Category: Reshape Federal Courts

Trump to nominate anti-abortion, religious rights lawyer for next federal judgeship in St. Louis

The White House on Wednesday announced President Donald Trump’s “intent to nominate” a St. Louis County anti-abortion and religious rights lawyer, Sarah E. Pitlyk, for an open federal judgeship in St. Louis.

As the Post-Dispatch reported last month, Pitlyk is special counsel to the Chicago-based Thomas More Society, a not-for-profit law firm “dedicated to restoring respect in law for life, family, and religious liberty.” At the society, she worked to defeat an “abortion sanctuary city” ordinance in St. Louis, and on “several landmark pro-life and religious liberty cases.” She also worked on contract, employment, and tax cases.

Pitlyk was involved in a dispute over whether a divorced St. Louis County couple’s frozen embryos were property or “unborn children” under Missouri law; a civil lawsuit filed against Planned Parenthood by a man acquitted of a bomb threat charge; and the defense of a man accused in California of making a false exposé claiming Planned Parenthood was selling fetal tissue.

Pitlyk did not return messages seeking comment last month. 

Representatives of U.S. Sen. Josh Hawley and U.S. Sen. Roy Blunt, both Republicans, also did not return messages last month seeking comment. On Twitter, both praisedPitlyk Wednesday.

Pitlyk graduated summa cum laude from Boston College before receiving master’s degrees in philosophy from Georgetown University and in applied biomedical ethics from the Katholieke Universiteit Leuven in Belgium, where she was a Fulbright Scholar, her bio says.

In July, 2012, Pitlyk placed her Missouri bar license on inactive status, saying in a filing that she “was not planning on practicing law for the foreseeable future.” She sought to re-activate the license in February 2013.

Pitlyk worked at the Runnymede Law Group, formed by the last Trump pick for federal judge, Stephen R. Clark, and for Clark and Sauer LLC, a predecessor firm. 

Pitlyk, if confirmed, would replace U.S. District Judge Catherine Perry, who took senior status — a form of semi-retirement in which judges can take a reduced caseload — effective Dec. 31. 

[St. Louis Today]

Trump nominates judge who argued countries are stronger if everyone is same ethnic group

A White House lawyer chosen by Donald Trump to serve on the federal appeals court previously argued countries were weakened by ethnic diversity.

Steven Menashi, the president’s nomination for the Court of Appeals Second Circuit, wrote in an academic journal that “ethnic ties provide the groundwork for social trust” and “solidarity underlying democratic polities rests in large part on ethnic identification”.

“Surely, it does not serve the cause of liberal democracy to ignore this reality,” he added in the 2010 article for the University of Pennsylvania Journal of International Law.

The passages resurfaced on social media following the announcement of Mr Menashi’s nomination on Wednesday and were later discussed on air by MSNBC host Rachel Maddow, who described them as “a highbrow argument for racial purity in the nation state”.

In the journal article, titled “Ethnonationalism and Liberal Democracy”, the lawyer says he aims to refute claims that “Israel’s particularistic identity — its desire to serve as a homeland for the Jewish people — contradicts principles of universalism and equality upon which liberal democracy supposedly rests”.

“This article, in contrast, argues that ethnonationalism remains a common and accepted feature of liberal democracy, consistent with current state practice and international law,” he writes.

[The Independent]

Update

On November 14, 2019, Senate Republicans overwhelmingly voted to approve Menashi to a lifetime appointment.

Controversial Trump Judicial Nominee Steven Menashi Confirmed to Second Circuit Court of Appeals

Senate confirms Brian Benczkowski, justice official who worked for Russian bank

The Senate on Wednesday approved President Donald Trump’s pick to lead the Justice Department’s criminal division following a yearlong confirmation process.

Brian Benczkowski was narrowly confirmed as an assistant attorney general with a 51-48 vote. Democrats strongly opposed the nomination, partly because of his work while in private practice for a leading Russian bank. Democrats said his Russian ties could complicate special counsel Robert Mueller’s ongoing investigation into Russian interference in the 2016 election and possible coordination with the Trump campaign.

Democrats also contended that Benczkowski did not have enough experience in federal courtrooms to run the criminal division. The position is one of the most significant in the Justice Department, with the assistant attorney general having oversight of criminal cases involving public corruption, financial fraud, computer hacking, drug trafficking and other major crimes.

Benczkowski sought to downplay those concerns at his confirmation hearing last year, saying, “Being head of the criminal division in the first instance is principally a management and leadership job.” He noted that he had held multiple Justice Department posts, including serving as chief of staff to former Attorney General Michael Mukasey in the Bush administration.

“One of the things that I learned in the course of those previous positions is how important it is to consult and listen to the career lawyers in the department,” Benczkowski said.

Benczkowski, who also served as an aide to Jeff Sessions when he was a U.S. senator, has most recently been a partner at Kirkland & Ellis law firm and a Justice Department official.

Sessions, now attorney general, welcomed Benczkowski to the job Wednesday, praising his diverse experience.

[NBC News]

Trump slams due process: ‘We’re the only country that has judges’

Trump’s contempt for the rule of law was on full display when he mocked the very idea of due process for immigrants, and seemed to suggest ending immigration courts altogether.

In an interview that aired during Thursday morning’s “Fox & Friends,” host Brian Kilmeade pointed out that Trump’s crackdown has contributed to a monumental backlog in immigration courts.

“You need more judges,” Kilmeade said. “How close is that?”

“Think of it, we are the only country, essentially, that has judges,” Trump said. “They want to hire thousands of judges. Other countries have, it’s called security people. People that stand there and say ‘You can’t come in.

“We have thousands of judges, and they need thousands of more judges,” Trump said. “The whole system is corrupt, It’s horrible. So, yeah, you need thousands of judges based on this crazy system.”

“Who ever heard of a system where you put people through trials?” Trump asked. “Where do these judges come from? You know, a judge is a very special person. How do you hire thousands of people to be a judge? So, it’s ridiculous. We’re going to change the system. We have no choice for the good of our country.”

Trump’s ignorance of immigration courts is staggering, even by Trump’s standards. There are only just over three hundred immigration judges in the United States, and the number of new judges needed to address the backlog is between 200 and 250, not “thousands.”

And Trump is also wrong about the level of due process afforded in immigration courts, where the government is not required to provide legal counsel and, children often end up representing themselves in perfunctory proceedings.

But even worse than our current dysfunctional immigration courts is the prospect that Trump would try to do away with them, as he suggests.

Time and again, Trump has shown contempt for bedrock democratic concepts like free speech, freedom of the press, and an independent Justice Department. Unfortunately, Republicans in Congress have shown equal contempt for their own role as a check on the White House, which makes Trump’s despotic ruminations that much scarier.

[Shareblue]

Trump Judicial Nominee Appears to Have Called Undocumented Immigrants “Maggots”

Next week, the Senate Judiciary Committee will hold hearings on the nomination of Michael Truncale, whom Donald Trump selected to sit on the U.S. District Court for the Eastern District of Texas. A longtime Republican donor and activist, Truncale built his career opposing progressive policies, including the Affordable Care Act, gun control, and abortion access. He also appears to have referred to undocumented immigrants as “maggots.”

Truncale made this comment in 2012, when running for Congress in Texas’ 14th Congressional District, a seat that came open upon the retirement of Rep. Ron Paul. (He ultimately lost, coming in third place in the GOP primary.) During a candidate forum hosted by the Galveston County Republican Party and the Republican Network of Galveston County, Truncale said that the state’s Southern border is “very porous.” He continued:

And as a result of the nature of that border we have all sort of bad influences coming in. We have drugs, we have illegal gangs, there is the possibility of bombs from a host of other countries and people from overseas and we must secure that border. I think we should do it with boots on the ground. As a citizen taxpayer, I think that we should take some of the equipment that is coming back from Iraq that citizens have already paid for and instead of sending it to some warehouse in Nebraska or some place, let’s get it to the border patrol. … There can be some fencing, there can be electronic surveillance, and things of that nature to secure the border. But that’s the first thing.

Truncale then added that “with regard to immigration, we must not continue to have the maggots coming in.”

It is difficult to read this statement, first flagged by Harsh Voruganti of the nonpartisan legal blog the Vetting Room, as anything other than a reference to undocumented immigrants. The apparent slur raises obvious questions about Truncale’s impartiality in cases involving Latinos and immigrants, as well as his overall fitness for the bench. Judges may hold strong feelings about border security. But Truncale’s decision to publicly malign unauthorized immigrants raises doubts about his ability to separate personal prejudices from his professional duties.

In that respect, Truncale resembles Jeff Mateer, Trump’s previous nominee to the Eastern District of Texas. Mateer notoriously calledtransgender children part of “Satan’s plan.” (The White House eventually withdrew his nomination.) Like Mateer, Truncale was recommended to Trump by Texas Republican Sens. Ted Cruz and John Cornyn. Presumably, Cruz and Cornyn chose him because of his enduring support for the GOP: Truncale served on the executive committee of the Texas Republican Party from 2006 to 2014 and has donated nearly $7,000 to Cornyn’s campaigns over the past dozen years. (He also gave Cruz $1,000 in 2015.) Moreover, Truncale served as a Republican delegate for John McCain in 2008 and volunteered for the Trump campaign. (He has spent his legal career at the firm Orgain, Bell & Tucker, practicing civil defense and white-collar criminal defense.)

Cornyn and Cruz might’ve hoped that Truncale would prove to be less controversial than Mateer. But he is likely to face tough questions at his hearing next week, as Democrats and some Republicans have lost their patience with openly biased nominees.

[Slate]

Trump’s latest nominee for district judge is not sure about desegregation

Wendy Vitter is Trump’s latest nominee for district judge in Louisiana. Her nomination is highly controversial, and not only because the counsel for New Orleans’ Catholic archdiocese has only ever judged one federal case, over two decades ago. During her confirmation hearing, Vitter also made waves by refusing to discuss certain established US civil rights.

Yesterday, Vitter was questioned by lawmakers about her long-held anti-abortion and anti-contraception views. The nominee refused to disavow false claims about birth control, hormonal contraceptives, and abortion that she has made in the past: In 2013, while leading a panel titled “Abortion Hurts Women” Vitter claimed that that oral contraceptives can be linked to adultery and a promiscuous lifestyle that can expose women to increased risk of “violent death.” At the same panel, she encouraged anti-abortion doctors to offer brochures claiming that abortion causes cancer—a statement for which there is no scientific evidence. At a 2013 rally against Planned Parenthood, she falsely claimed that the organization “kills 150,000 female a year.”

If confirmed as a judge, Vitter could end up deciding cases invoking the right to abortion provided by the Supreme Court’s historic decision in Roe v Wade. Based on past statements, her stance on abortion and birth control could threaten Louisiana women’s access to birth control and abortion, in a state where there are only three abortion providersleft.

But while the judge nominee’s antagonism towards reproductive rights was known ahead of the hearing, another civil rights wrinkle emerged during her confirmation hearing. Asked whether Vitter supports the Supreme Court 1945 decision on Brown vs Board of Education, which ended the racial segregation in schools, she responded that she would “get into a difficult area” by commenting on SCOTUS decisions which, she says, though correctly decided, “she may disagree with.”

However, Vitter did say that as district judge she would set aside her own “personal, political and religious views” to respect the Supreme Court’s legal precedent.

“It is binding,” Vitter says, “I would be bound by it and of course I would uphold it.”

[Quartz]

Trump presses GOP to use “nuclear option” and change Senate rules for judicial nominees

The Trump administration is putting pressure on Senate Republicans to crack down on Democratic efforts to delay its agenda, fueling talk about the need for rules reform among Republicans on Capitol Hill.

Republicans are in discussions with Democrats about bipartisan changes to Senate rules to speed up consideration of President Trump’s judicial and executive branch nominees, but if that effort flounders — as similar ones have in the past — they’re not ruling out unilateral action.

White House patience with the Senate’s backlog of nominees is wearing out, as Vice President Pence made clear during a private meeting with the Senate Republican Conference on Tuesday, according to lawmakers who attended the discussion.

White House legislative affairs director Marc Short on Friday accused Senate Minority Leader Charles Schumer (D-N.Y.) of “weaponizing” the rules to keep executive and judicial branch positions vacant.

Short noted that Democrats have required Republicans to hold 79 cloture votes on nominees during Trump’s first 14 months in office.

“That’s roughly five times the number of the last four administrations combined,” he said.

A cloture vote ends dilatory action on a bill or nominee and is often used to end filibusters. It requires 60 votes to pass.

During the first 14 months of the past four administrations — a span of 56 months under Presidents Obama, George W. Bush, Clinton and George H.W. Bush — the Senate held 17 such votes, according to Short.

He promised that Trump would begin to speak out aggressively in response to what he called “historic obstruction.”

“I think that perhaps I’m a warm-up act for him making a larger foray into this,” Short told reporters.

He said Trump would “make his case to the American people that the objection has gotten ridiculous.”

A spokesman for Schumer on Friday blamed the administration and Senate Republicans for the backlog of nominees.

“This administration has been historically slow in submitting nominations and has withdrawn more nominees in the first year than any of the past four administrations,” said the Schumer aide.

The Democratic aide also noted there are currently 145 nominees awaiting action from Republican-controlled committees.

Trump has withdrawn more than 20 nominees and failed to submit nominations for State Department posts such as the ambassadorships for Cuba, Egypt, Honduras, Iceland, Ireland, Saudi Arabia, South Africa and Sweden.

Senate Republicans are reaching out to Democrats in hopes they might agree to changing the Senate rules to shorten the amount of time it takes to process nominees.

Sen. James Lankford (R-Okla.) is spearheading that effort.

“We’re desperately behind on judges and noms,” Lankford told The Hill. “We’ve had a cloture vote 80 times. That’s more than the last four presidents combined.”

A Republican aide said Lankford “has had some positive private conversations about this with Democrats, many of who realize that this trend is really, really bad.”

But such bipartisan efforts have fallen short in the past, prompting speculation among some GOP senators that changing the rules with 51 votes — a controversial tactic known as the “nuclear option” — may be the only way to get something done.

“We need to reduce the amount of post-cloture time for nominees. The amount of time we now spend is ridiculous,” said one GOP senator who requested anonymity to discuss Tuesday’s conversation with Pence.

Senate rules require 30 hours to elapse on the floor once the Senate votes to end dilatory debate on a nominee, which empowers the minority party to eat up the calendar by refusing to yield back time.

The use of the nuclear option — which Senate Majority Leader Mitch McConnell (R-Ky.) employed last year to eliminate the Democrats’ power to filibuster then-Supreme Court nominee Neil Gorsuch — wouldn’t likely happen until the next Congress.

Republicans control only 51 seats and Sen. John McCain (R-Ariz.), who is undergoing treatment for brain cancer, hasn’t voted since early December, reducing their effective majority to 50.

A single GOP defection would scuttle any attempt to change Senate precedent through a ruling of the chair, which needs to be sustained by a majority vote.

Republicans, however, hope to expand their majority. Sen. Cory Gardner (R-Colo.), chairman of the National Republican Senatorial Committee, pointed to an Axios poll this week showing that if the election were held today, Republicans could capture as many as five Democratic-held seats.

In a Wall Street Journal op-ed published in August, Lankford argued for shrinking the amount of time required to elapse after cloture has been filed on executive nominees from 30 hours to eight or less.

He pointed out that the Senate adopted this expedited process for a short time in 2013 under then-Senate Majority Leader Harry Reid (D-Nev.), who also invoked the nuclear option to eliminate filibusters for executive branch nominees and judicial nominees below the level of the Supreme Court.

“It worked then and it would work now,” Lankford said.

There is strong support among junior Republican senators for changing the rules.

“The intention of the original filibuster and cloture was to allow for extended debate of issues, not for obstruction of a party’s administration by delaying of nominee votes, so Sen. Perdue would like to see these rules changed,” said Caroline Vanvick, a spokeswoman for Sen. David Perdue (R-Ga.).

Democrats argue that Republicans slow-walked Obama’s nominees once they gained control of the Senate.

Senate Republicans forced cloture votes on 168 of Obama’s nominees in 2015 and 2016, even though 62 of those nominees were later confirmed unanimously or by voice vote.

Democrats also argue that McConnell broke Senate tradition under Obama by holding up his nominee to the Supreme Court, Judge Merrick Garland, for 10 months, until Trump took office.

The action left the high court shorthanded for most of 2016.

[The Hill]

 

Trump judge nominee, 36, who has never tried a case, wins approval of Senate panel

Brett J. Talley, President Trump’s nominee to be a federal judge in Alabama, has never tried a case, was unanimously rated “not qualified” by the American Bar Assn.’s judicial rating committee, has practiced law for only three years and, as a blogger last year, displayed a degree of partisanship unusual for a judicial nominee, denouncing “Hillary Rotten Clinton” and pledging support for the National Rifle Assn.

On Thursday, the Senate Judiciary Committee, on a party-line vote, approved him for a lifetime appointment to the federal bench.

Talley, 36, is part of what Trump has called the “untold story” of his success in filling the courts with young conservatives.

“The judge story is an untold story. Nobody wants to talk about it,” Trump said last month, standing alongside Senate Majority Leader Mitch McConnell (R-Ky.) in the White House Rose Garden. “But when you think of it, Mitch and I were saying, that has consequences 40 years out, depending on the age of the judge — but 40 years out.”

Civil rights groups and liberal advocates see the matter differently. They denounced Thursday’s vote, calling it “laughable” that none of the committee Republicans objected to confirming a lawyer with as little experience as Talley to preside over federal trials.

“He’s practiced law for less than three years and never argued a motion, let alone brought a case. This is the least amount of experience I’ve seen in a judicial nominee,” said Kristine Lucius, executive vice president of the Leadership Conference on Civil Rights.

The group was one of several on the left that urged the Judiciary Committee to reject Talley because of his lack of qualifications and because of doubts over whether he had the “temperament and ability to approach cases with the fairness and open-mindedness necessary to serve as a federal judge.”

Some conservatives discount the ABA’s rating. “The ABA is a liberal interest group. They have a long history of giving lower ratings to Republican nominees,” said Carrie Severino, counsel for the Judicial Crisis Network, which supports Trump’s nominees. She said past liberal nominees have been rated as qualified even if they had little or no courtroom experience.

Talley does have some other qualifications, some traditional, others less so. He grew up in Alabama and earned degrees from the University of Alabama and Harvard Law School. He clerked for two federal judges and worked as a speech writer on the presidential campaign of Mitt Romney. And, like many people who eventually became federal judges, he became the protege of someone who became a senator.

In Talley’s case, the mentor was Republican Sen. Luther Strange, the former Alabama state attorney general who was appointed to the Senate in January to replace Jeff Sessions, who left the Senate to become U.S. attorney general. Talley worked for Strange as a deputy.

Typically, senators play the lead role in recommending nominees for the federal district judgeships in their state. Talley also had something of an inside track. This year, when Sessions moved to the attorney general’s post, Talley took a job in the Justice Department’s office that selects judicial nominees.

Trump and McConnell have succeeded in pushing judicial nominees through the Senate because the Republicans have voted in lockstep since taking control of the chamber in 2014.

When Trump took office in January, there were more than 100 vacant seats on the federal courts, thanks to an unprecedented slowdown engineered by McConnell during the final two years of President Obama’s term. The Senate under GOP control approved only 22 judges in that two-year period, the lowest total since 1951-52 in the last year of President Truman’s term. By contrast, the Senate under Democratic control approved 68 judges in the last two years of George W. Bush’s presidency.

The best known vacancy was on the Supreme Court. After Justice Antonin Scalia died in February 2016, McConnell refused to permit a hearing for Judge Merrick Garland, President Obama’s nominee. Trump filled the seat earlier this year with Justice Neil M. Gorsuch.

The Alliance for Justice, which tracks judicial nominees, said Trump’s team is off to a fast start, particularly when compared with Obama’s first year. By November 2009, Obama had made 27 judicial nominations, including Justice Sonia Sotomayor. Trump has nominated 59 people to the federal courts, including Justice Gorsuch. That’s also a contrast with Trump’s pace in filling executive branch jobs, where he has lagged far behind the pace of previous administrations.

Liberal advocates are dismayed that Republicans have voted in unison on Trump’s judges.

“So far, no one from his party has been willing to stand up against him on the agenda of packing the courts,” said Marge Baker, vice president of People for the American Way.

Last month, when the Judiciary Committee held a hearing on several other nominations, Sen. Dianne Feinstein (D-Calif.) asked Talley about his fervent advocacy of gun rights. In a blog post titled a “Call to Arms,” he wrote that “the President and his democratic allies in Congress are about to launch the greatest attack on our constitutional freedoms in our lifetime,” referring to Obama’s proposal for background checks and limits on rapid-fire weapons following the shootings at Sandy Hook Elementary School in Newtown, Conn.

“The object of that war is to make guns illegal, in all forms,” Talley wrote. The NRA “stands for all of us now, and I pray that in the coming battle for our rights, they will be victorious,” he added.

A month later, he reprinted a “thoughtful response” from a reader who wrote: “We will have to resort to arms when our other rights — of speech, press, assembly, representative government — fail to yield the desired results.” To that, he wrote: “I agree completely with this.”

When pressed, he told the senators he was “trying to generate discussion. I wanted people to be able to use my blog to discuss issues, to come together and find common ground.”

In a follow-up written question, Feinstein asked him how many times he had appeared in a federal district court.

“To my recollection, during my time as Alabama’s deputy solicitor general, I participated as part of the legal team in one hearing in federal district court in the Middle District of Alabama,” he replied.

On Thursday, the Judiciary Committee approved White House lawyer Greg Katsas on a 11-9 vote to serve on the U.S. Court of Appeals for the District of Columbia, and then approved Talley on another 11-9 vote. The nominations now move to the Senate floor, where a similar party-line result is expected.

[Los Angeles Times]