Trump likely to move lib­eral court to the right

The Charlotte Observer (Sunday) - - Front Page - BY EMMA DUMAIN AND BRIAN MUR­PHY edu­[email protected]­clatchydc.com bmur­[email protected]­clatchydc.com

Pres­i­dent Don­ald Trump has spent his first 18 months in of­fice re­stock­ing, and re­shap­ing, courts all across the fed­eral ju­di­ciary. Now he has the chance to make his mark on the 4th U.S. Cir­cuit Court of Ap­peals.

Once con­sid­ered one of the most con­ser­va­tive courts in the coun­try, the 4th Cir­cuit was for years viewed as hos­tile to civil rights. It was stacked with judges ap­proved by Se­nate lions Jesse Helms of North Carolina and Strom Thur­mond of South Carolina, right-wing war­riors who wielded heavy in­flu­ence in the se­lec­tion and con­fir­ma­tion process.

But over the past decade, be­cause of six ap­pointees from Pres­i­dent Barack Obama, the 15-mem­ber 4th Cir­cuit — which hears cases in North Carolina, South Carolina, Mary­land, Vir­ginia and West Vir­ginia — has moved de­cid­edly to the left.

It’s be­come a fa­vor­able court for lib­eral causes and a thorn in the side of North Carolina’s con­ser­va­tive leg­is­la­ture in par­tic­u­lar, strik­ing down, among other laws, the state’s voter ID man­date and a re­quire­ment that doc­tors pro­vide ul­tra­sounds to pa­tients who want to have an abor­tion prior to per­form­ing the pro­ce­dure.

Trump has had more judges con­firmed to the fed­eral ap­pel­late courts in his first 18 months than any other pres­i­dent, ac­cord­ing to the Bos­ton Globe, and now he has three va­can­cies to fill on the Rich­mond, Va.based court. Each outgoing 4th Cir­cuit judge has taken, or will soon take, “se­nior sta­tus,” a semi-re­tired sta­tus for those who have met age and ser­vice re­quire­ments but can still hear cases and help meet the needs of the court.

Trump’s picks won’t dra­mat­i­cally shift the court’s ide­ol­ogy overnight: They will be re­plac­ing judges who have con­ser­va­tive or cen­trist rep­u­ta­tions. Ten mem­bers of the court were

THE 4TH U.S. CIR­CUIT COURT OF AP­PEALS, WHICH COV­ERS FIVE STATES IN­CLUD­ING NORTH AND SOUTH CAROLINA, HAS BE­COME A FA­VOR­ABLE COURT FOR LIB­ERAL CAUSES.

picked by Demo­cratic pres­i­dents Obama and Bill Clin­ton, and nine of those are stay­ing on.

Still, the new­com­ers — young and con­ser­va­tive — will have a last­ing legacy, long after Trump leaves of­fice.

“My goal is to make sure we have qual­i­fied con­ser­va­tives on the (4th Cir­cuit) court, and that’s where we’re headed,” said Sen. Lind­sey Gra­ham, R-South Carolina.

Gra­ham, who could be the top Repub­li­can on the Se­nate Ju­di­ciary Com­mit­tee in the next Congress, told McClatchy that Trump could “100 per­cent” re­make the 4th Cir­cuit. Gra­ham added he’s on a mis­sion to help Trump do just that. So, too, is Sen. Thom Til­lis, a North Carolina Repub­li­can and a mem­ber of the ju­di­ciary com­mit­tee.

The court has five judges born in 1947 or ear­lier, open­ing the pos­si­bil­ity that Trump will have more chances to re­shape the court.

“I look for­ward to be­ing a part of that,” Til­lis said.

IF (TRUMP) PICKS THE RIGHT PER­SON, HOPE­FULLY WE’LL HAVE SOME­ONE WHO TAKES A CON­SER­VA­TIVE AP­PROACH TO BE­ING A JUDGE AND WILL BE THERE FOR A WHILE SO THAT THE LONG-TERM PREDICTABI­LITY WILL BE SOME­THING WE CAN COUNT ON. North Carolina Se­nate leader Phil Berger, a Repub­li­can

TRUMP’S PICKS

Trump has nom­i­nated two judges to fill va­can­cies on the 4th Cir­cuit: Julius “Jay” Richard­son and A. Marvin Qu­at­tle­baum, both of South Carolina. They were re­cently ad­vanced by the Se­nate Ju­di­ciary Com­mit­tee, with votes of sup­port from Gra­ham and Til­lis, and now they are among the 11 ap­pel­late judges await­ing con­fir­ma­tion by the full Se­nate.

The Se­nate is ex­pected to give up some of its Au­gust re­cess to address the back­log. Repub­li­cans want to move judges through the sys­tem quickly, fear­ful Democrats could re­take con­trol of the Se­nate after the midterm elec­tions and stymie con­ser­va­tive ef­forts to re­shape the fed­eral bench.

Ma­jor­ity Leader Mitch McCon­nell of Ken­tucky has made con­firm­ing judges his top pri­or­ity in a deeply di­vided Se­nate. Repub­li­cans hold a 51-49 edge, with Sen. John McCain’s long ab­sence ef­fec­tively leav­ing Repub­li­cans with a one-vote ma­jor­ity.

“What I want to do is make a last­ing con­tri­bu­tion to the coun­try, and by ap­point­ing and con­firm­ing these strict con­struc­tion­ists to the courts who are in their late 40s or early 50s, I be­lieve, work­ing in con­junc­tion with the ad­min­is­tra­tion, we’re mak­ing a gen­er­a­tional change in our coun­try that will be re­peated over and over and over down the years,” McCon­nell told talk ra­dio show host Hugh Hewitt in May.

“If I have a choice be­tween tak­ing up a par­tic­u­lar bill or tak­ing up a cir­cuit court judge, I take up a cir­cuit court judge be­cause I think it makes the long­est last­ing con­tri­bu­tion.”

The Se­nate has con­firmed 20 district court judges and one Supreme Court jus­tice, with Trump’s nom­i­na­tion of a sec­ond Supreme Court jus­tice, Brett Ka­vanaugh, pend­ing.

Gra­ham, along with fel­low South Carolina Repub­li­can Sen. Tim Scott, en­dorsed Richard­son and Qu­at­tle­baum. Gra­ham char­ac­ter­ized them as con­sen­sus picks — in his words, “con­ser­va­tives who are not crazy.”

The 53-year-old Qu­at­tle­baum, who was con­firmed to be a District Court judge ear­lier this year, was nom­i­nated to re­place Judge Wil­liam Byrd Traxler Jr., a 1998 Clin­ton ap­pointee who served as the court’s chief judge from 2009 to 2016.

Carl To­bias, a pro­fes­sor at the Univer­sity of Rich­mond School of Law and an ex­pert on the 4th Cir­cuit, said it was “un- usual, if not rare, to have some­one move up that quickly.” Gra­ham sug­gested he and oth­ers orig­i­nally rec­om­mended Qu­at­tle­baum for the District Court be­cause there was an open­ing, and it sim­ply made sense to el­e­vate him when the op­por­tu­nity arose.

“He’s a solid, con­ser­va­tive judge that, quite frankly, every­body likes,” Gra­ham said.

Qu­at­tle­baum, as an at­tor­ney, was also a mem­ber of a coun­cil Scott es­tab­lished to ad­vise him on ju­di­cial nom­i­na­tions.

The 41-year-old Richard­son was nom­i­nated to re­place Judge Den­nis Shedd, a 2002 Ge­orge W. Bush ap­pointee who was con­sid­ered one of the most con­ser­va­tive judges on the court. Richard­son, a Columbia fed­eral prose­cu­tor, is best known for try­ing and win­ning a death penalty case against Dy­lann Roof, a white su­prem­a­cist who killed nine black parish­ioners dur­ing a 2015 Bi­ble study at Mother Emanuel Church in Charleston.

Trump has not yet nom­i­nated a re­place­ment for Allyson Kaye Dun­can of North Carolina, an­other con­ser­va­tive also con­firmed in the Ge­orge W. Bush years. Til­lis said he has looked at some po­ten­tial nom­i­nees, but is giv­ing the White House dis­cre­tion to make its se­lec­tion.

“(Trump) needs to pick some­body who’s fairly young,” said North Carolina Se­nate leader Phil Berger, a Repub­li­can. “He doesn’t need to pick some­one who’s in their late 50s, early 60s or even 70s. Those are life­time ap­point­ments and, if he picks the right per­son, hope­fully we’ll have some­one who takes a con­ser­va­tive ap­proach to be­ing a judge and will be there for a while so that the longterm predictabi­lity will be some­thing we can count on.”

Berger and his GOP ma­jor­ity in North Carolina have seen the 4th Cir­cuit up­end sev­eral leg­isla­tive vic­to­ries in re­cent years. The court struck down North Carolina’s voter ID law, mem­o­rably claim­ing the GOP ma­jor­ity had used the law to “tar­get African-Amer­i­cans with al­most sur­gi­cal pre­ci­sion.” It also tossed some of the state’s re­dis­trict­ing ef­forts.

“We’ve had a good bit of frus­tra­tion with the 4th Cir­cuit. The per­cep­tion we have is ... some of the judges ap­pear to want to get over into the pol­icy side of things,” Berger said.

In re­cent years, the court also struck down Vir­ginia’s same-sex mar­riage ban, ruled fed­eral sub­si­dies un­der Oba­macare were con­sti­tu­tional even in states that did not set up their own ex­change, and backed a Vir­ginia trans­gen­der teen who wanted to use the bath­room of the gen­der with which he iden­ti­fied. Ear­lier this year, it ruled against Trump’s travel ban af­fect­ing cer­tain Mus­lim­ma­jor­ity coun­tries, which in June was up­held by the Supreme Court.

Elliot Mincberg, a se­nior fel­low at Peo­ple for the Amer­i­can Way — a lib­eral ad­vo­cacy group that among other things tracks ju­di­cial nom­i­nees — told McClatchy that he and his col­leagues would be scru­ti­niz­ing Trump’s 4th Cir­cuit nom­i­nees care­fully.

Mincberg said his group has not yet for­mally weighed in on Qu­at­tle­baum and Richard­son, but has con­cluded so far the two as­pir­ing judges are con­ser­va­tives whose records are “trou­bling” to pro­gres­sives.

MOV­ING LEFT

Some re­cent de­ci­sions from the court would have been un­think­able a gen­er­a­tion ago, when Thur­mond and Helms were able to shape the com­po­si­tion — and even the num­ber of judges — on the court.

In 1990, the court added a 15th mem­ber. Thur­mond made sure it went to South Carolina, giv­ing the Pal­metto State four mem­bers.

“(Thur­mond) wanted to have South Carolina views, and that’s im­por­tant. They don’t want Mary­land judges on a panel, that would be ter­ri­ble,” said To­bias. Mary­land would have been con­sid­ered an out­lier among the South­ern, more tra­di­tion­ally con­ser­va­tive states.

John Napier, a for­mer judge in U.S. Claims Court, aide to Thur­mond and one-time Repub­li­can U.S. rep­re­sen­ta­tive from South Carolina, added that Thur­mond “worked that sys­tem as well as any­one has ever worked a sys­tem of cre­at­ing judge­ships.”

Thur­mond and Helms both left of­fice in 2003.

Now each state has three seats.

Helms blocked Clin­ton’s three nom­i­nees to the court from North Carolina — all were black men — in ret­ri­bu­tion for Democrats block­ing a Ge­orge H.W. Bush pick that Helms sup­ported, ac­cord­ing to me­dia re­ports at that time. It wasn’t un­til 2001 that the court got its first black judge.

That al­lowed Ge­orge W. Bush to ap­point judges early in his ten­ure. But after Democrats took the Se­nate in the 2006 elec­tions, Bush found his picks stymied. Those blocked by Se­nate Democrats in­cluded Steve Matthews, a South Carolina nom­i­nee en­dorsed by Gra­ham and then-fel­low South Carolina GOP Sen. Jim DeMint who never even got a con­fir­ma­tion hear­ing.

“Bush con­tin­ued to push peo­ple who would have got­ten through with a Repub­li­can ma­jor­ity but Democrats were not go­ing to help Bush in his last two years add more con­ser­va­tive ap­pointees to the bench,” To­bias said.

This meant Obama had plenty of op­por­tu­ni­ties to move the court left, while other courts re­placed the 4th Cir­cuit as con­ser­va­tives’ go-to. Po­lit­i­cal changes, too, have al­tered the court. Whereas four states used to be solidly Repub­li­can, the cir­cuit con­tains one clear Demo­cratic state (Mary­land), two clear Repub­li­can states (West Vir­ginia and South Carolina) and two states that are con­sid­ered swing states (Vir­ginia and North Carolina).

“It’s clear to me the 5th Cir­cuit — Texas, Mis­sis­sippi and Louisiana — has seized the man­tle,” To­bias said of the 17mem­ber court. “Trump has al­ready named five peo­ple to that court and so­lid­i­fied its rep­u­ta­tion as the most con­ser­va­tive court.”

It’s a dis­tinc­tion some in the 4th Cir­cuit would like to have back.

“There’s no ques­tion that at the end of 2018, we will have re­vamped many of the courts in this coun­try and moved them fur­ther to the right, or at least moved them from where they are, to the right,” Scott said. “I think it will be the legacy of this Congress.”

Mean­while, pro­gres­sives are watch­ing closely.

“The 4th Cir­cuit is par­tic­u­larly im­por­tant be­cause it hears a lot of civil rights-re­lated cases,” Mincberg said. “We’re def­i­nitely con­cerned about a right­ward shift.”

Paul A. Specht of The News & Ob­server con­tributed re­port­ing from Raleigh.

Emma Dumain: 202-383- 6126, @Em­ma_Du­main

Brian Mur­phy: 202-383- 6089, @Mur­phinDC

CHUCK BUR­TON As­so­ci­ated Press

As­sis­tant U.S. At­tor­ney Jay Richard­son ar­rives at the fed­eral court­house in Charleston, S.C., Mon­day, Nov. 7, 2016, as part of the fed­eral pros­e­cu­tion of Dy­lann Roof for fa­tally shoot­ing nine black parish­ioners at Emanuel AME Church. Trump has nom­i­nated Richard­son to the 4th Cir­cuit U.S. Court of Ap­peals.

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