Af­ter Gor­such, Trump to be­gin fill­ing 120 va­can­cies

Cruz pushes for judges like Scalia, Thomas

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

With Judge Neil Gor­such con­firmed to the Supreme Court, Pres­i­dent Trump will now turn his at­ten­tion to the more than 120 va­can­cies in the rest of the fed­eral ju­di­ciary, giv­ing him an un­par­al­leled chance to shape the Amer­i­can le­gal sys­tem.

Nineteen of those va­can­cies are at the ap­peals court level, where judges have an ex­tra­or­di­nary abil­ity to af­fect the con­tours of the law and de­cide which is­sues reach the Supreme Court. And more than 90 open­ings await Mr. Trump’s de­ci­sion in dis­trict courts.

Pres­i­dent Obama, by con­trast, had just 44 dis­trict court va­can­cies and 13 ap­pel­late va­can­cies when he took of­fice in 2009.

Con­ser­va­tives are urg­ing Mr. Trump to take the op­por­tu­nity se­ri­ously, and Sen. Ted Cruz has called on the pres­i­dent to field an “army of young, prin­ci­pled con­sti­tu­tion­al­ists” to fill the open­ings — “a gen­er­a­tion of 30-some­thing and 40-some­thing Scalias and Thomases.”

“We need judges who are faith­ful to the Con­sti­tu­tion, who will ap­ply the law as it is writ­ten rather than leg­is­lat­ing from the bench and who demon­strate ju­di­cial hu­mil­ity so that

they will not try to im­pose their own pol­icy pref­er­ences on the de­ci­sions of the demo­crat­i­cally elected branches of gov­ern­ment,” Mr. Cruz told The Wash­ing­ton Times.

The White House de­clined to com­ment on the record, but sen­a­tors, who have the duty to vote on the ju­di­cial picks, said they’re see­ing signs Mr. Trump’s team is ramp­ing up its ef­forts.

Last month the pres­i­dent made his first pick, tap­ping U.S. Dis­trict Judge Amul Tha­par, who sits in Ken­tucky, to a seat on the 6th U.S. Cir­cuit Court of Ap­peals.

The pick ap­pears to be sit­ting well with con­ser­va­tives.

“He’s a very solid in­tel­lec­tual and also [has a] re­li­ably con­ser­va­tive ju­di­cial phi­los­o­phy,” said Curt Levey, pres­i­dent at the Com­mit­tee for Jus­tice.

Carl To­bias, a law pro­fes­sor at the Univer­sity of Rich­mond School of Law, thinks it’s un­likely Mr. Trump will fill all of the va­can­cies by next year.

“I think there’s go­ing to be a huge gold rush be­cause peo­ple want to have their [choices] nom­i­nated first, and it just takes time,” Mr. To­bias said of the sen­a­tors giv­ing their in­put to the White House.

He said that the nom­i­nees go through an FBI check and an eval­u­a­tion by the Amer­i­can Bar As­so­ci­a­tion (ABA).

Demo­cratic pres­i­dents have tra­di­tion­ally given more weight to the bar as­so­ci­a­tion’s rat­ing than Repub­li­can pres­i­dents — though in the case of Judge Gor­such, Mr. Trump’s Supreme Court pick, Democrats brushed aside his stel­lar rat­ing in vot­ing against him.

Mr. Cruz’s hope of an army of con­ser­va­tive judges could founder on the shoals of Se­nate tra­di­tion, where law­mak­ers are given an un­usual amount of in­put on the nom­i­na­tions.

One hur­dle is the “blue slip” process, where sen­a­tors are asked to re­view ju­di­cial nom­i­nees who are slated to take seats in their home states. If both sen­a­tors from the state don’t re­turn their blue slips, the nom­i­na­tion is usu­ally put on hold.

Ju­di­ciary Chair­man Chuck Grass­ley, Iowa Repub­li­can, told re­porters Fri­day that although “there’s been some ex­cep­tion to the blue slip rule,” he gen­er­ally in­tends to fol­low the tra­di­tion for Mr. Trump’s nom­i­nees.

Although a pres­i­dent isn’t legally ob­li­gated to seek ad­vice from sen­a­tors about his fed­eral ju­di­cial nom­i­na­tions, more than a dozen sen­a­tors told The Times that they’ve been in com­mu­ni­ca­tion with the White House and are cur­rently work­ing to fill open­ings in their states.

“The de­gree of con­sul­ta­tion, frankly, varies from se­na­tor to se­na­tor, from po­si­tion to po­si­tion,” Mr. Levey said. “There’s more def­er­ence on dis­trict court nom­i­na­tions than there would be on ap­peals court nom­i­na­tions.”

In Texas, Sen. John Cornyn and Mr. Cruz es­tab­lished a bi­par­ti­san panel of lead­ing at­tor­neys in their state to iden­tify qual­i­fied can­di­dates for the sen­a­tors’ re­view.

Sen. Christo­pher A. Coons, Delaware Demo­crat, said he has had a “very con­struc­tive con­ver­sa­tion about the path for­ward” with the ad­min­is­tra­tion about fill­ing the one dis­trict court open­ing in his home state.

Sen. Cory Gard­ner, Colorado Repub­li­can, said they’ve been “proac­tively com­mu­ni­cat­ing” about Colorado’s va­cancy.

“We’re very close to send­ing them over our list for the dis­trict court,” said Mr. Gard­ner.

Mr. Levey said Mr. Trump is on sched­ule for pick­ing ju­di­cial nom­i­nees.

He said Pres­i­dent George W. Bush an­nounced his first 11 nom­i­nees in May dur­ing his first year. Pres­i­dent Obama made his first ju­di­cial nom­i­na­tion — for only one judge — in March of his first year.

Mr. Levey said he ex­pects the White House to an­nounce more about the va­can­cies af­ter Judge Gor­such is sworn in Mon­day.

“Had you asked me to pre­dict, I would have said they would have given it very lit­tle thought by now, and yet in­stead, they do seem to be work­ing a lot on it, from every­thing I hear,” said Mr. Levey. “I’ve been pleas­antly sur­prised.”


PRECE­DENT: With Neil Gor­such con­firmed to the Supreme Court on Fri­day, Pres­i­dent Trump now turns his at­ten­tion to over 120 va­can­cies in lower courts.

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