The Atlanta Journal-Constitution
City's federal court has Trump stamp
President moving to fill appeals benches with conservative judges.
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.”