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Wednesday, May 10, 2017

Trump Judicial Nominees

President Donald J. Trump has announced ten judicial nominees to the federal circuit and district court nominees.  Two quick reactions to these nominations.

(1) While Trump’s campaign and presidency have reflected and leveraged the internal divisions and therefore weaknesses of the Republican Party, his judicial nominations so far have reflected what I blogged about previously: the strength of the judicial nominations part of his party. Neil Gorsuch would have been a front-runner for a Supreme Court nomination in a more traditional Republican Administration.  His first nominees to the lower federal courts are incredibly traditional and/or Establishment-dominated—many Supreme Court clerks and many current or former law professors.  Rather than displacing or challenging his party on judicial nominations, he has approached judicial nominations in the most unsurprising way possible for a contemporary Republican President.

(2) I recently wrote an essay for a symposium in the Wisconsin Law Review about the relatively “cooperative” approach to judicial nominations utilized by the Obama Administration. The Obama Administration’s first nominee to the circuit courts was David Hamilton, a centrist district court judge in Indiana with established ties to both political parties.  Hamilton was not particularly young, not particularly famous, and was the only circuit court nominee announced the day he was announced.  By contrast, many of Trump’s nominees announced this week are very connected in the Republican Party, very young, and very known—and he announced ten nominees in one day.  Republican Senator Tom Cotton has mentioned this week that Senate Republicans are considering abolishing the blue-slip rule.  The difference in behavior between the first few months of the Obama and Trump Administrations on this issue are striking.

Posted by David Fontana on May 10, 2017 at 03:23 PM | Permalink


One way to explain this behavior is that conservative judges are politically popular, and therefore are brought out with much fanfare, while liberal judges are politically unpopular, and therefore are nominated in a low-key fashion.

Posted by: M. Rad. | May 16, 2017 8:52:43 PM

Rick Garnett cites Breyer's votes in two basic religious disputes in recent years that lead to divisions where "moderate" would apply: drawing lines on public displays & spending in schools.

I'll toss out a third one: Good News Club v. Milford Central School. 6-3 case, Breyer joining the majority. He concurred but said "agree with the Court's conclusion and join its opinion." Sounds like a moderate position. And, to be fair, he did "join" the conservative opinion.

It's fair to say "moderate liberal" (as there are moderate conservatives such as O'Connor, Powell and Kennedy). This shows where he didn't join conservatives but took a moderate approach. In Pinette, he joined the middle moderate position. In Salazar v. Buono, he wanted to avoid the 1A question, minimalism often the "moderate" approach. It's likely in Zubik he pushed for a moderate compromise.

Posted by: Joe | May 13, 2017 9:05:10 AM

"Labels are a tad misleading."

Labels can't be misleading, that's why you can pick your pronoun.


"Here, respondent seeks to disclose only truthful, verifiable, and nonmisleading factual information [. . .]."

Posted by: ThatsWhatSheSaid | May 12, 2017 10:49:56 PM

David, I guess we will. =-) I think the problems with the databases and coding practices you mention, and with which I am familiar (from probably too many judicial-politics presentations) go deeper than "quibbles." I'll concede, happily, though, that these databases and coding practices are more sophisticated than the processes which determine the labels attached to nominees by Senators, editorial writers, and activists!

Posted by: Rick Garnett | May 12, 2017 11:00:09 AM

Joe, I can think of two religion cases - putting aside 9-0 cases -- in which Breyer joined with "conservatives": Mitchell v. Helms (but he seems to have changed his mind in Zelman) and Van Orden v. Perry. Am I missing any? (I could well be! - And, while I'm hoping for a 9-0 in Trinity Lutheran, I could imagine him joining a 7-2 ruling.)

Posted by: Rick Garnett | May 12, 2017 10:55:21 AM

Breyer joined with conservatives in many cases including involving religion, Medicaid funding, other crime issues and others.

Garland to me is akin to Breyer. Also, given how the Court shifted, Kennedy is now seen by many as a "moderate." He is a moderate conservative. Garland is a moderate liberal. Labels are a tad misleading.

Posted by: Joe | May 12, 2017 10:44:31 AM

Re "ideology," Judge Garland was widely depicted as a "moderate." Yet, other than the Fourth Amendment, is there a single major controversial issue on which the Court routinely divides in which he would have been likely to join the conservatives? I believe the answer is "no."

Posted by: David Bernstein | May 12, 2017 10:18:15 AM

How do you define "ideological"? Is striking down a waiting period on abortions ideological? If not, then neither is striking down a waiting period of buying guns, right?

Posted by: Ideologst | May 11, 2017 9:32:38 AM

1. I don't see Sotomayor as any more cooperative of a nominee than Gorsuch, though that perhaps wasn’t completely obvious from her Second Circuit record. Nevertheless, it came as a shock to no one that early in her time on the Court she was writing blistering near-solo dissents about the unconstitutionality of *banning* affirmative action. One could make a pretty plausible argument that she’s the most liberal Justice since Marshall or late Blackmun.

2. I agree that Hamilton was probably intended as a signal to GOP Senators, though I don't know if there weren't more local reasons that Obama started with an Indiana vacancy, and that he filled it with Hamilton. There may not have been an abundance of exciting liberal Indianan candidates who Lugar would accept.

3. I agree with (what I suspect is) the argument of your article that Obama gained nothing by beginning his lower-court nominations with someone who Republicans wouldn’t view as a potential Supreme Court nominee, though I happen to like Hamilton a lot and think he could be a perfectly good Justice.

4. However, query whether Obama would have begun his lower-court nominations differently had he come into office with a Supreme Court vacancy. Beginning your lower-court nominations in a conciliatory way would be, even to Obama's misguided tacticians, an obviously useless gesture had he begun his presidency by nominating Sotomayor.

5. While I'm not convinced that putting extremely smart, intellectually adventurous, highly credentialed people on the lower courts is an unalloyed good, especially if they’re distinctly left or right of center, I like filling the lower courts with people who have the competence to sit on the Supreme Court a lot more than I don’t like it. Even in the case of the less heralded nominations, like John Bush's, they seem to have gotten just about the most qualified conservative nominee in Louisville to replace Danny Boggs that they could find. So I think Trump and his people should be praised for a very merit-driven, albeit highly ideological, approach to judicial nominations, and Obama criticized for sacrificing merit and interesting track records/intellectual diversity for political cooperation.

Posted by: Asher Steinberg | May 11, 2017 5:32:20 AM

Why is superficial diversity (race) our strength, but intellectual diversity is an "internal division"?

Posted by: DontHavetoThinktheSame | May 10, 2017 9:43:36 PM

Had Hillary Clinton just come out and said that no part of her agenda requires any form of gun-control at all--like you can have single-payer health care and handguns in the home--she would've won. No one voted for Trump, we all voted against Hillary's civilian disarmament (Chicago) policy.

Posted by: RedAndWhitebutBlue | May 10, 2017 9:31:18 PM

Thank you for your response and for reading the post. I think we will have to disagree on this one. (1) There are pretty good databases to place judges on the ideological spectrum, even now for lower court nominees. I think there are quibbles against each of these databases, but to me that does not doom the entire enterprise of placing judges on an ideological spectrum. In the particular case of Judge Hamilton, the ideological distribution of his supporters and their placing of him on that ideological spectrum can be added to other measures placing him. (2) I think the Slate piece (and other things that Micah and I have separately and together written) have even more comprehensive information about the age of judicial nominees in Bush 43 and other Republican presidents as compared to during the Obama Administration. (3) In terms of the number of nominees at one time, given the limited political capital of interest groups and the Senate, it does create different dynamics to have more nominees at the same time. I talk about this in Part III of my paper if you want more elaboration. Thanks again! David

Posted by: David Fontana | May 10, 2017 6:59:09 PM

I agree, David, that Trump's judicial picks have been the most conventional aspects of his presidency. (And, for "establishment"-types like me, this has been welcome.) The description of Judge Hamilton as a "centrist" nominee, though, strikes me as illustrating that this and similar judicial-nominee descriptors (e.g., "moderate", "extremist", "mainstream", etc.) are rarely noncontestable. (Is, say, Larsen's record less "centrist" than Hamilton's?) For "conservatives", his work at the ACLU and his record on the DCT with Indiana's abortion law would have been regarded the way, say, Sen. Schumer seems to regard involvement with the Federalist Society. And, he was named to the federal bench when he was 37 (to the CTA7 when he was 52), a year younger than Judge Thapar, who was held up in the Slate piece to which you link. So, I guess I'm not (yet) seeing the striking difference -- the "ten-judge slate" thing doesn't seem a particularly big deal to me, assuming Grassley confirms them one at a time -- that you see (though I agree, certainly, that Republicans generally speaking have put more effort into getting younger federal judges than Democrats have).

Posted by: Rick Garnett | May 10, 2017 6:37:43 PM

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