Recently in Judicial Selection Category

"Are you now or have you ever been a member of the Communist Party Federalist Society?"

It's time for me to come clean.  I am a member.  I meet in an undisclosed location to back-channel judicial nominees to the Trump Administration, which bows to my orders.

Honestly, you can't make this stuff up.

P.S.  My wife is a co-founder of the Federalist Society.  This was back in the Eighties, when she was a University of Chicago law student in then-Prof. Scalia's class. I believe she was the first person he hired as a clerk when he went to the Supreme Court.  And yes, that is bragging. 
President Trump has nominated U. Penn. Professor Stephanos Bibas to the U.S. Court of Appeals for the Third Circuit (Penn., N.J., Del.).

Among other works, Prof. Bibas is the co-author of a brief, interesting essay, "The Heart Has Its Value: The Justifiable Persistence of the American Death Penalty."  Also noteworthy is The Right to Remain Silent Only Helps the Guilty, 88 Iowa L. Rev. 421 (2003).

Orin Kerr has this post at VC.  Doug Berman has this post at SL&P.

Also nominated to courts of appeals are Colorado Supreme Court Justice Allison Eid to the Tenth Circuit and District Judge Ralph Erickson to the Eighth Circuit.
Kent noted today's travel ban case, decided in an opinion written by Chief Judge Roger Gregory of the Fourth Circuit.

There is an interesting story about how Judge Gregory got his job.  It contains a warning for Republicans.
What does the FBI need right now?

A person of unquestioned integrity and ability but without a whiff of politics. Someone with extensive experience. Someone who has spent her life in service to her country.

Ladies and gentlemen, meet my choice for the next FBI Director, Judge Julie Carnes of the United States Court of Appeals for the Eleventh Circuit.  Judge Carnes was nominated for her seat by President Obama, and confirmed by the Senate 94-0.  I know her from our days together on the Attorney General's Advisory Committee on the Sentencing Guidelines.  Coincidentally, she was, like me, a long-serving Assistant US Attorney and head of her Office's appellate division.  She was brilliant, fair-minded, and a joy to work with.  Our country could do no better.

Her bio is here.

P.S.  Julie is a Democrat.  She would be the first woman FBI Director.  That, I suppose, is relevant to some people, but is thoroughly irrelevant to me.

Ten Federal Court Nominees

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Debra Cassens Weiss reports for the ABA Journal:

President Donald Trump nominated 10 lawyers Monday for federal judgeships, including two state judges from his list of 21 potential U.S. Supreme Court nominees.
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The two judges from the Supreme Court list are Michigan Supreme Court Justice Joan Larsen, nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals, and Justice David Stras of the Minnesota Supreme Court, nominated to the St. Louis-based 8th U.S. Circuit Court of Appeals.

Larsen is a former University of Michigan law professor and a former law clerk to late Justice Antonin Scalia. Stras is a former University of Minnesota law professor and a former law clerk to Justice Clarence Thomas.

The nomination of another judge from the Supreme Court list, U.S. District Judge Amul Thapar of Kentucky, is pending. He has been nominated to the Cincinnati-based 6th U.S. Circuit Court of Appeals. His is the only other nomination to the lower federal courts so far.

Other nominees are:
From Michael Ramirez:


Gorsuch Confirmed

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The Senate this morning voted to confirm Judge Neil Gorsuch to the Supreme Court to fill the seat left open by Justice Scalia's death 14 months ago.  All the Republicans and three Democrats (Manchin, Heitkamp and Donnelly) voted for confirmation, with one Republican absent due to illness.

Democrats sharply criticized their Republican colleagues for refusing to seat Judge Merrick Garland, a man well qualified by traditional criteria but who would have swung to the left what had been, for the most part, an ideologically balanced Court. Yet those same Democrats voted to refuse to seat Neil Gorsuch, whose qualifications were at least as good as Garland's, and who is likely to restore the balance that had been there for years with Justice Scalia.  They will then complain about how it was only Gorsuch's backers who were political hacks.

Senate Eliminates SCOTUS Filibuster

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By a straight party line vote, the Senate has eliminated the filibuster for SCOTUS nominees, who can now be confirmed with a simple majority.  Judge Gorsuch will therefore be confirmed tomorrow at about 7 pm and, I am told, will be sworn in as a Justice of the Supreme Court about an hour later.  I believe the confirmation vote will be somewhere from 52-48 to 55-45, depending on the decisions of Sens. Manchin (WVA), Heitkamp (ND), and Donnelly (IND).  All are Democrats from states that voted overwhelmingly for Trump.

There are reasons to regret that it came to this, but reasons to applaud it as well. A discussion of these competing reasons would be worthwhile, but I will not undertake it here, because, for one thing, it's moot.

Democratic intransigence left Sen. McConnell no choice.  McConnell is actually a traditionalist, and in other circumstances would have been more reluctant to end the SCOTUS filibuster.  But Sen. Schumer made it clear that any nominee who did not genuflect before the race-huckstering, grievance-mongering anthem that has become modern liberalism would never get confirmed under the old rule.  (I should note here that criminals are increasingly being brought into Righteous Grievance tent).

I do not expect to agree with Justice Gorsuch in every instance any more than I agreed with Justice Scalia in every instance.  But for those looking to maintain fidelity to law and a rules-oriented approach to judging, the about-to-be Justice Gorsuch is good news indeed.

Nuked

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The WSJ has live coverage of the Senate confirmation fight.  Siobhan Hughes posted about 12:30 pm EDT:

The Senate has gone nuclear, throwing out the 60-vote filibuster threshold on Supreme Court nominees. The nomination of Judge Gorsuch can now proceed with just a simple majority of 51 votes.
The final vote is expect tomorrow, Friday.

The Supreme Court's next conference day is Thursday, April 13.  Justice Gorsuch has a stack of reading to do, and Justice Kagan no longer has to answer the door if someone knocks.
The WSJ has this editorial on the looming filibuster of Judge Gorsuch's nomination to the Supreme Court and the likely use of the "nuclear option" by the Republicans.

The WSJ says, "At least 41 Democrats led by Minority Leader Chuck Schumer have also committed to filibuster Judge Gorsuch on the Senate floor, so he will need 60 votes to be confirmed."  Um, I'm pretty sure that if 41 are committed against cloture, there is no possibility of getting 60 votes.  Unless maybe we go back to the 1845 plan of breaking up Texas.

"Mr. Schumer is howling that Republicans stole this Court seat because they didn't give a vote to Merrick Garland last year."  I previously noted that Senator Biden said he was prepared for exactly the same kind of blockade in the last year of President George H.W. Bush's presidency.  But wait, there's more.

This story in Politico from July 27, 2007 reported:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President [George W.] Bush "except in extraordinary circumstances."

Stupid Gets Stupider

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I noted here that a Democratic filibuster of Judge Neil Gorsuch would be stupid. Gorsuch is well qualified ("very well qualified," according to the distinctly non-conservative ABA); he has proven to be independent-minded (perhaps more so than I, strictly as an advocate, would prefer); and he is the least doctrinaire candidate that President Trump can be expected to nominate if, as seems probable, he has at least one more vacancy to fill.

None of this is exactly a secret; indeed, I think it's known all over town. Notwithstanding, the Democrats are now going to go forward with their filibuster.

They will thus unite Republicans while dividing their own party; pave the way for a more conservative Supreme Court than we probably otherwise had coming; paint themselves as dead-end partisan just when they had Mr. Trump in the corner; and possibly open the door to ending the legislative filibuster just as the Republicans, for the first time in years, control both the Senate and the White House.

If any of my students were this stupid, I would recommend pursuing a different career.  Under the present circumstances, however, my recommendation for Sen. Schumer is this:  Keep on keepin' on.  Please!

Democracy Returns to the Senate

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The New York Times has this editorial, with the above title.  The NYT blasts the filibuster as an "undemocratic procedure" and the Senate's "most infuriating rule."  It is "unthinkable," says the Times, that federal judges should be subject to supermajority requirements for confirmation.

But the Constitution gives presidents the right to nominate top officials in their administration and name judges, and it says nothing about the ability of a Senate minority to stop them. (The practice barely existed before the 1970s.) From now on, voters will have to understand that presidents are likely to get their way on nominations if their party controls the Senate.
Wait a minute ... This editorial is from 2013.

Never mind.

Filibuster Folly

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The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 

Democrats Retake Mantle of Stupid Party

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No sooner had Republicans re-asserted their long command of the moniker "Stupid Party"  --  this time by failing to round up the votes to pass an Obamacare replacement before they loudly unveiled it  --  than the Democrats, in a lightning fast maneuver, re-seized it by announcing hours later that they will filibuster the nomination of Judge Neil Gorsuch to the Supreme Court.

You don't need to think about it for very long to understand that this is actually good news for Gorsuch, and for those who hope for more mainstream conservatives and originalists on the Court  --  but bad news for the country, which will now see the selection of Justices descend further into sheer political backbiting.
Here is some background on a case that Senator Durbin asked Judge Gorsuch about this morning.

The Sixth Amendment guarantees a criminal defendant "the assistance of counsel for his defence."  The Supreme Court has interpreted that right to include the effective assistance of counsel.  However, a judgment cannot be overturned on the ground of ineffective counsel unless, in addition to the lawyer being ineffective, the defendant makes a showing of resulting "prejudice."  The meaning of "prejudice" in various circumstances has been the subject of a lot of cases since the high court established that standard in 1984.

The purpose of the Sixth Amendment is to guarantee a fair trial.  If the defendant does indeed receive a fair trial, can he get the judgment overturned on the theory that a better lawyer would have gotten him a plea bargain?  That idea seems strange, given that there is no right to a plea bargain and that the defendant received the fair trial the Constitution entitles him to.  We took that position in an amicus brief in Lafler v. Cooper, 566 U.S. 156 (2012).  Four justices agreed with us, but five did not.

Judge Gorsuch took the same position as the Lafler dissenters three years earlier in the case of Williams v. Jones, 571 F.3d 1086 (2009).  Williams was a murderer, but there is no discussion of the facts in the opinion.  Judge Gorsuch's dissent says, "The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome."

I think he was right.  In any case, this opinion is well within the mainstream, as indicated by the 5-4 split in the Supreme Court.

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