who reportedly considered calling it quits last spring. As the court’s current term winds to a close, speculation about his plans has again swept the capital, with court watchers searching for clues.

Those who say Kennedy is here to stay — at least for now — point to the fact that he’s already hired his law clerks for the next term, as Above the Law reported...“I don’t think he would have hired all four clerks for next year if he was seriously entertaining stepping down,” said Carl Tobias, a professor at the University of Richmond School of Law. “I just don’t think it’s going to happen.”

But Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, who clerked for the late Justice Antonin Scalia, said the small number of cases the court has granted could signal Kennedy is throwing in the towel. The court has only agreed to hear 15 cases so far next term....“One possibility is they are not granting cases because they don’t know who their ninth member is going to be. … You could imagine Kennedy telling the chief, ‘I’d like to keep this between us, but I’d like to retire,’ and the chief saying, ‘Let’s see who Kennedy’s replacement is before we grant all these cases,’” Samuel said. . . 

Of course, this is like reading tea leaves.

But regardless of this, it is important to note that if another vacancy should occur during President Trump's term, President Trump and his Administration are ready. The President already has put out a revised list of twenty-five potential Supreme Court nominees, based upon the list he unveiled on the campaign trail in 2016.

While this version of the list was put out on November 17, 2017, it has been maintained and updated since then (i.e., Judge Stras was just confirmed by the Senate to the Eighth Circuit on January 30th, yet is up-to-date with current position below).

President Donald J. Trump’s Supreme Court List:

• Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit

• Keith Blackwell of Georgia, Supreme Court of Georgia

• Charles Canady of Florida, Supreme Court of Florida

• Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit

• Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit

• Britt Grant of Georgia, Supreme Court of Georgia

• Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit

• Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit

• Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit

• Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit

• Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit

• Mike Lee of Utah, United States Senator

• Thomas Lee of Utah, Supreme Court of Utah

• Edward Mansfield of Iowa, Supreme Court of Iowa

• Federico Moreno of Florida, U.S. District Court for the Southern District of Florida

• Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit

• William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit

• Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces

• David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit

• Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit

• Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit

• Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit

• Robert Young of Michigan, Supreme Court of Michigan (Ret.)

• Don Willett of Texas, Supreme Court of Texas [recently confirmed to the Fifth Circuit]

• Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

It is noteworthy that several on this list have recently had nominations and confirmation hearings before this Senate (within the last 18 months), including: Coney Barrett, Eid, Larsen, Newsom, Stras, and Thapar.

We will keep an eye on what could become the political battle of the year. Should this occur, the RNLA will be one of the leading sources for all things Supreme Court and judicial nominations.

Senate Democrats Again Attack Judicial Nominees for Not Sharing Personal Views

Perhaps realizing that their ahistorical and inaccurate laments over the death of the blue slip tradition last week were ineffective, during today's Senate Judiciary Committee meeting, Democrats returned to attacking President Trump's judicial nominees' qualifications.  Today is the 64th anniversary of Brown v. Board of Education of Topeka, so the Democrats chose that as their preferred mode of attack.

Texas Senator and Majority Whip John Cornyn identified the root of their weak arguments - justification for their blind opposition to all of President Trump's nominees (beginning at 50:00):

I agree with Senator Kennedy that many of the nominees have become overly cautious and unwilling to discuss substantive legal arguments that would be entirely appropriate to ask about.  But I understand why they've become so cautious.  Because a comment made in a political campaign like Mr. Truncale or by Wendy Vitter as sort of a throwaway line when she recognized the binding nature of the Brown decision -- all these are used as excuses and fodder to oppose, uniformly almost, the President's nominees.  And so, perhaps they have become overly cautious and unwilling to have a fulsome discussion.  If in fact this were what I would call [an] unbiased forum for discussion of these issues, I think you would find a different sort of outcome.   

But the idea that the witnesses somehow don't recognize the binding nature of Brown v. Board of Education is ludicrous.  It's a phony, made-up issue.  Everybody recognizes that Brown v. Board of Education as being binding precedent of the United States Supreme Court.  So the idea that somehow these witnesses are unwilling to commit to it or agree to it because of their concern about their ethical  obligations and to suggest that that implies that somehow they would not apply it as the binding precedent of the United States Supreme Court is a ruse.  It's a made-up issue.   

So, Mr. Oldham is too young to be confirmed to the United States Court of Appeals to the Fifth Circuit.  He's 39 years old.  And I guess I don't know what age limit our Democratic colleagues would consider people eligible for the Court of Appeals.  It sounds like some form of age discrimination to me, to say arbitrarily if you're 39 years old, you're too young.  Notwithstanding his incredible academic and legal background, which is really impressive.  And then the suggestion that Mr. Oldham is somehow disqualified because he has represented, zealously represented, his client in court and to somehow say that because he's an advocate, he must therefore share those views personally, when he said his personal views will not dictate his legal judgment -- those are two separate things -- I think again is really pretext for uniformly opposing this President's nominees. 

We know that almost all of these are going to voted on on party line, and I guess there has to be some reason to object to these nominees.  But the idea that somebody is too young, or disqualified because they represented a client in court and those views may be unpopular with our Democratic colleagues, or that somehow personal views are more important than your fidelity to the law, when in fact I think uniformly the nominees have said they would not impose their personal views but would enforce the law: this makes no sense to me.

Tom Jipping, who has newly joined the Heritage Foundation and National Review's Bench Memos after being Senator Orrin Hatch's nominations counsel for many years, reminded us in his first Bench Memos post that our entire system of the rule of law relies on judges interpreting the law without imposing their personal views:

Today, in the Judiciary Committee’s business meeting, Chairman Charles Grassley addressed efforts to force judicial nominees to express personal views on issues or cases in their confirmation hearings. . . . Grassley was correct to oppose this approach. The push for nominees to express personal views undermines not only the impartiality on which the legitimacy of our judicial system depends, but the confidence of our fellow citizens in that system. . . .

America’s Founders established a system of government designed to maximize ordered liberty by limiting government. . . . And the judiciary, as part of that system, is also designed to work in a particular way. Federal judges interpret and apply the law, such as statutes and the Constitution, as it is and applying it to decide individual cases. They must do both tasks, interpretation and application, impartially by eliminating their personal views as much as possible.

Thanks to Chairman Grassley, Senator Cornyn, and many other Republican senators on the committee who strongly defended the nominees against the Democrats "phony, made-up" objections (see Utah Senator Mike Lee's statement beginning at 1:05:28). 

Trump Judges: By the Numbers

Under the leadership of Senate Majority Leader Mitch McConnell and Senate Judiciary Chairman Chuck Grassley, President Trump's well qualified judicial nominees are slowly, but surely, getting confirmed despite obstructionist Senate Democrats. In this post, we wanted to provide a brief recap of the current judicial landscape.

According to Administrative Office of the U.S. Courts, as of today (May 16, 2018):

• There are 147 federal judicial vacancies out of 890 authorized federal judgeships.
• These vacancies include 15 circuit court vacancies and 124 district court vacancies.
• Of them, 72, or nearly half, are deemed "judicial emergencies."

So far, during the Trump Administration: 

• The White House has 73 judicial nominations currently pending at various stages in the Senate.
• Since President Trump has taken office, the Senate has confirmed: 1 Supreme Court justice, 21 circuit court judges, and 17 district judges (note: link is missing the two most recent circuit court judge confirmation from earlier this week (Carson & Nalbandian).

In the Senate, currently:

• Per Ed Whelan in National Review: 1 circuit judicial nominee is pending on the Senate floor, 2 nominees are waiting to be reported out of committee, and 7 are awaiting a confirmation hearing.
• As for district court nominees: 32 nominees are pending on the Senate floor and 40 nominees are pending before the Senate Judiciary Committee.

Meanwhile, Senate Democrats' obstruction tactics have slowed the process:

• On average, it has taken 84 days to confirm a Trump nominee (both judicial and executive positions); which is longer than it did under Obama, G.W. Bush, Clinton, or G.H.W. Bush, according to the Partnership for Public Service.
• Senate Democrats are using Senate procedures to delay confirmation votes, routinely forcing cloture votes and 30-hour post-cloture debate time. At this rate, it would take President Trump more than 9 years to confirm all his nominees.

The RNLA will continue to regularly highlight and keep our members posted on developments in the Senate related to judicial nominations and confirmations.

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.

Circuit Judge Week: Bounds Hearing Complete, Engelhardt Confirmed & Cloture Filed in Brennan Nomination

As we highlighted earlier this week, this is an important week for many of President Trump's judicial nominees, especially circuit court nominees. Several noteworthy events happened today.


Ryan Bounds
Today, Ryan Bounds, nominated to the Ninth Circuit Court of Appeals back in September 2017, finally had his Senate confirmation hearing (which can be viewed here). Bounds did very well and answered all the questions posed to him. Nonetheless, the obstructionist Senate Democrats brought up two attack narratives which have been repeatedly debunked: some notion that Bounds was less than transparent in providing documents during his initial vetting and arguing that the blue slip tradition is being abandoned.

First, some Senate Democrats tried to claim that Bounds was less than transparent during the vetting process, citing articles he wrote in college that poked fun at political correctness and attempted to offer a commentary on problems he saw in his college community. Ironically, Senator Ron Wyden of Oregon attempted to lead this attack, as could be seen on his Senate Floor speech yesterday (at about the 2:00:00 mark). However, as Ed Whelan points out, it was Wyden's own office that advised Bound to only go back through law school for pre-nomination vetting. So, not only is Wyden misleading in this attack, but Bounds followed the advice he sought from Wyden's Office. Further, once there was some question about these writings, Bounds provided these articles for review and further vetting.

Second, many Senate Democrats chose to argue the blue slips talking points again. Throughout the Bounds' hearing, a variety of Senate Democrats repeatedly attempted to bring up that the blue slip tradition has been abandoned or somehow modified. But it has not.

Following Bounds' hearing, Chairman Chuck Grassley delivered a speech on the Senate Floor highlighting the blue slip process under his chairmanship. He specifically noted (around the 3:41:00 mark):

[I]t is my prerogative to have the same blue slip policy as Chairman Biden and Kennedy and the vast majority of predecessors. Accordingly, I have said this, that negative or unreturned blue slips will not necessarily preclude the hearing for circuit court nominees unless the White House failed to consult with home state senators. And I get all sorts of information–I demand all sorts of information from the White House on this sort of consultation that's gone on. That is why I held hearings for David Stras, Kyle Duncan, Michael Brennan and Ryan Bounds despite the lack of two positive blue slips from home state senators. This policy is completely bipartisan. I've applied it to blue slips of Democratic and Republican senators. . . .

This speech is consistent with Chairman Grassley's explanation since the blue slip process became "controversial." Repeatedly, Chairman Grassley has explained how he will handle blue slips in his Judiciary Committee.


Kurt Engelhardt & Michael Brennan
On Senate Floor today, the Senate confirmed District Court Judge Kurt Engelhardt to the Fifth Circuit Court of Appeals, with a vote of 62-34. 

The Senate also voted to invoke cloture regarding the nomination of Michael Brennan to the Seventh Circuit Court of Appeals. As you may remember, Brennan is another nominee that the obstructionist Senate Democrats attempted to cry foul over the blue slip process. This will be another major vote to watch later this week.


We applaud and thank Leader Mitch McConnell and Chairman Chuck Grassley for their leadership in filling these important judicial vacancies and working to solve our judicial crisis. By filling these posts, the federal courts will run more efficiently and with less of a backlog caused by understaffed courts and overloaded dockets.

Justice Gorsuch: One Year on the Bench

Just over a year ago, Justice Neil Gorsuch was confirmed by the Senate as the 101st Associate Justice of the United States Supreme Court. 

Justice Gorsuch has quickly become a leading and reliable voice for conservatives on the top court. He has joined the Court in hearing 60 cases in his first year, where he has drafted three opinions and many more concurrent opinions and dissenting opinions. 

In Business Insider this weekend, they noted about his writing style thus far:

Frequent readers of Gorsuch's writing as a justice say his style is designed to attract attention and reach an audience beyond law professors and experts...

Earlier this year Gorsuch began a dissent by citing English writer G.K. Chesterton, an opening that drew mixed reviews. He started an opinion involving water rights with a humorous quote attributed to actor Will Rogers, who is said to have called the Rio Grande "the only river I saw that needed irrigation.". . 

Opinion writing isn't new for Gorsuch, who spent a decade as a federal appeals court judge before joining the Supreme Court. Now, however, it comes with higher stakes and a broader audience. . . 

Business Insider continued, by noting other interesting hallmarks of Justice Gorsuch during his first year:

Since joining the court, Gorsuch has joined Justice Clarence Thomas as one of conservatives' favorite justices, fully agreeing with Thomas in 14 of the 17 cases in which the court has not been unanimous, according to statistics compiled in part by the website SCOTUSblog. . . 

[Justice] Scalia was from the outset of his time as a justice an aggressive questioner during arguments. Gorsuch is less dominant. So far this term he has asked an average of 16 questions per argument, the third highest average among the nine justices, according to SCOTUSblog. 

Gorsuch has made the courtroom audience laugh 11 times this term. That puts him in fifth place for laugh-getting by a justice, according to Boston University law professor Jay Wexler. One such moment came during arguments in a case about a baker who cited his religious beliefs in refusing to make a wedding cake for a gay couple. Gorsuch noted he's never had "a wedding cake that I would say tastes great."

The RNLA congratulates Justice Gorsuch on his first year on the Supreme Court Bench. We look forward to tracking his legacy as well as this term's biggest cases, which will surely be impacted by Justice Gorsuch's wisdom and wit.

Former Courtroom Adversary: Kyle Duncan Will Be "Surpassing" Jurist on 5th Circuit

Paul Baier, appellate lawyer and law professor at Louisiana State University, penned a glowing endorsement of his former courtroom adversary and friend Kyle Duncan recently in The Hill. Mr. Duncan was nominated by President Trump to the 5th Circuit Court of Appeals back on September 28, 2017 and his nomination is pending a full Senate confirmation vote.

Kyle Duncan is a magnificent nominee for the Fifth Circuit who ought to be swiftly confirmed. I have known him as a colleague and scholar of constitutional law at Louisiana State University Law School, and clashed with him as an adversary in the Louisiana Supreme Court's same-sex marriage case that followed Obergefell v. Hodges. 

Mr. Duncan represented the state and its ban, while Mr. Baier represented the couple at the center of this rematch.  Mr. Baier remarked:

Having battled on the front lines in the same-sex marriage litigation, I can attest to the passionate disagreement and often contentious nature of the issue…Through it all, however, I always appreciated and respected Kyle's advocacy for his client and his respect for the humanity of the same-sex couples who would be most affected by the case. While I disagreed with many of his arguments, often emphatically, I never found a trace of bias, bigotry, or any disrespect towards the same-sex individuals in the case. 

Both of us strove mightily as adversaries. But we continue to eat and drink as friends.

Kyle knows well the difference between the advocate's role for his client (in the same-sex marriage case, the State of Louisiana) and what he would be called upon to decide as a judge on the Fifth Circuit. I maintain this view of Kyle even after having faced off against him in the highly charged atmosphere of same-sex marriage litigation. His ability to act as a judge and not advocate will surely carry over to other questions of public importance facing the Fifth Circuit.

Mr. Baier concluded clearly explaining his support and respect for Kyle Duncan:

Kyle Duncan is as sharp a lawyer as any of the leading Supreme Court advocates with whom I am familiar, and I have had the good fortune of observing the work of the Fifth Circuit and the Supreme Court for over 40 years…In my judgment, Kyle Duncan, unquestionably, will make a surpassing Fifth Circuit judge and jurist. His confirmation should be supported by all who value judges committed to fairness and scrupulous application of the law. It's time for Kyle Duncan to be confirmed.

With Congress in recess for the next two weeks, the earliest the Senate will likely take up additional confirmation hearings and votes will be the week of April 9th.

We will keep you posted on these judicial confirmations, hearings, votes, and Democrats' attempts to obstruct President Trump's excellent nominees.

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.

The Senate Blue Slip Saga Continues

Senate Democrats continue to wish that the blue slip courtesy was a rule of the Senate. However, it is not a formal rule--never was a rule--just a courtesy to advise the Senate Judiciary Committee.

We have previously highlighted the history of the blue slip and how many past Senate Judiciary chairs have chosen to manage the blue slip.

Current Senate Judiciary Chairman Chuck Grassley has previously spoken on this issue: For circuit courts, which cover multiple states, a negative or unreturned  blue slips will not be permitted to hold up nominees, unless the White House failed to consult with the home state senators; however, for district courts, which are confined to one state, the blue slip will carry considerably more weight and influence.

Chairman Grassley is simply following the Biden-Kennedy Rule regarding blue slips in the Senate Judiciary Committee. Chairman Grassley explained:

The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah).

Chairman Grassley reiterated this point during Judge Michael Brennan's confirmation hearing for a Seventh Circuit judicial vacancy three weeks ago:

Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing . . . After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested. Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.

Senate Democrats, however, seek to continuously obstruct any efforts made by President Trump and Republicans by using any and all means. Ranking Member Dianne Feinstein stated [around the 20-minute mark]:

I really object to this . . . Senator [Baldwin] has come in and spoken with me…she feel grievously injured by this [holding a hearing without a blue slip returned]. She has worked with . . . a fine screening commission. And is deeply concerned this has happened . . .

In addition to raising the blue slip, Ranking Member Dianne Feinstein also attempted to allude to some gender bias, too, as she closed:

I find it really very hard — and particularly for a woman senator who has tried so hard, who has worked with her state commission — for her view to be rebuffed in this manner.

When asked about this comment, Ranking Member Feinstein's office did not comment further.

Nonetheless, Judge Brennan, who has garnered bipartisan support and is ABA-rated as "well-qualified," was voted out of the Senate Judiciary Committee with a vote of 11-10, sadly along partisan lines with Senate Democrats crying foul over a blue slip "rule" that does not exist.

Currently, Judge Brennan's nomination is pending on the Senate Floor, where he faces a full Senate confirmation vote. We thank Chairman Grassley for his leadership in the Senate Judiciary and work to hold hearings for President Trump's well qualified judicial nominees. 

New Excellent Judicial Nominees Show White House Cooperation with Senators

Despite the media's constant attempts to undermine the Trump presidency, it is undeniable that judicial nominations continue to be a resounding success for those who value the rule of law and respect for the text of the law.  Prof. Jonathan Adler wrote for The Volokh Conspiracy:

The White House announced its eleventh set of judicial nominees on Monday. As we've come to expect, the Administration put forward an impressive list of jurists, led by four noteworthy picks for appellate courts, including several who are guaranteed bipartisan support. 

The latest appellate nominees are Andy Oldham (Fifth Circuit), Michael Scudder (Seventh Circuit), Amy St. Eve (Seventh Circuit) and Mark Bennett (Ninth Circuit). In addition, Trump nominated John Nalbandian (Sixth CIrcuit) and Joel Carson (Tenth Circuit) in January and December, respectively.

Like previous appellate nominees, these have sterling credentials.  And as Prof. Adler describes, they also have the support of their home-state senators:

Although news stories tend to suggest the White House refuses to consult with Senators about potential judicial picks, this week's nominations tell quite a different story. All of the appellate nominations announced this week enjoy the support of their home-state Senators, including those from states with deep-blue delegations. 

The latest set of nominations illustrates that the Administration is more than willing to consult with home-state Senators before making judicial picks, even for appellate courts. All that's necessary is for Senators to negotiate in good faith. They also suggest that insofar as vacant seats on some courts languish without nominees, it's unlikely due to a lack of effort by the White House Counsel's office.

As Prof. Adler points out, if some of the most liberal and noteworthy senators could come to an agreement with the White House on excellent nominees to help with the increasing crisis in the number of vacancies, other senators must be simply obstructing for the sake of obstructing by their failure to work with the White House.  Despite what is reported in the media and the complaints of Democratic Senate leadership, the White House is willing to work with Democratic senators.  But judicial nominations are a priority, so neither the White House nor Senate Judiciary Chairman Chuck Grassley are willing to let the Democrats' mindless obstruction keep them from appointing superb nominees after a reasonable period of consultation.  For that, we are immensely grateful. 

On President Reagan's Birthday - His Views on the Judiciary

Today would have been President Ronald Reagan's 107th birthday.  To honor his legacy and the immense impact he had on our nation's courts through his judicial nominees, here are some of his views on the judiciary, the rule of law, and the Constitution.

President Reagan, Speech at the Investiture of Supreme Court Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia, White House, September 26, 1986:

[The Founders] settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. In the convention and during the debates on ratification, some said that there was a danger of the courts making laws rather than interpreting them. The framers of our Constitution believed, however, that the judiciary they envisioned would be "the least dangerous'' branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had "neither force nor will, but merely judgment.'' The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported. . . . 

Hamilton, Jefferson, and all the Founding Fathers recognized that the Constitution is the supreme and ultimate expression of the will of the American people. They saw that no one in office could remain above it, if freedom were to survive through the ages. They understood that, in the words of James Madison, if "the sense in which the Constitution was accepted and ratified by the nation is not the guide to expounding it, there can be no security for a faithful exercise of its powers.'' The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not -- as it is not -- will we have liberal or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people? And this is why the principle of judicial restraint has had an honored place in our tradition. Progressive, as well as conservative, judges have insisted on its importance -- Justice Holmes, for example, and Justice Felix Frankfurter, who once said, "The highest exercise of judicial dutyis to subordinate one's personal pulls and one's private views to the law.'' 

Chief Justice Rehnquist and Justice Scalia have demonstrated in their opinions that they stand with Holmes and Frankfurter on this question. I nominated them with this principle very much in mind. And Chief Justice Burger, in his opinions, was also a champion of restraint. All three men understand that the Founding Fathers designed a system of checks and balances, and of limited government, because they knew that the great preserver of our freedoms would never be the courts or either of the other branches alone. It would always be the totality of our constitutional system, with no one part getting the upper hand. And that's why the judiciary must be independent. And that is why it must exercise restraint.

President Reagan, Radio Address to the Nation on the Supreme Court Nomination of Robert H. Bork, October 10, 1987 (the day after Judge Bork withdrew his nomination to the Supreme Court):

Former Chief Justice Warren Burger, too, called the tactics used against Judge Bork disinformation but the real test is to the principles that were established by the Founding Fathers when they created the Constitution. The Washington Post columnist David Broder recently wrote: "To subject judges and judicial appointees to propaganda torture tests does terrible damage to the underlying values of this democracy and the safeguards of our freedoms." But despite these courageous words from a few individuals, many here in Washington closed their eyes to the wrong being done to the judicial process. . . . 

During his confirmation hearings, Judge Bork had given us all a national lesson in our legal tradition and the importance of judicial restraint-the belief of our Founding Fathers that it was the role of the judge to interpret the law, not to preempt the rights of the people and their legislatures by making the law. So, I could understand then why Judge Bork might choose to withdraw and simply return to the Court of Appeals. I wish you could have been there as Judge Bork explained his decision—as he looked me in the eye and said we must do not what was right or easy, for himself, but what was right for the country. . . . 

Judge Bork said a critical principle was at stake. He explained it this way, and again I quote: "Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially, according to law. But when judicial nominees are assessed and treated like political candidates the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of our judges, and to endanger the independence of the judiciary." . . . 

I agree with Judge Bork that there are no illusions. Our judges should be faithful to the written Constitution, the bedrock of our liberties. Those selected for the Supreme Court must be aware of all points of view and their decisions based on government by the people.

Former Attorney General Ed Meese, "Reagan Upheld the Rule of Law," February 3, 2011:

As he was running for president, Ronald Reagan raised the issue of “judicial activism” among the federal courts. He noted that too many judges were substituting their own personal views, policy preferences and political ideas for what the Constitution and the statutes enacted by Congress actually provided. Many legal scholars and knowledgeable observers were concerned that we were no longer a government of laws, but a government where the result depended on who the judge might be. This was particularly true in such cases as religious liberty, freedom of speech, economic affairs and criminal justice. These were matters that most affected the personal lives of American citizens. 

Most important to the president was the fact that judicial activism violated the basic constitutional principles of limited government and of checks and balances. When the federal courts turned from interpreting the law to making the law or improperly interfered with the actions of the executive branch, they usurped the powers of the other two branches. 

Ronald Reagan was committed to restoring the concept of constitutional fidelity. Judges, he maintained, should base their decisions on the original meaning of the Constitution and of the federal statutes. He explained that the Founding Fathers had given careful thought to the role of the federal judiciary and thought that it should be independent and strong, but with its powers confined within the boundaries of a written Constitution and laws. 

He considered this principle, known as judicial restraint, critical to the fair administration of justice. He said that the courts, like the Constitution itself, must not be liberal or conservative, but solely focused on following the law and preserving justice.

Senator Orrin Hatch, Speech to the RNLA, May 6, 2011:

Make no mistake, such things as moral reflections, personal impressions, or theoretical opinions are not enough to protect our liberty.  Judges who take an oath to support and defend the Constitution, but who believe that they determine its meaning, are really swearing to support and defend themselves.  Judges, and not the Constitution, become the supreme law of the land if they control what the Constitution really is. 

President Reagan sought to reassert that the Constitution embodies inescapable and enduring mandates established by the people, and to appoint judges who believed the same.   His predecessor, Jimmy Carter, is the only full-term President in American history not to appoint a Supreme Court Justice, which perhaps is proof that there is indeed a God who is looking out for us after all.  After spending four years on the Judiciary Committee examining President Carter’s lower court nominees, I spoke loudly in the 1980 campaign against what I called avant garde liberal activists who will legislate from the bench.  President Reagan was elected promising to appoint a very different kind of judge.

Happy birthday, President Reagan.  We are still reaping the legacy of your deep respect for the rule of law and the written Constitution as reflected in the judges you nominated to the federal bench.  And the principles you outlined are once again being honored and followed in the White House as President Trump seeks to nominate judges committed to the rule of law, not of unelected judges.