Law & the Courts

Trump Nominates Greg Katsas to the D.C. Circuit

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This is a home run for the president.

Conservatives who voted for Donald Trump based on his promises to restore the integrity of the judiciary had a point. If there was one compelling reason to support Trump, even for those who harbored serious concerns about his readiness for office, it was that a loss in the 2016 election would render the judicial branch of the federal government a taxpayer-funded subsidiary of the Democratic party for a generation or more. Where Hillary Clinton had her litmus tests, Trump promised to appoint judges who understood the limited role of federal judges in our constitutional system, who respected the text of the Constitution and federal statutes, and who would not let their personal policy preferences dictate the results of the cases before them.

Many conservatives voted for Trump in the hope that he would keep those promises, and in the first eight months of his administration, he has. Along with a sustained rollback of Obama-era regulations, Trump’s judicial appointments — with Justice Neil Gorsuch as the centerpiece — have been key successes for an often-troubled administration. Just this week, the Senate Judiciary Committee held hearings on two tremendously qualified nominees to courts of appeals in the Midwest: Michigan supreme-court justice and former University of Michigan law professor Joan Larsen, and Notre Dame law professor Amy Barrett. Both are former clerks to Justice Antonin Scalia who will prove to be judicial conservatives. Larsen and Barrett are both names to remember, as both are likely to be short-listers for a future Supreme Court vacancy.

Trump continued his promising run today with the nomination of my friend and former colleague Gregory Katsas to fill the vacancy on the U.S. Court of Appeals for the District of Columbia Circuit left by the retirement of Bush appointee Janice Rogers Brown. Katsas, who currently serves as deputy White House counsel, has a legal résumé that would be difficult to match. An executive editor of the Harvard Law Review during his law-school years, Katsas clerked on the Third Circuit and D.C. Circuit Courts of Appeals. He then followed his then-boss Judge Clarence Thomas to the Supreme Court, clerking for Justice Thomas in his first term on the high court.

Katsas then spent a decade in private practice for a prestigious law firm in Washington, D.C., before joining the Justice Department in the early days of the George W. Bush administration. There, Greg oversaw the appellate section of the Justice Department’s Civil Division, where he argued dozens of the most challenging and important appeals facing the Bush administration — cases involving the defense of the homeland in the aftermath of September 11, challenges to the president’s prosecution of the war on terrorism, and the federal ban on partial-birth abortion, and many more cases involving critical constitutional principles. Katsas served the entire eight years in the Bush administration, eventually being appointed as assistant attorney general in charge of the Civil Division.

In both government and private practice, Katsas has argued cases before the Supreme Court — he was one of the lawyers who argued the landmark challenge to Obamacare in National Federation of Independent Business v. Sebelius — and in every U.S. court of appeals. In all, he has argued more than 75 appeals.

It is hard to imagine a candidate with greater qualifications to serve on the D.C. Circuit, one of the most important courts of appeals in the country owing to its location in the nation’s capital. The court’s docket, while varied, includes key cases regarding the powers and programs of the federal government. Katsas’s vast experience at the highest levels of that government gives him a perspective that would benefit any nominee to that court.

But apart from qualifications, Katsas has a temperament and work ethic that will make him a top-notch judge. Quite simply, nobody worked harder than Katsas at the Justice Department. I certainly didn’t; he was there when I got to work and at his desk when I headed home. Every significant brief filed by the Civil Division in the courts of appeals, and there were a lot of them, bore his stamp. Over the years, I’ve told many a lawyer that there was no one better on the legal briefs — in both writing and legal analysis — than Katsas. And that is no faint praise, given that I have worked with some of the best lawyers of my generation.

A Judge Katsas would have a consistent judicial philosophy, one in line with Trump’s promises.

Most important, a Judge Katsas would have a consistent judicial philosophy, one in line with Trump’s promises. Katsas understands that the courts’ role is a simple one — to decide cases, not to dictate policy. Like Justice Gorsuch, with whom he worked closely at the Department of Justice, Katsas understands the critical role that constitutional and statutory text play in deciding those cases. And he recognizes the importance of the original understanding of the founders in interpreting that text. Judge Katsas will be a welcome addition to a court that was packed by with liberal jurists by President Obama.

A modest, but brilliant and experienced nominee. A Trump home run.


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