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May 9 2017

Trump Judicial Nominations: Time to Redress an Imbalance

by Charlotte Hays

President Trump made five nominations to the appellate courts on Monday.

The  Associated Press story on the nominations originally stated that with this action President Trump "begins his effort to pack the courts with conservatives."

This seems to have been altered in a subsequent iteration of the story to the more anodyne "to place more conservatives on the nation’s federal courts." But the first take is quite revealing, if not almost shocking. Powerline calls out the AP on court "packing":

Let’s stop right there. All presidents nominate judges with compatible philosophies. Did the Associated Press ever write that President Obama was “packing” the federal judiciary with liberals? I don’t think so. I tried this Google search–“associated press obama pack courts with liberals”–and got nothing.

The term "court packing" generally refers to President Franklin D. Roosevelt's attempt to--well--pack the court--one court in particular, the Supreme Court.

Roosevelt tried unsuccessfully to enlarge the Court, perhaps to as many as fifteen justices, in order to render ineffective justices who didn't go along with the legal requirements of FDR's New Deal. Court packing is enlarging courts to get a desired result. Nominating judges and justices after winning a presidential election is something else entirely.

Powerline goes on to make other observations about the AP handling of judicial nominations, quoting this from the wire story:

Trump’s earliest efforts to implement his agenda were dramatically derailed by the courts, which pushed back against his proposed travel ban and his order to withhold funding from “sanctuary cities” that limit cooperation with immigration authorities.

Powerline explains:

“The courts” didn’t “derail” the president’s agenda. Rather, a couple of Democratic Party stalwarts, who got the cases as a result of Democratic Party judge-shopping, issued absurd orders that are destined to be overturned in due course.

The AP goes on to quote that known voice of moderation, Senator Chuck Schumer:

“With this first slate of lower court nominees, it seems that the President is intent on continuing to outsource the judicial selection process to hard right, special interest groups rather than consulting with Senators on a bipartisan basis,” Senate Democratic leader Chuck Schumer of New York said in a statement. “The President should work with members of both parties to pick judges from within the judicial mainstream, who will interpret the law rather than make it.”

To which Powerline replies:

It might be possible to be more disingenuous than Chuck Schumer, but it wouldn’t be easy. Did Barack Obama “work with members of both parties” to “pick judges from within the judicial mainstream”? Like, for example, when he nominated Sonia Sotomayor and Elena Kagan? Of course not. Let alone when he nominated absurdly left-wing Court of Appeals and District Court judges, like the ones who have been selected by Democrats to block, temporarily, President Trump’s travel orders.

An editorial in the Wall Street Journal gives a better assessment of the president's nominations:

The five appellate nominees are Joan Larsen of the Michigan Supreme Court and John Bush of Kentucky to the Sixth Circuit, Kevin Newsom of Alabama to the 11th Circuit, David Stras of Minnesota to the Eighth Circuit and Amy Barrett of Indiana to the Seventh Circuit.

Judges Larsen and Stras were on Mr. Trump’s original list of 21 judges he said he’d consider for the Supreme Court, and the group has sterling credentials. Ms. Barrett is a law professor at Notre Dame who clerked for federal Judge Laurence Silberman, a giant of the appellate circuits, as well as the late Justice Antonin Scalia. Mr. Newsom is a former clerk to Justice David Souter and has argued multiple cases before the Supreme Court. Mr. Bush is a highly regarded lawyer in private practice who represented President Reagan during the Iran-Contra investigations.

It’s likely the left will pressure Democratic Senators like Al Franken (Minnesota) and Joe Donnelly (Indiana) to withhold their endorsements of the home state judges, known as “blue slips.” But White House Counsel Donald McGahn has put together impressive nominees who will be hard to obstruct for reasons beyond raw partisanship.

Prompt Senate action on the nominations is important—not least because the number of vacancies on the federal bench is around 129. After these latest nominees, that includes 14 on the appellate circuits. President Obama made 331 judicial appointments, and his nominees to the federal appeals courts now represent about a third of the judges.

According to the Brookings Institution, as of September 2016 there were 92 liberal appellate judges and 75 conservatives. It’s time to redress the balance in the 115th Congress while Republicans have a Senate majority.

The Supreme Court and lower courts supplied a reason for many voters to cast a ballot for Donald Trump. This is the second act (the Gorsuch confirmation was the first) of what promises to be a battle not to pack the courts but to assure that there are new judges who will adhere to the laws as written (as opposed to crusades against immigration orders progressives don't like).

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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