Biden attempts to diversify federal courts

Trump’s imprint on the judiciary has been felt most acutely at the supreme court, where a third of the justices were appointed by the former president. In the past year, the court has curtailed the federal government’s ability to set climate policy and struck down a New York law aimed at regulating the carrying of firearms in public. Most notably, the court overturned a half-century of precedent by ending federal protections for abortion access.

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So far, Biden has moved at an impressive clip to get liberal judges confirmed to federal courts. In 2021, the president oversaw more first-year federal court appointments than any president since John F Kennedy.

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In addition to their sizable numbers, Biden’s judicial nominees are notable for their racial, gender and professional diversity – particularly considering how long the highest US courts have been dominated by white men. Nearly three-quarters of Biden’s court nominees have been women, and almost two-thirds have been people of color. Biden has also made a point to nominate many former public defenders and civil rights lawyers, who have been historically underrepresented among federal judges.

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The Senate majority leader, Chuck Schumer, has successfully advanced dozens of Biden’s nominations through the chamber despite Republican efforts to block or at least delay confirmation. Because the Senate was evenly divided over the past two years, Democrats and Republicans held the same number of seats on the judiciary committee. Republicans used that evenly divided power to create a deadlock on committee votes and force Democrats to deploy additional, time-consuming procedural measures to approve judicial nominations.

With Raphael Warnock’s victory in the Georgia special election this month, Democrats will gain a seat on the judiciary committee. Even with Kyrsten Sinema’s unexpected announcement this month that she will change her party affiliation to independent, Democrats are still expected to have majorities on Senate committees.

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But Democrats still have their work cut out for them to match Trump’s judicial record. Over his single term in office, Trump remade the federal judiciary, placing very conservative judges on some of the most influential courts in the country. In addition to his three supreme court justices, Trump appointed 54 federal appellate judges and 174 district court judges, marking the largest single-term total of any president since Jimmy Carter.

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By the time Trump stepped down, he had nominated more than a quarter of all actively serving federal judges.

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To help ease the confirmation process for some nominees, Humphrey’s group and other progressive organizations have called on Senate Democrats to reconsider the practice of “blue slips”.

The blue slip policy gives home-state senators the option to block district court nominees from even receiving a hearing, which has made it difficult for Democrats to fill vacancies in states with at least one Republican senator.

  Guardian

That is such a bizarre practice, whose details seem to change with every presidency.

...but hey, do what you want...you will anyway.

McConnell is busy

Gotta get all those unqualified judges on federal benches before Republicans lose the Senate.

The Senate confirmed President Trump's 50th circuit court nominee on Wednesday despite the pick being rated "not qualified" by the American Bar Association (ABA).

Senators voted 51-44 to approve Lawrence VanDyke's nomination to be an appeals judge on the 9th Circuit. Sen. Susan Collins (R-Maine) joined Democrats in opposing his nomination.

  The Hill

Too little, too late, Susan. That Kavanaugh vote sealed your fate.

VanDyke grabbed headlines in October when he started crying during his confirmation hearing before the Senate Judiciary Committee. The emotional moment came when he was asked about concerns that the ABA brought forth about his treatment of LGBT people.

“I did not say that,” he said, fighting through tears. “I do not believe that. It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect.”

The tears worked for Kavanaugh, but really, this was unnecessary. The Senate GOP is going to put any ultra-right, young (Van Dyke is 47), jurist on the bench. 

Neither of his home-state senators, Sens. Catherine Cortez Masto (D-Nev.) nor Jacky Rosen (D-Nev.), returned their blue slips on the nomination. A blue slip is a sheet of paper that indicates if a home-state senator supports a nominee. Republicans made history by confirming the first circuit judge nominees who did not receive a blue slip from either home-state senator.

[...]

The ABA rated VanDyke, a former solicitor general in both Nevada and Montana, as “not qualified” following an investigation that included interviews with 60 individuals.

"Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to- day practice including procedural rules," the group wrote in a letter to the Senate Judiciary Committee.

The perfect candidate!

"There was a theme that the nominee lacks humility, has an 'entitlement' temperament, does not have an open mind, and does not always have a commitment to being candid and truthful," the ABA standing committee continued, noting that some interviewees "raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community."

Republican senators, during the committee hearing, dismissed the ABA's rating as a partisan attack because a member of the group's standing committee responsible for the 9th Circuit donated to one of VanDyke's political opponents.

That's a very tiny figleaf.

...but hey, do what you want...you will anyway.

Unbelievable

The Senate voted Thursday to make Steven Menashi a lifetime federal judge, despite his inflammatory writings about women’s rights and diversity, his refusal to answer senators’ questions and his role in devising an illegal Education Department effort to deny debt relief to students cheated by for-profit colleges.

  HuffPo

Despite, or precisely because of?

Nearly every national civil and women’s rights group opposed him, including the NAACP, the National Organization for Women, the Human Rights Campaign, Muslim Advocates and Planned Parenthood. Democrats questioned his qualifications ― he has never tried a case, made oral arguments in court or conducted a deposition ― as well as his temperament.

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[He] claimed that a Dartmouth fraternity wasn’t being racist when it held a “ghetto party” attended by white students donning Afros and carrying toy guns.

He also spread the Islamophobic myth that in 1913, Gen. John Pershing executed Muslim prisoners in the Philippines using bullets dipped in pig fat.

During his confirmation hearing last month, Menashi angered both Republican and Democratic senators by refusing to give details about his White House legal work. He conceded that he worked on immigration policies with Trump’s senior adviser Stephen Miller, the chief architect of Trump’s ban on travelers from several Muslim-majority countries and Trump’s policy of separating migrant children from their parents at the U.S.-Mexico border.

[...]

Menashi ignored senators’ follow-up questions about his potential role in White House efforts to cover up evidence of the July 25 phone call between Trump and Ukrainian President Volodymyr Zelensky that is at the center of the House impeachment inquiry. Menashi has been Trump’s legal adviser for more than a year.

[...]

None of these details swayed Republicans to oppose Menashi.

“Mr. Menashi won major support from the Judiciary Committee ... on the basis of strong academic and legal qualifications,” Senate Majority Leader Mitch McConnell (R-Ky.) said ahead of Thursday’s vote. “I would urge all of our colleagues to confirm this impressive nominee.”

And everybody's scared of Mitch.

The 2nd Circuit Court of Appeals is based in New York, where Menashi doesn’t have support from either of the home-state senators — something that rarely happens and is embarrassing. Both of them condemned him ahead of his confirmation vote.

Before Trump there was a generally respected procedure that blocked judges from consideration if their home state Senators refused to back them. The "blue slip" procedure.

Menashi will now fill a seat on the 2nd Court of Appeals that was previously held by former Supreme Court Justice Thurgood Marshall, a champion of civil rights.

Who is turning in his grave right now.

Next stop: Supreme Court

The federal appeals court in Washington, D.C., on Wednesday ruled that House Democrats can obtain President Trump's financial records.

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The circuit court judges declined a request from Trump to have the court's full bench of judges hear the case after a three-judge panel in October denied Trump’s request to shield his longtime accounting firm Mazars from having to comply with lawmakers' subpoena for records.

The judges voted 8 to 3 against rehearing the case. Those in the majority included seven judges appointed by Democrats, including Chief Judge Merrick Garland, and one Republican appointee, Judge Thomas B. Griffith. The dissenters were all Republican appointees.

  The Hill

At least two of them Trump appointees.

Additionally, the House Ways and Means Committee has filed a lawsuit in an effort to get a judge to order the Treasury and IRS to provide it with six years of Trump's federal tax returns, and Trump has filed a lawsuit in an effort to prevent the committee from obtaining his New York state tax returns.

Trump suffered a setback in the latter case on Monday when a district court judge in D.C. dismissed Trump's claims against two of the defendants in that lawsuit.

Trump is also seeking to block subpoenas that the House Intelligence and Financial Services committees issued to Deutsche Bank and Capital One for his financial records. That case is currently pending before the federal appeals court in New York.

As the courts become partisan proxies, so goes the republic. Banana republic.

UPDATE 11/15:  Trump has filed with the Supreme Court.

Speaking of court packing...

I'm guessing a lot of the judges they're packing on federal benches are unqualified in part due to their inexperience.  They want young ones because these are lifetime appointments that will give the ultra right many, many years of advantage.

Highlighting why Supreme Court reform should be a priority for a Democratic Congress/president.

...but hey, do what you want...you will anyway.

He can do anything - you can't touch him

That's their argument.  They're in Appellate Court now.  Earlier, the case was in court in Manhattan, and Judge Victor Marrero wisely rejected the argument.  So, they're making their way up to the Supreme Court, where they undboutedly believe (and could be right) that the Trump-packed bench will reverse the lower court rulings.

One of Donald Trump’s personal lawyers has argued to judges that the president cannot be investigated by local authorities while he is in office, even if he murdered someone on Fifth Avenue in New York.

William Consovoy, a personal attorney for Trump, tried to convince judges during a trial on Wednesday that Trump can reject a subpoena for his tax returns on grounds of presidential immunity.

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Consovoy told judges that New York’s local prosecutors had partisan intentions to embarrass the president when issuing the subpoena. He argued there was precedent to the idea that, while a president is not immune from prosecution in federal court, “local pressures” on a president may be different.

Judge Denny Chin pushed him on that claim, referencing a statement Trump made in the midst of the 2016 election about the staunch loyalty of his supporters. “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters,” Trump said.

Chin asked Consovoy: “What’s your view on the Fifth Avenue example? Local authorities couldn’t investigate? They couldn’t do anything about it?”

“I think once a president is removed from office, any local authority – this is not a permanent immunity,” Consovoy said in response.

“Well, I’m talking about while in office. That’s the hypo[thetical]. Nothing could be done? That is your position?” Chin pressed further.

“That is correct,” Consovoy said.

[...]

Trump’s lawyers and New York prosecutors struck a agreement that says if Trump loses Wednesday’s battle in the court of appeals, his lawyers will take no more than 10 days to petition to the supreme court.

  Guardian

Well, that's SOMEthing, I guess.

To be clear, Consovoy is not correct about the law. As the Supreme Court explained in Clinton v. Jones (1997), “it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. Moreover, the Court added that “we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”

[...]

Similarly, because the financial information sought by prosecutors also does not relate to Trump’s official duties, Trump’s claim of immunity [...] weak.

  Vox

To be continued.

We will be decades recovering

If we ever do.

Why you pack the courts

A federal judge on Tuesday overturned ObamaCare protections for transgender patients, ruling that a 2016 policy violates the religious freedom of Christian providers.

Judge Reed O’Connor in the Northern District of Texas vacated an Obama-era regulation that prohibited insurers and providers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy.

It also required doctors and hospitals to provide “medically necessary” services to transgender individuals as long as those services were the same ones provided to other patients.

O’Connor, the same judge who last year ruled that the entire Affordable Care Act is unconstitutional, said the rule violates the Religious Freedom Restoration Act.

His ruling is likely to be appealed.

  The Hill

One would hope.

...but hey, do what you want...you will anyway.

UPDATE 03/30/2023: O'Connor tearing down the ACA again.

Why you pack the courts

Yes.  That's what he's saying. But it's fair to note that the GOP doesn't care about him personally.  They're pushing through his nominees for their own agenda.
...but hey, do what you want...you will anyway.