Re­shap­ing of courts con­tin­ues

Shift fea­tures benches re­stocked with con­ser­va­tives

Orlando Sentinel - - FRONT PAGE - By Matthew Daly

Se­nate con­firmed 13 of Pres­i­dent Trump’s ju­di­cial nom­i­nees, re­stock­ing the benches with con­ser­va­tives.

WASH­ING­TON — Amid in­tense fo­cus on impeachmen­t and year-end deals on spend­ing and trade, the Se­nate hur­tled last week to­ward a lessher­alded ac­com­plish­ment: con­firm­ing another batch of con­ser­va­tive judges.

Sen­a­tors con­firmed 13 of Pres­i­dent Don­ald Trump’s ju­di­cial nom­i­nees, bring­ing to 102 the num­ber of fed­eral judges ap­proved this year — more than twice the an­nual aver­age over the past three decades.

The steady trans­for­ma­tion of the courts re­flects the sin­gle-minded fo­cus of Se­nate Ma­jor­ity Leader Mitch McCon­nell, who has vowed to “leave no va­cancy be­hind” as he and Trump seek to tilt the ju­di­cial branch to the right.

The con­fir­ma­tions in­clude 20 ad­di­tions to the U.S. Court of Ap­peals, bring­ing to 50 the num­ber of fed­eral ap­peals court judges con­firmed in Trump’s first three years in of­fice. The re­lent­less pace means that more than a quar­ter of all fed­eral ap­peals court judges were nom­i­nated by Trump and con­firmed by the Repub­li­can-con­trolled Se­nate.

“While all eyes were un­der­stand­ably on impeachmen­t, Mitch McCon­nell’s con­veyor belt churned out a shock­ing num­ber of judges (last) week in what re­mains the most un­der­rated story of the Trump era,” said Christo­pher Kang, chief coun­sel at De­mand Jus­tice, a lib­eral ad­vo­cacy group.

McCon­nell, a Ken­tucky Repub­li­can, in­sists the stepped-up pace of con­fir­ma­tions is not a par­ti­san achieve­ment.

“It is not one party or the other that ben­e­fits when our fed­eral courts con­sist of men and women who un­der­stand that a judge’s job is to fol­low the law, not to make the law,” he said on the Se­nate floor last week.

This month, the Se­nate con­firmed two con­ser­va­tive lawyers to posts on a Cal­i­for­nia-based ap­peals court that Trump has tagged as a lib­eral bas­tion.

Lawrence VanDyke, a deputy as­sis­tant at­tor­ney gen­eral from Ne­vada, and Pa­trick Bu­matay, a fed­eral pros­e­cu­tor from South­ern Cal­i­for­nia, were ap­proved in sep­a­rate votes to the 9th U.S. Cir­cuit Court of Ap­peals. The San Fran­cis­cobased court, which cov­ers a wide swath of Western states from Alaska to Ari­zona, handles cases of high in­ter­est to the Trump ad­min­is­tra­tion, such as im­mi­gra­tion and de­ten­tion.

Trump, who has called the 9th Cir­cuit a “big thorn in our side,” has now ap­pointed 10 judges to the sprawl­ing court, one of the coun­try’s largest and most in­flu­en­tial.

One un­spo­ken fac­tor propelling Repub­li­cans for­ward is the cal­en­dar. With no guar­an­tee that a Repub­li­can will be in the White House come Jan­uary 2021, there is an em­pha­sis on fill­ing va­can­cies now.

McCon­nell “is mov­ing nom­i­nees as quickly as he can (through the Se­nate), just in case Trump loses in 2020,” said Carl To­bias, a law pro­fes­sor at the Univer­sity of Rich­mond. Un­der Trump and McCon­nell, “Repub­li­cans have packed the ap­peals courts with very con­ser­va­tive judges,” with a par­tic­u­lar em­pha­sis on nom­i­nees un­der the age of 50, To­bias said.

Mike Davis, a former Se­nate Ju­di­ciary coun­sel who runs a con­ser­va­tive group pro­mot­ing ju­di­cial nom­i­nees, pre­dicted Trump will win another term. But he said Repub­li­cans can’t take that out­come for granted.

“Repub­li­can-ap­pointed fed­eral judges who don’t want to stay on the bench through at least Jan­uary 2029 should con­sider re­tire­ment im­me­di­ately as we have a very lim­ited win­dow be­fore the elec­tion to re­place them,” Davis said.

McCon­nell’s abil­ity to push through judges was strength­ened con­sid­er­ably by a Se­nate rules change that cuts down on the amount of de­bate time once a nom­i­nee has cleared an ini­tial vote. In­stead of 30 hours, it’s now just two hours of de­bate. That al­lows McCon­nell to stack up more nom­i­nees for votes, as he did Thurs­day when he pushed through 12 nom­i­nees in a sin­gle af­ter­noon.

Re­shap­ing the courts has been a Repub­li­can goal for 30 years, said Se­nate Demo­cratic leader Chuck Schumer, but has es­ca­lated sharply un­der Trump and McCon­nell.

Democrats are “do­ing ev­ery­thing we can” to slow down the ju­di­cial train, “but they changed the rules,” Schumer said.

Lib­eral ad­vo­cates in­sist the judges be­ing seated are far from the main­stream.

“Trump and McCon­nell are stack­ing the fed­eral courts with ex­treme nom­i­nees who are hos­tile to civil rights, in­clud­ing vot­ing rights, LGBTQ rights and abor­tion rights,” said Lena Zwaren­steyn of the Lead­er­ship Con­fer­ence on Civil and Hu­man Rights, an ad­vo­cacy group.

But Car­rie Sev­erino, pol­icy di­rec­tor of the Ju­di­cial Cri­sis Net­work, a con­ser­va­tive ad­vo­cacy group, said Trump and McCon­nell “have an­swered the call of the Amer­i­can peo­ple.”

She said vot­ers “have made it clear through the demo­cratic process that they want judges who ad­here to the Con­sti­tu­tion and don’t im­pose an agenda from the bench. That is ex­actly what they are get­ting.”


Se­nate Ma­jor­ity Leader Mitch McCon­nell has vowed to “leave no va­cancy be­hind” as he and Pres­i­dent Trump work to­ward tilt­ing the ju­di­cial branch to the right.

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