Despite the Senate’s recess, Judiciary Committee chairman Chuck Grassley and his stalwart staff are keeping his committee very busy in reviewing and processing President Trump’s judicial nominees.
On Wednesday, the committee held a hearing on the nomination of Allison Jones Rushing to a Fourth Circuit seat in North Carolina and on five district-court nominations. Next Wednesday, it intends to hold a hearing on two Ninth Circuit nominations—Eric Miller (in Washington) and Bridget Bade (in Arizona) and one district-court nomination. The committee aims to report these nominations to the Senate floor by late November.
On Wednesday, November 14, the committee intends to hold a hearing on Third Circuit/New Jersey nominee Paul Matey and four district-court nominees. The committee aims to report these nominations to the Senate floor in early December.
Already pending on the Senate floor are one appellate nomination (Jonathan Kobes, CA8/South Dakota) and 31 district-court nominations. Two other appellate nominees—Eric Murphy and Chad Readler, each to a CA6 seat in Ohio—are awaiting their committee votes, as are nine district-court nominees.
So that’s a total of seven appellate nominees and 50 district-court nominees who should be ready for a Senate floor vote in December.
If these nominees are all confirmed, that will take President Trump’s two-year total to 36 federal appellate judges and 104 federal district judges—plus, of course, Justice Gorsuch and Justice Kavanaugh.
By way of comparison: President Obama appointed 16 federal appellate judges and 44 federal district judges—plus Justice Sotomayor and Justice Kagan—during his first two years.
Supreme Court Justice Antonin Scalia died unexpectedly in February 2016, and President Barack Obama nominated Judge Merrick Garland to that vacancy on March 16, 2016. The Left had a single mantra for the Senate: Do your job. Specifically, they demanded that the confirmation process move forward, starting with a Judiciary Committee hearing.
They have changed their tune.
There’s no need to cover here all the reasons why the unique circumstances in 2016 justified allowing the next president to fill the Scalia vacancy. Republicans in 2016 were merely following Joe Biden’s advice. In 1992, when he chaired the Judiciary Committee, he recommended that the Senate not consider a Supreme Court nominee in the middle of a divisive presidential campaign.
In 2016, Democrats demanded that the Judiciary Committee hold a confirmation hearing on a Democratic nominee despite those unique circumstances. Today, Democrats object to the Judiciary Committee holding confirmation hearings even though those circumstances do not exist.
Keep in mind that 120 positions on life-tenured federal courts across the country remain vacant. In fact, we are in the longest sustained period of triple-digit judicial vacancies in 25 years. Today’s situation is far less defensible, however. The high number of vacancies in the early 1990s was caused by Congress creating dozens of new judgeships. High vacancies today result simply from Democratic obstruction.
But despite these high current vacancies, Democrats are trying to prevent the Judiciary Committee from holding the hearings that, only two years ago, they said defined what it meant to “do your job.”
The committee was scheduled to hold regular confirmation hearings on September 26 and October 10 for nominees to the U.S. Court of Appeals and U.S. District Court. Senator Dianne Feinstein (D., Calif.), the committee’s top Democrat, first agreed to that schedule but then asked for multiple postponements. She then agreed to hold hearings on October 10, 17, and 24.
Now, Judiciary Committee Democrats are demanding that these hearings be put off yet again. Their latest “reason” is that the full Senate is not in regular session until after the election. Yet Feinstein agreed to these October hearings knowing that the Senate would likely be in recess for at least some of this period.
This is not the first time that Democrats have done this. The previous complaint was that Judiciary Committee chairman Chuck Grassley (R., Iowa) sometimes includes more than one appeals-court nominee in a single hearing. They had to be reminded that chairmen of both parties, under presidents of both parties, have held more than 50 hearings with multiple appeals-court nominees. Chairmen Biden and Orrin Hatch (R., Utah), for example, held more than a dozen such hearings for President Bill Clinton’s appeals court nominees while Feinstein served on the committee. There’s no record that she had any objection to doing for Democratic nominees what she objects to doing for Republican nominees today.
With vacancies so high, Judiciary Committee Democrats should stop playing games, take their own advice, and do their job.
In today’s Washington Post, Georgetown University law professor Paul Butler takes Justice Ruth Bader Ginsburg to task for her notoriously poor law clerk hiring record. Despite her status as a progressive icon, the Notorious RBG has anything-but a progressive record when it comes to the diversity of her law clerks. As Butler notes, “Ginsburg’s progressive jurisprudence on racial justice doesn’t show up in her own chambers.”
Interestingly enough, Justice Ginsburg’s newest colleague, Justice Brett Kavanaugh, has the most diverse law clerk hiring record of any justice, ever. Butler writes:
Kavanaugh has engaged in one of the most diverse hiring practices of any federal appellate judge. Of his 48 law clerks, a little more than 25 percent have been nonwhite. And as a justice, he has already hired one African American clerk. She is one of only three blacks clerking on the Supreme Court this year — two of whom previously clerked for Kavanaugh on the Court of Appeals. . . .
Ginsburg, on the other hand, has hired only one African American law clerk in her 25 years on the Supreme Court. This is an improvement from her 13-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, when Ginsburg never had any black clerks. When this issue was raised during her Supreme Court confirmation hearings in 1993, Ginsburg said: “If you confirm me for this job, my attractiveness to black candidates is going to improve.” This remains a promise unfulfilled. . . .
Kavanaugh’s clerkship listing should state “This employer practices diversity affirmative action. People of color strongly encouraged.” Ginsburg’s might as well say “I support racial diversity everywhere except in my chambers.”
Professor Butler is critical of Kavanaugh as well, suggesting that if Kavanaugh recognizes the value of diversity in his own hiring practices, he should be more supportive of affirmative action requirements and racial set-aside laws. Yet not every virtue should be a requirement, and there’s nothing hypocritical about refusing to force others to follow your lead. The same cannot be said about failing to live up to the standards you would impose upon others.
One of a president’s most profound and lasting legacies is his appointment of federal judges. Supreme Court vacancies capture the most attention but are very rare, and the Supreme Court considers hears less than 1 percent of the appeals it receives. The ongoing appointment of judges to the other federal courts can actually have the biggest impact.
The Constitution established the Supreme Court, and Congress created the rest of the courts. Today, the U.S. District Courts, U.S. Courts of Appeals, and U.S. Supreme Court have a total of 851 judgeships in jurisdictions around the country. Vacancies on these courts, however, are all filled the same way: The president makes nominations but can appoint someone he has nominated only with the Senate’s consent.
The number of vacancies, and therefore the number of appointment opportunities, can be unpredictable because judges on these courts do not have specific terms. The vast majority of vacancies occur when judges choose to retire from active judicial service or are appointed to a different judicial position.
A president’s success in filling judicial vacancies depends on his determination to make nominations and the Senate’s progress in approving them. When President Trump took office, 14.3 percent of the positions on these life-tenured courts were vacant, much higher than under any of the previous five presidents. In his first 18 months in office, Trump’s nomination pace and the Senate Judiciary Committee’s hearing pace were each more than 40 percent faster than the average under those five predecessors during the same period in their presidencies.
Unfortunately, however, final approval of Trump’s judicial nominees during his first 18 months lagged 25 percent behind the pace of his predecessors. Democrats have forced the Senate to take unnecessary separate votes for ending debate on nominees, demanded extensive time to “debate” nominees who had no opposition, and insisted on time-consuming recorded votes to approve nominations. Separately, and especially in combination, seemingly insignificant steps such as these can add days to the confirmation timeline for each nomination.
But things are looking up in a couple of different ways. First, the overall confirmation pace has markedly improved in the last few months. The three-month total of 39 confirmations during August-October was exceeded only five times since 1949. As their arbitrary and unprecedented obstruction tactics have been exposed, Democrats have used them less. As a result, Trump is now slightly ahead of the average confirmation pace of his five predecessors at the same point in their presidencies.
Second, the decision by Trump and Senate Republican leaders to prioritize filling vacancies on the U.S. Courts of Appeals is working. Trump has already appointed more appeals-court judges than any new president in history, with at least a few more expected by the end of the year.
When the Senate reconvenes after the election, we will know what the partisan landscape will look like in the 116th Congress, which begins on January 3. There will still be work to do, however, because 32 judicial nominees are on the full Senate’s docket, and another 22 are ready for Judiciary Committee hearings or approval. That would make Trump’s first two years a real judicial confirmation triumph.
It has been less than a week since my last update, but a lot has changed since then.
On Thursday, the Senate voted to confirm 15 new federal judges. The tranche included three circuit court judges: Richard Sullivan (Second), David Porter (Third), and Ryan Nelson (Ninth). With the confirmations of these new judges, a total of 29 of President Trump’s circuit court nominees have been confirmed since Inauguration Day.
Last Wednesday evening, President Trump announced his 18th wave of judicial nominees, which included nominees to the Second and Ninth Circuits. (I detailed the bios of those new circuit court nominees in a Bench Memos post earlier this week.)
Also on Thursday, the Senate Judiciary Committee voted to advance eight judicial nominees to the Senate floor, including Jonathan Kobes, President Trump’s nominee to the Eighth Circuit.
Here is an update on the status of President Trump’s federal judicial nominations. The figures below include last week’s new wave of nominations:
Current and known future vacancies: 154
Courts of Appeals: 15
District/Specialty Courts*: 139
Pending nominees for current and known future vacancies: 72
Courts of Appeals: 12
District/Specialty Courts*: 60
* Includes the Court of Federal Claims and the International Trade Court
Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings
Both Blue Slips Returned?
Judiciary Committee Hearing Date
Paul Matey (3rd)
Not yet scheduled
Eric Miller (9th)
Not yet scheduled
Bridget Shelton Bade (9th)
Not yet scheduled
Allison Jones Rushing (4th)
Not yet scheduled
Joseph Bianco (2nd)
Not yet scheduled
Michael Park (2nd)
Not yet scheduled
Patrick Bumatay (9th)
Not yet scheduled
Dan Collins (9th)
Not yet scheduled
Ken Lee (9th)
Not yet scheduled
Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes
Judiciary Committee Hearing Date
Eric Murphy (6th)
Chad Readler (6th)
Court of Appeals Nominees Awaiting Senate Floor Votes
1956—So much for basing Supreme Court selections on short-term political calculations.
Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.
That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.
2014—By a vote of 9 to 2, a limited en banc panel of the Ninth Circuit rules (in Lopez-Valenzuela v. Arpaio) that an Arizona law that bars pretrial release of an illegal alien charged with a serious felony offense violates substantive due process.
Dissenting months later from the Supreme Court’s refusal to review the ruling, Justice Thomas, joined by Justice Scalia, will lament that the Court fails to exercise its certiorari discretion “with a strong dose of respect for state laws” and that “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”
1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.
In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”
On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.
Yesterday Senate majority leader Mitch McConnell and minority leader Chuck Schumer struck a deal in which Senate Democrats agreed to allow confirmation votes on 15 pending judicial nominees in exchange for an early recess in advance of November’s elections.
All 15 judicial nominees were confirmed yesterday. The group includes three federal appellate nominees—David Porter (CA3/PA), Ryan Nelson (CA9/ID), and Richard Sullivan (CA2/NY)—and twelve district-court nominees (William Ray, Liles Burke, Michael Juneau, Mark Norris, Eli Richardson, Thomas Kleeh, Peter Phipps, Susan Brnovich, Chad Kenney, Jeremy Kernodle, Lance Walker, and James Hanlon).
That takes President Trump’s total federal judicial appointments to 84—two Supreme Court justices, 29 federal appellate judges, and 53 federal district judges.
Even better: The Senate isn’t close to being done yet for the year. Senate Judiciary Committee chairman Chuck Grassley stated yesterday that he expects the Senate to confirm all the judicial nominations that remain on the Senate floor, plus any other nominations that the committee processes before the end of the year.
There are 32 judicial nominations pending on the Senate floor (one appellate and 31 district), and there are seven judicial nominations (two appellate and five district) ready to be reported out of committee. In addition, there are 14 more judicial nominations (four appellate and ten district) on which a committee hearing has been expected to occur by mid-November.
If all of these nominations are confirmed by year-end, that would take President Trump’s total to 137—two Supreme Court justices, 36 federal appellate judges, and 99 federal district judges.
For sake of comparison: President Obama’s total during his first two years was 62—two Supreme Court justices, 16 federal appellate judges, and 44 federal district judges.
President Trump, Senator McConnell, and Senator Grassley deserve huge congratulations.
Whether this tremendous progress continues over the next two years or instead comes to a screeching halt depends on whether or not Republicans retain control of the Senate going into the next Congress.
1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.
Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:
When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.
But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.
Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”
This evening, President Trump announced his 18th wave of judicial nominees, including two nominees to the U.S. Court of Appeals for the Second Circuit and three nominees to the U.S. Court of Appeals for the Ninth Circuit. With this announcement, only a handful of federal court of appeals vacancies lacking named nominees remain.
Filling these instrumental federal judicial appointments is a significant accomplishment by the President, as well as Senator Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley.
And the President continues his trend of making outstanding nominations to the courts of appeal. The nominees announced today will bring significant experience and desperately needed philosophical diversity to the Second and Ninth Circuits.
Below are links to bios of the five new appellate court nominees announced today.
Judge Joseph Bianco is President Trump’s nominee to the U.S. Court of Appeals for the Second Circuit from New York.
Current Position: U.S. District Judge, Eastern District of New York (New York, NY)
B.A., Georgetown University; magna cum laude (1988)
J.D., Columbia Law School; Kent Scholar (outstanding academic achievement); Editor, Columbia Law Review (1991)
Judicial Clerkships: Judge Peter K. Leisure, U.S. District Court for the Eastern District of New York (1992-1993)
1991-1992, 1993-1994: Associate, Simpson Thatcher LLP (New York, NY)
1994-2003: Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of New York (New York, NY)
2003-2004: Counsel, Debevoise & Plimpton LLP (New York, NY)
2004-2006: Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice (Washington, D.C.)
2006-Present: U.S. District Judge, Eastern District of New York (New York, NY)
President George W. Bush nominated Bianco to be a U.S. District Judge in 2005, and he was confirmed by voice vote on January 3, 2006.
As a political appointee in President George W. Bush’s Department of Justice, Bianco supervised the Counterterrorism Section, the Fraud Section, the Appellate Section, and the Capital Case Unit.
Judge Bianco has taught courses at St. John’s University School of Law, Hofstra University School of Law, and Touro Law Center on topics including Counterterrorism Law, Sentencing, and Criminal Procedure.
Judge Bianco is a frequent speaker and panelist at Federalist Society events on topics including Federalism and Separation of Powers, National Security Law, Government Enforcement and the Financial Sector.
Judge Bianco is a native of Flushing, New York and is an ordained Deacon in the Roman Catholic Church. He and his wife have six children.
Michael Park is President Trump’s nominee to the U.S. Court of Appeals for the Second Circuit from New York.
Current Position: Partner, Consovoy, McCarthy & Park LLP
B.A., Princeton University, magna cum laude (1998)
J.D., Yale Law School (2001); Managing Editor, Yale Law Journal
Judicial Clerkships: Judge Samuel Alito, U.S. Court of Appeals for the Third Circuit (2001-2002); Associate Justice Samuel Alito, U.S. Supreme Court (2008-2009)
2002-2006: Associate, WilmerHale LLP (New York, NY)
2006-2008: Attorney Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)
2009-2015: Partner, Dechert LLP (New York, NY)
2015-Present: Partner, Consovoy, McCarthy & Park LLP (New York, NY)
In private practice, Mr. Park has represented clients before the SEC, FINRA, and other federal and state regulators in a wide array of subject areas, including securities, criminal, commercial, administrative, and constitutional law.
While serving in the Office of Legal Counsel at the Department of Justice, Mr. Park advised White House and other Executive Branch officials on a variety of complex matters, including national security issues, constitutional questions, and congressional investigations.
Park is an adjunct professor at the Antonin Scalia Law School at George Mason University.
Park is a member of the Board of Trustees of the Supreme Court Historical Society, the Board of Directors of Operation Exodus Inner City, and the Asian American Bar Association of New York.
Park is listed as an expert for The Federalist Society.
Park is a recipient of the National Asian Pacific American Bar Association’s “2013 Best Lawyers Under 40” award recognizing attorneys who have demonstrated prominence in the practice of law and dedication to the Asian Pacific American community.
Patrick Bumatay is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from California.
Age: 40 (approximate)
Current Position: Mr. Bumatay is currently detailed from the U.S. Attorney’s Office for the Southern District of California in San Diego to the Office of the Attorney General, U.S. Department of Justice (Washington, D.C.).
B.A., Yale University; cum laude (2000); Phi Beta Kappa
J.D., Harvard Law School (2006), Articles Editor, Harvard Journal of Law & Public Policy (a leading law journal for conservative and libertarian legal scholarship)
Judicial Clerkship: Judge Timothy M. Tymkovich, U.S. Court of Appeals for the Tenth Circuit (2000-2001); Judge Sandra Townes, U.S. District Court for the Eastern District of New York (2009-2010)
February 2018-Present: Counselor to the Attorney General, Office of the Attorney General, U.S. Department of Justice (Washington, D.C.)
May 2017-February 2018: Senior Counsel to the Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
February 2017-April 2017; 2007-2008: Counsel, Office of Legal Policy, U.S. Department of Justice (Washington, D.C.)
2012-Present: Assistant U.S. Attorney, U.S. Attorney’s Office for the Southern District of California (San Diego, CA)
2010-2012: Associate, Morvillo Abramowitz Grand Iason Anello & Bohrer, P.C.(New York, NY)
2008-2009: Counsel, Associate Attorney General, Office of the Associate Attorney General, U.S. Department of Justice (Washington, D.C.)
As a federal prosecutor in the criminal enterprises and narcotics sections of the U.S. Attorney’s Office in San Diego, Mr. Bumatay has participated as lead counsel or second chair in nine bench and jury trials. He has also argued before Ninth Circuit Court of Appeals.
In the Attorney General’s Office, Mr. Bumatay advises the Attorney General on criminal matters, national opioid strategy, transnational organized crime, and prison and reentry policies.
Bumatay has worked on the confirmations of Chief Justice John Roberts, Justice Samuel Alito, Justice Neil Gorsuch, and Attorney General Michael Mukasey.
In private practice, Mr. Bumatay represented clients in criminal, regulatory, and civil matters involving allegations of market manipulation, credit ratings fraud, procurement fraud, collateralized debt obligation fraud, mortgage-backed securities fraud, insider trading, and obstruction of justice.
Bumatay is an active member of The Federalist Society. He is also a member of the Federal Bar Association, the National Asian Pacific American Bar Association, and the National Asian Pacific Islander Prosecutors Association
2001-2003: Associate Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice (Washington, D.C.)
1992-1996: Assistant U.S. Attorney, U.S. Attorney’s Office for the Central District of California (Los Angeles, CA)
1989-1991: Attorney-Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)
Collins’ practice at Munger, Tolles & Olson focuses on appellate and complex commercial litigation. Over the course of his career, he has argued 36 cases in the Ninth Circuit, including two before the en banc court, and four cases in the California Supreme Court. Mr. Collins has also argued before the International Court of Justice in The Hague.
In 2008, Mr. Collins obtained a complete reversal of the largest civil judgment in U.S. history (more than $603 million).
While serving in the Deputy Attorney General’s office, Mr. Collins coordinated the DOJ’s efforts on several major legislative and policy initiatives and testified multiple times before the House and Senate Judiciary Committees.
As a federal prosecutor in Los Angeles, Mr. Collins prosecuted more than 60 criminal cases, including eight jury trials. Collins was a member of the criminal appeals section, where he supervised the preparation of more than 100 appellate briefs and argued numerous cases before the Ninth Circuit.
Collins has been recognized nationwide and in California as a leading appellate lawyer by Chambers USA.
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My daddy always said he ...
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