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Trump Is Winning On Judges

It’s not all chaos at the White House: Trump has been steadily delivering on his promise to appoint conservative judges.

Carlos Barria / Reuters

The health care push collapsed. The White House is the scene of a frantic game of musical chairs. And the looming specter of the Russia investigation has plagued President Trump since he took office.

But amid the chaos, the Trump administration is steadily making progress on a campaign promise that will outlast this administration for decades: the confirmation of federal judges to lifetime positions on the bench. Trump wooed wary Republicans last year with pledges to appoint conservative judges. His administration so far has delivered.

The White House has announced more than two dozen lower court nominees to date, and the Senate Judiciary Committee has been holding hearings and sending nominees to the full Senate for a vote at a regular clip.

Just Monday, after the news broke that White House communications director Anthony Scaramucci was ousted on the 11th day of his tenure, the Senate took a key procedural vote on a federal appeals court nominee out of Alabama, Kevin Newsom. On July 20 — as the White House dealt with fallout from an interview published the night before in which President Trump criticized Attorney General Jeff Sessions — the Senate confirmed Kentucky lawyer John Bush to the US Court of Appeals for the Sixth Circuit, notwithstanding a coordinated, well-funded opposition campaign by groups on the left.

“It’s just been a win on all fronts,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which supports conservative court nominees.

The administration’s success with judges is about more than the fact that Republicans control the Senate. Lower courts remain mostly of regional interest, despite the fact that federal judges have lifetime tenure and issue rulings that can affect the entire country. Senators defer to their colleagues’ preferred local picks. There is little incentive to interfere, even if, as was true with John Bush, Republicans have concerns about a nominee’s record.

There’s also the fact that Republicans historically have been more organized on judges than Democrats, said David Fontana, a professor at George Washington University Law School who follows judicial nominations. There are numerous interest groups and political factions around issues like health care, he said, but there is a tight-knit community of conservative lawyers who foster and promote court nominees during Republican administrations.

That fact, combined with the deference shown to home state senators, meant that there was already a pipeline of candidates for the Trump White House to consider as soon as he took office, Fontana said. He posited that some of Trump’s judicial nominees, such as Newsom, would have been nominated even if Sen. Marco Rubio or Jeb Bush had won the election.

Liberal advocacy groups that have unsuccessfully tried to block Trump’s lower court nominees thus far say they’re disappointed, but not giving up.

Daniel Goldberg, legal director of Alliance for Justice, said John Bush’s confirmation was “disturbing,” but he still felt that Democrats and advocacy groups had a shot at blocking nominees in the future if they had questionable records.

“One thing that’s abundantly clear is they’re committed to doing all they can to put [up] far-right, dangerous ideologues who are committed to eroding critical constitutional rights and legal protections, whether that’s for civil rights, for women, for LGBTQ Americans, for workers, [or] for persons with disabilities,” Goldberg said.

Sasha Buchert, a staff attorney at Lambda Legal, said that although Bush was ultimately confirmed, she thought the organizing efforts against him helped build up public interest in judges. She said Bush’s nomination also presented unique circumstances, given the fact that he was backed by Senate Majority Leader Mitch McConnell.

“We’re confident that our work will continue raising visibility on this issue and will result in some of these dangerous nominees going down,” she said.

“Judges first”

Senate Judiciary Committee Chairman Chuck Grassley has signaled that moving judges through are a top priority. On July 26, in response to reports that Trump was unhappy with Attorney General Jeff Sessions and might move to fire him, Grassley tweeted that the committee’s agenda was already set for the rest of 2017, with “judges first,” and no time for a new attorney general nominee.

Democrats have accused Republicans of rushing through nominees and not waiting for the American Bar Association to complete its independent review of judicial nominees, which normally takes about five weeks. California Sen. Dianne Feinstein said in a statement to BuzzFeed News on Monday that many of Trump’s nominees, including John Bush, are “far outside the mainstream or have very little relevant experience.” She said Democrats would ensure that “questionable records are known not only by our Republican colleagues but also the American public.”

Many of Trump’s nominees so far are from states with two Republican senators. Democrats may be able to stall certain nominees they don’t like through a tradition known as the “blue slip process.” The practice has varied over time, but in recent years it has meant that the Senate Judiciary Committee won’t act on a nominee unless both home state senators return a form — historically on a blue piece of paper — that signals their approval. But that tactic would only work for nominees in states with at least one Democratic senator.

Grassley has held off scheduling hearings on certain Trump nominees, citing unreturned blue slips, but he has also hinted that he might loosen the practice for appeals court nominees. A spokesperson for Grassley said in an email that while Grassley “trusts that his colleagues will take this process seriously, he has said that he will address any abuses as necessary.”

Grassley is waiting for blue slips from one or both home state senators on four federal appeals court nominees, according to a source familiar with the process: Colorado Supreme Court Justice Allison Eid, nominated to the Tenth Circuit; Michigan Supreme Court Justice Joan Larsen, nominated to the Sixth Circuit; Minnesota Supreme Court Justice David Stras, nominated to the Eighth Circuit; and law professor Stephanos Bibas, nominated to the Third Circuit.

To date, Trump has nominated 28 lower court judges, and three have been confirmed. Of the 25 pending nominees, five, including Newsom, are waiting for a vote by the full Senate. There are 136 federal court vacancies, with more than 20 upcoming vacancies already announced, according to the federal judiciary’s website.

There are two lawyers in the White House counsel’s office who are coordinating judicial nominations, James Burnham and Rob Luther. Clusters of courts have been assigned to White House lawyers by geographical region. The White House counsel’s office works with the Office of Legal Policy at the US Department of Justice to vet and interview judicial nominee candidates.

Burnham, and, to a lesser extent because of their schedules, White House Counsel Don McGahn and White House Deputy Counsel Greg Katsas, sit in on interviews with appeals court nominees, along with the lawyers handling that particular region. McGahn is responsible for making recommendations to Trump.

A senior White House official who was not authorized to speak on the record said that judicial nominations were a top priority for the Trump administration, pointing to the president’s promises to nominate judges similar to the US Supreme Court short-list he released during the campaign.

The White House official disputed that outside conservative groups such as the Federalist Society and Heritage Foundation are pulling the strings on judicial nominations — a frequent claim by groups on the left. The official said that one reason nominations were moving quickly was because the government lawyers doing the vetting were not involving outside groups or other White House officials in the decision-making process.

The official also said that the White House was consulting with Democrats on nominations. Two of Trump’s district court nominees so far have been unsuccessful Obama-era nominees — Scott Palk for a seat in Oklahoma and David Nye, who was confirmed on July 12 to an Idaho vacancy — although both had the backing of their Republican home state senators.

Thee White House did consider recommendations from lawyers and outside groups, as was true of previous administrations, the White House official said. Leonard Leo, the executive vice president of the Federalist Society, who advised Trump during the campaign and the transition on judicial nominations, is consulted on nominations at a “high level,” the official said, but “the idea that he’s sort of floating above every interview giving the thumbs up or thumbs down is just ridiculous.”

Leo said in an email to BuzzFeed News that Trump's appeals court nominees "have boasted substantial credentials and qualifications," and that the White House had been consulting with Democrats to come up with "consensus candidates" for the district courts.

Severino said that she has been “thrilled” with the nominees so far.

“It really represents [Trump’s] fulfillment of one of his most important campaign promises, not just to replace Justice Scalia with someone in his mold, but put other federal judges who would follow in those footsteps and commitment to the law and the constitution,” Severino said.

The Judicial Crisis Network has been relatively quiet since Justice Neil Gorsuch was confirmed to the US Supreme Court in April. The group, which poured millions of dollars into the Gorsuch fight, has launched just one ad campaign since then, in support of Michigan Supreme Court Justice Joan Larsen’s nomination to the US Court of Appeals for the Sixth Circuit. Severino said her group will take its cues from how Democrats respond to the president’s nominees.

Robert Raben, president of the Raben Group and a former Justice Department official under President Bill Clinton, said that liberals are good at organizing in support of nominees, particularly if they promote diversity on the bench, but haven’t figured out yet how to mobilize their base successfully against nominees with conservative records.

“Regrettably for the left, the nominations process of the Trump administration is going better for them than I would have hoped,” Raben said.

Zoe Tillman is a reporter with BuzzFeed News and is based in Washington, DC.

Contact Zoe Tillman at zoe.tillman@buzzfeed.com.

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