The Atlanta Journal-Constitution

City's federal court has Trump stamp

President moving to fill appeals benches with conservati­ve judges.

- Judges continued on A14 By Bill Rankin brankin@ajc.com

President Donald Trump’s plan to quickly reshape the nation’s federal appeals courts has taken hold in Atlanta, with the infusion of two conservati­ve jurists and

another one on the way. Trump’s imprint on the 11th U.S. Circuit Court of Appeals all but guarantees it will remain one of the nation’s more conservati­ve courts for years to come. The 11th Circuit, which presides over Georgia, Alabama and Florida, often takes on some of the most hotly contested issues of the day: abortion, police brutality, gun control, immigratio­n, the death penalty, gay rights,

and discrimina­tion and harassment in the workplace.

The country’s focus on the judiciary is now fixed on the U.S. Supreme Court, with Trump set to announce Monday his nominee to replace outgoing Justice Anthony Kennedy.

“But it’s often overlooked that 99-plus percent of all cases are decided by the lower courts,” said Carrie Severino, chief counsel and policy director of the conservati­ve Judicial Crisis Network. “So it’s important that the president is nominating judges who are fair, who are interpreti­ng the laws as they’re written and not substituti­ng their own policy preference­s. And, of course, judges who are faithful to the Constituti­on as it’s written. It’s been very encouragin­g.”

Trump and Senate Majority Leader Mitch McConnell, R-Ky., have made packing the courts with conservati­ve judges a top priority. During 2017, the Senate confifirme­d 12 of Trump’s appeals court judges, a record for any president’s fifirst year in offiffice.

“They’re trying to remake the courts for generation­s, if they can,” University of Richmond law professor Carl Tobias, who closely tracks judicial nomination­s, said. “So far, they’re well on their way.”

Trump has filled two vacancies on the 11th Circuit with former Georgia Court of Appeals Judge Elizabeth Branch and former Alabama Solicitor General Kevin Newsom. Both are expected to cast reliably conservati­ve votes on the court.

Trump’s third nominee, Georgia Supreme Court Justice Britt Grant, was expected to be a slam-dunk confirmati­on in the full Senate. But Arizona Republican Jeff Flake is holding up her confirmati­on in protest of the administra­tion’s imposition of tariffs on U.S. allies. Both Grant and Newsom are on Trump’s short list for the U.S. Supreme Court.

Flake has said he does not oppose Grant because of her qualificat­ions, which indicates it’s only a matter of time before she’s confifirme­d.

The 40-year-old Grant, an Atlanta native who attended Westminste­r Schools, has impressive conservati­ve credential­s. After college, she worked for President George W. Bush, serving in a number of domestic policy positions. During law school, she was president of Stanford University’s Federalist Society.

Grant’s nomination has been opposed by civil rights and anti-abortion groups. But she sailed through her confirmati­on hearing before the Senate Judiciary Committee in May without controvers­y.

Of the 13 federal appeals courts, the 11th Circuit is the second or third most conservati­ve in the country, said Tobias, the Richmond law professor. “And now, Trump is replacing conservati­ve judges on the 11th Circuit with even more conser

vative judges.”

Last year, for example, the 11th Circuit ruled that

Title VII of the Civil Rights Act of 1964 does not prohibit employers from discrimina­ting against workers because they are lesbian or gay. But the federal appeals courts in Chicago and New York later issued contrary opinions, ruling that federal law forbids workplace discrimina­tion based on someone’s sexual orientatio­n.

The 11th Circuit has also made it extremely diffifficu­lt for plaintiffs to prevail in hostile work environmen­t claims. Following 11th Circuit precedent, lower court judges dismiss most sexual harassment claims before

they go to trial.

“As pro-business as the 11th Circuit is, sexual harassment cases are on life support,” Atlanta lawyer Lee Parks said. “It’s like the fifirst feel is free, unless it’s something almost as bad as rape. A lot — and I mean a lot — has to

happen to make a successful sexual harassment claim in the 11th Circuit.”

If Hillary Clinton had been elected president, her nominees might have led to the 11th Circuit becoming more liberal-minded for the fifirst time in decades.

Trump has been able to put two judges — instead of just one — on the 11th Circuit because of a strategy successful­ly employed by Senate Republican­s at the end of President Barack Obama’s term. Just as they refused to vote on Merrick Garland, Obama’s nominee for the U.S. Supreme Court, Senate Republican­s also declined to vote on Abdul Kallon, Obama’s pick for a seat on the 11th Circuit. If confifirme­d, Kallon, a federal judge in Birmingham, would have been the fifirst African-American from Alabama to sit on the Atlanta appeals court.

After Kallon’s nomination died on the vine, the newly elected Trump nominated Newsom to fifill the vacancy.

The Senate quickly approved him with a 66-31 vote.

Newsom initially surprised conservati­ves by joining a unanimous three-judge panel

that found the Tuscaloosa Police Department should have made more accommodat­ions for a breastfeed­ing offifficer on its force. The 11th Circuit’s ruling said employees who are breastfeed­ing are protected under a federal law that prohibits sex discrimina­tion in the workplace.

In May, however, Newsom made his mark as a conservati­ve jurist in a case involving allegedly squalid conditions at the Brevard County, Fla., jail.

The suit was filed by inmate Oberist Saunders, who contended the jail’s mental health unit was stifling hot with little or no air circulatio­n. Saunders said he and fellow inmates had to walk barefoot through human feces and urine and sleep on soiled mats placed on the filthy floor, the suit said. It contended jail officials were deliberate­ly indifferen­t to inhumane conditions.

In a 2-1 decision, Newsom and Judge Stanley Marcus wrote, “We do not doubt that such tight quarters may cause discomfort,” particular­ly given the close proximity of the cell’s toilet to the beds. “But for better or worse, comfort is not the Constituti­on’s test.”

The judges ultimately found that the jail offifficia­ls were immune from liability and added they took“no par- ticular pleasure” in throwing out Sanders’ case.

Judge Beverly Martin, perhaps the 11th Circuit’s most liberal member, dissented and called the jail’s conditions “flagrantly” unconstitu­tional. “Our Constituti­on does not turn a blind eye to these types of conditions, and neither should we,” she wrote.

Nan Aron, president of Alliance for Justice, a liberal judicial advocacy group, expressed concern about Trump’s appointmen­ts on the Atlanta appeals court. “(He) is nominating individual­s who have troubling records on issues ranging from workers’ rights, to women’s rights, to being on the side of big corporatio­ns rather than consumers and everyday people,” she said. “(This) will pose a threat to people who rely on the courts for help when they are harmed or facing injustice.”

Curt Levey, president of the conservati­ve Committee for Justice, praised Trump’s appointmen­ts on the 11th Circuit.

“It’s a circuit that Republican­s have to have,” Levey said. “I feel very good about how it’s gone so far.”

 ??  ?? Georgia Supreme Court Judge Britt Grant (left) and Alabama Solicitor General Kevin Newsom were named to the 11th U.S. Circuit Court of Appeals.
Georgia Supreme Court Judge Britt Grant (left) and Alabama Solicitor General Kevin Newsom were named to the 11th U.S. Circuit Court of Appeals.
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 ?? CONTRIBUTE­D ?? Former Georgia Court of Appeals Judge Elizabeth Branchwas appointed by President Trump to the 11th Circuit bench.
CONTRIBUTE­D Former Georgia Court of Appeals Judge Elizabeth Branchwas appointed by President Trump to the 11th Circuit bench.

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