A few quick hits on President Trump’s nomination of Brett Kavanaugh to the Supreme Court:
- Predictions are easy to make, and hard to make correctly. If I were better at this, I would have moved to Vegas already.
- Judge Kavanaugh will be subject to the same partisan rancor that has infected our federal judicial nomination process for nearly two decades. But he is surely qualified for the Supreme Court. His dozen years on the D.C. Circuit, as well as his educational and professional background, more than qualify him.
- That said, I firmly believe that the President would have been more politically expedient for the President to nominate Joan Larsen (or one of several other former state supreme court justices) for the seat. Judge Kavanaugh is a “safe” pick in part because he has the profile of a consummate Washington insider. Born and raised in Bethesda, his professional career has primarily been spent within the federal government, and he doesn’t appear to have spent much time at all outside the Beltway. (Yale and two clerkships seem to be the bulk of his non-D.C. experience). President Trump had a real opportunity to woo voters in Middle America with a non-East Coast pick, and there were several highly qualified nominees of that sort on his 25-person short list. It is disappointing that someone with greater familiarity with America beyond the Beltway wasn’t picked.
- In the same vein, and despite Judge Kavanaugh’s credentials, I am also disappointed that another D.C. Circuit judge will populate the Supreme Court. The Court already has three D.C. Circuit alums (Roberts, Thomas, and Ginsburg). The D.C. Circuit is an important court, to be sure, but it hardly needs four justices out of nine with that limited perspective.
- I thought Trump would nominate a woman, if only to create a political advantage over the identity politics-obsessed Democrats in the Senate. The Kavanaugh nomination indicates that Trump was not interested in engaging that dynamic this time around. But it’s hard to believe that he wouldn’t revisit it soon. Perhaps he is counting on another vacancy opening in the next two years; if Justice Ginsburg retires, he could nominate a woman (perhaps an even more seasoned Joan Larsen) and really watch the fur fly.
- From the perspective of the courts themselves (and, after all, that’s what this blog is about), the Kavanaugh nomination means more judicial cascades to come. Assuming the nomination is successful, Trump will now have the opportunity to fill Judge Kavanaugh’s D.C. Circuit seat with a (presumably) younger judge of the same qualifications and ideological bent. If he pulls such a judge from the district court ranks, he will have another vacancy for the trial courts as well. Given the record pace with which he is nominating (and the Senate is confirming) federal judges, the courts will have a continued infusion of relatively young (Gen X) judges at all levels.
I’ll have more to say on the choice and its impact on the court system when full blogging resumes at the end of this week.
Anthony Kennedy’s impending retirement means it’s open season on predicting who will be nominated to fill his seat on the U.S. Supreme Court. I offer my own analysis and prediction below. It’s a familiar name for those who have been paying attention to President Trump’s judicial nominations so far.
The President has confirmed that he intends to nominate someone from the list of 25 candidates previously identified by the White House. That is the only certainty. But it’s still possible to whittle down that list significantly using a combination of logic and observation of the President’s nomination trends.
Continue reading “Predicting the next Supreme Court nominee”
Reaction from Senate Republicans on Senator Jeff Flake’s plan to hold up judicial nominations until Congress acts on tariff and trade issues has been respectful but wary, according to this piece in The Weekly Standard:
Although some of Flake’s colleagues have similar convictions concerning Trump’s use of tariffs, they say they won’t go so far as to block Trump’s appointees.
“I am not holding up judicial nominees for that purpose,” Pennsylvania Republican Pat Toomey told reporters on Monday night.
Toomey is a co-sponsor of a measure originally introduced by Bob Corker that would subject tariffs imposed under national security claims through Section 232 of the Trade Expansion Act to congressional approval. Trump has angered close trading partners (and Republicans on Capitol Hill, for that matter) by using that authority to impose tariffs of 25 percent and 10 percent on foreign steel and aluminum. The White House intends to use it again to impose tariffs of 25 percent on imported automobiles.
Toomey and Flake agree that Trump’s license to implement such duties without congressional approval should be revoked. And Toomey said on Monday night that getting a vote on the trade bill is “very important to me” — but so is confirming Trump’s judicial nominees. And Wisconsin Republican Ron Johnson, another co-sponsor of the Corker bill, said that he would love to see Congress reclaim its Article I constitutional authority over tariffs, but that he wasn’t insisting it happen “at exactly this moment in time.”
“I’d prefer he not do it,” Johnson said of Flake’s strategy of targeting Trump’s judicial nominees. “We need to confirm judges.”
Corker himself appeared wary of the notion. “We’re trying to pass the amendment in a normal way,” Corker shouted through the glass of a Senate subway car as the train propelled him away from a gaggle of reporters on Monday night.
Judiciary Chairman Chuck Grassley said on Monday night that he hadn’t spoken to Flake about the issue. “I’m interested in moving these judges, but I also have respect for what [Flake] wants to do,” Grassley told reporters. Senate Majority Whip John Cornyn said he would prefer to advance trade legislation through the Finance Committee, which has primary jurisdiction over the issue. Still, Cornyn didn’t appear completely opposed to the concept of curtailing Trump’s ability to unilaterally impose the Section 232 tariffs.
Senator Jeff Flake (R-AZ), one of the most prominent Republican critics of President Trump, has stated that he “and a few other senators” plan not to vote on any more federal judicial nominations until Congress acts on other issues:
“I do think that unless we can actually do something other than just approving the president’s executive calendar, his nominees, judges, that we have no reason to be there,” Flake said. “So, I think myself and a number of senators, at least a few of us will stand up and say let’s not move any more judges until we get a vote for example on tariffs.”
“The Senate ought to bring legislation to the floor that says hey, we’re going to push back here,” Flake said. “The European Union exporting cars to the U.S. does not represent a national security threat.”
Senator Flake is right about the need for Congress to step up and do its job in a rigorous and thoughtful manner. But it’s a damning indictment of that body that it cannot simultaneously govern the country and approve judicial nominees. Meanwhile, the federal court system continues to operate with many fewer judges than it believes necessary to do its work properly.
The White House recently announced that President Trump had nominated Judge A. Marvin Quattlebaum to a seat on the Fourth Circuit Court of Appeals. Judge Quattlebaum currently sits as a federal district judge in South Carolina–a position he has held for only two months.
There is nothing inherently wrong with seeking to promote* Judge Quattlebaum to the appellate bench. But choosing a sitting district judge will once again create a vacancy in South Carolina, and that vacancy may take much longer to fill. Politics may well dictate filling appellate benches, especially in election years. But the trial courts, the place where the public most closely and commonly interacts with the judicial system, risk becoming the forgotten child. They deserve to filled as rapidly, and with as much care, as do appellate court vacancies.
* Many on the federal district bench would quibble with this term: the trial judges are the real judges! I use it here only in the sense that the Fourth Circuit is higher in the federal hierarchy.
The controversial nomination of Andrew McDonald to the Chief Justice of Connecticut barely passed the state House of Representatives on Monday, by a 75-74 voted. Several Democrats joined Republican opposition to make the vote extremely close.
McDonald had previously received an “unfavorable” report when his nomination led to a 20-20 committee vote. In the leadup to the House debate, outside groups accused Republicans of opposing McDonald because of his sexual orientation. Republicans again fiercely denied that charge in the House. And indeed, most of the debate centered on McDonald’s decision to join a slim 4-3 court majority which struck down the Connecticut death penalty. That decision spared the lives of two men on death row who had been convicted of killing the wife and daughters of state Rep. William Petit. Petit firmly fought against McDonald’s nomination.
The nomination now moves to the state senate, where Republicans hold a slim effective majority.