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Two years in, Trump’s appeals court confirmations at a historic high point

A historic number of vacancies in America's federal courts is giving Republicans the chance to put a soaring number of young, conservative judges on the bench. (Video: Jenny Starrs, Monica Akhtar/The Washington Post)
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President Trump has installed a historic number of federal appeals court judges for this point of a presidency, with 30 confirmed by the Senate after two years of his term.

His picks for the nation’s 13 circuit courts, one step below the Supreme Court, predominantly are male and less diverse than those tapped by his recent predecessors.

They also include younger nominees, which means Trump’s conservative imprint on the federal judiciary through sheer longevity will endure through cases involving state gun regulations, the environment, immigration and abortion.

The immediate effect on the composition of the courts is so far modest — and the rapid pace of change is unlikely to continue given a limited number of remaining open seats.

Trump’s nominees mostly add to conservative majorities on courts already dominated by judges picked by Republicans or narrow   the   margin on   more-liberal-leaning courts such as the San Francisco-based 9th Circuit, according to an analysis by judicial expert Russell Wheeler of the Brookings Institution.

A full flip would occur only at the appeals court in Philadelphia, if the president’s current nominees all are confirmed. Newly confirmed judges to the Atlanta-based 11th Circuit make that court evenly divided by judges nominated by Republicans and Democrats.

But while the shift in the balance nationally “is not as impressive as one might think,” Wheeler said, the long reach of Trump’s choices will be.

His nominees include a 36-year-old former clerk to Justices Clarence Thomas and Neil M. Gorsuch.

“When   Trump replaces   a 72-year-old slightly right-of-center judge with a 45-year-old conservative firebrand, it’s not really apples for apples,” Wheeler said.

Trump’s Supreme Court nominees, Brett M. Kavanaugh and Gorsuch, drew widespread attention for solidifying a more conservative majority on the nation’s highest court.

But while the justices resolved 69 cases in the term that ended in June, the 13 circuit courts handle tens of thousands of cases each year. That makes the appeals courts the last word in most matters affecting residents of the states they cover.

The regional circuits take appeals from the lower federal courts, and the appeals bench often is a steppingstone for the candidates presidents consider for the Supreme Court. All but one of the current justices, Elena Kagan, served on a circuit court.

The Senate Judiciary Committee’s new chairman, Lindsey O. Graham (R-S.C.), has moved quickly, holding votes earlier this month to confirm a half-dozen appeals court nominees.

“I’m going to make sure that we can appoint as many well-qualified conservatives on Trump’s watch as possible,” Graham said in a Feb. 6 speech to the Federalist Society. “When it comes to judges, younger is better than older. When it comes to judges, well qualified is better than not well qualified.”

But it isn’t clear how many more vacancies Trump will get a chance to fill, because openings turn on judges retiring, resigning or otherwise leaving.

Judges nominated by Democratic presidents may be less inclined to step down if it means giving Trump an opportunity to name their successors.

“Especially given the intensity of opposition in many quarters to President Trump, it’s even less likely than usual that you would expect voluntary retirements from Democratic appointees,” said conservative legal commentator Ed Whelan, president of the Ethics and Public Policy Center.

Remaking the appeals courts is a long game.

“It takes more than two years of strong appointments to begin to transform the courts,” Whelan said.

Trump to inherit more than 100 court vacancies, plans to reshape judiciary

There is no shortage of jurists who could leave or create an opening by shifting to a lighter workload known as “senior status.” At least 60 of the 167 circuit judges are eligible because of a combination of their age — at least 65 — and years of service on the bench, according to Wheeler’s analysis of Federal Judicial Center data.

But the decision to step down is highly personal and hard to predict. The party of the president in power may be one among many considerations.

“That might be one factor, but it is not the controlling factor,” said J. Harvie Wilkinson III, 74, and the longest-serving judge on the Richmond-based appeals court, who was nominated by President Ronald Reagan.

At the U.S. Court of Appeals for the 4th Circuit where Wilkinson sits, Trump added two judges who are already hearing cases. Jay Richardson is a former assistant U.S. attorney who led the prosecution of Dylann Roof, convicted in 2016 of killing nine black parishioners in a Charleston church.

A. Marvin Quattlebaum Jr. practiced law in South Carolina before Trump initially picked him to serve on the District Court in August 2017. The president elevated Quattlebaum to the 4th Circuit less than a year later.

Richardson and Quattlebaum received bipartisan backing in the Senate and well-qualified ratings from the American Bar Association.

A third nominee, Allison Rushing, has proved more controversial, with the committee voting along party lines Feb. 7 to confirm her nomination. The former clerk to Thomas and Gorsuch, during Gorsuch’s tenure on the Colorado-based 10th Circuit, would be the youngest appeals court judge at age 36, if confirmed. A partner at Williams & Connolly, Rushing’s nomination is opposed by civil rights groups concerned about her work as a legal intern for the Christian conservative legal nonprofit Alliance Defending Freedom.

The organization recently represented the Colorado baker who refused to create a wedding cake for a same-sex couple because of his religious beliefs and brought a case that allowed corporations to opt out of covering contraceptives through their employee health plans based on religious objections.

In response to written questions from senators, Rushing said as a judge she would “faithfully follow” Supreme Court precedent. As to her relative youth, Rushing cited her “extensive” relevant experience as a clerk and attorney in private practice for the last eight years.

If Rushing goes to the 4th Circuit, the makeup of the court that hears appeals from Maryland, Virginia, West Virginia and the Carolinas will remain steady, with judges appointed by Democrats still outnumbering those appointed by Republicans. There are unlikely to be additional openings any time soon, said Wilkinson, who described the bench as “fairly stable.”

“I’m not going anywhere,” Wilkinson said.

There’s a word that no longer describes the federal appeals court in Richmond

When Trump took office in January 2017, he inherited a large number of court openings, including 17 on the federal appeals bench. Senate Majority Leader Mitch McConnell, during the last two years of the Obama administration, had slow walked nominations. Most notably, the Senate refused to hold a hearing for Obama’s Supreme Court nominee Merrick Garland, chief judge of the D.C. Circuit in Washington, to replace the late Justice Antonin Scalia.

McConnell and the White House Counsel’s Office, led until recently by Donald McGahn, made the confirmation of conservative judges a top priority.

The path from nomination to confirmation has been quick. Trump’s circuit court picks were confirmed after a median 146 days, compared to 229 for Obama’s nominees, even though Trump’s picks had to overcome more negative votes, Wheeler’s analysis shows.

With Senate Republicans gaining seats after the November election, it should be even easier to confirm Trump’s picks.

Once current vacancies are filled, Republican nominees will account for 54 percent of all circuit judges, compared to 44 percent when Trump took office, Wheeler’s data shows.

Many of the president’s circuit nominees have impressive credentials, including Supreme Court clerkships, degrees from prestigious law schools and portfolios of legal scholarship. Most are members of the Federalist Society, the conservative and libertarian organization whose president, Leonard Leo, helped shape Trump’s list of high-court nominees.

The president’s early picks — Amul Thapar, Joan Larsen and Amy Coney Barrett — are on his shortlist for the Supreme Court should there be a third opening, according to the White House.

Conquerors of the Courts: Forget Trump’s Supreme Court picks. The Federalist Society's impact on law goes much deeper.

But some nominees haven’t had a smooth path and faced questions about their qualifications, affiliations and temperament.

The White House last summer withdrew the nomination of Ryan Bounds for the 9th Circuit after widespread criticism of his writings as a college student disparaging multiculturalism.

Two new judges on the Missouri-based 8th Circuit — Jonathan A. Kobes and L. Steven Grasz — were deemed “not qualified” by the American Bar Association.

Kobes, a former aide to Sen. Mike Rounds (R-S.D.), “has neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required” of a circuit judge, the association said in a letter to the Senate.

The ABA evaluators reviewing Grasz’s record and writings expressed concern that his “passionately-held social agenda appeared to overwhelm and obscure the ability to exercise dispassionate and unbiased judgment.”

Grasz, a former general counsel to the Nebraska Republican Party and deputy attorney general, described in an opinion for the state’s attorney general the “moral bankruptcy which is the legacy of Roe v. Wade,” the landmark abortion decision.

Both Grasz and Kobes were confirmed along party-line votes, with Vice President Pence breaking the tie to confirm Kobes in December.

The president’s pick to replace Kavanaugh on the D.C. Circuit, Neomi Rao, faced tough questions earlier this month about her work to roll back regulations as the Trump administration’s regulatory czar and for provocative columns she wrote as a college student.

A professor at George Mason University’s law school for more than a decade, Rao clerked for Wilkinson on the 4th Circuit and at the Supreme Court for Thomas, with whom she has co-taught a law-school course on the administrative state.

As head of the obscure but powerful Office of Information and Regulatory Affairs since 2017, Rao has advocated for smaller, less intrusive government and expressed concern about the unchecked power of federal agencies. She has pressed to eliminate regulations the Trump administration considers overly burdensome on business and is “pushing back the expansion of the administrative state,” she wrote in a column in The Washington Post.

Nan Aron of the liberal Alliance for Justice said in a statement that Rao’s nomination seems to “epitomize the Trump Administration’s slash-and-burn approach to deregulation” with the goal of “using the justice system to eviscerate a whole host of legal protections for Americans.”

Rao’s concerns about government agencies, and her view that the heads of those agencies should be subject to dismissal by the president, echo those of the judge she would replace on the D.C. Circuit. Kavanaugh cited one of Rao’s law review articles in his 2016 opinion finding the structure of the government’s consumer watchdog agency unconstitutional because it gives too much executive control to a “single, unaccountable, unchecked director.”

Anthony Johnstone, a University of Montana law professor who was Rao’s college and law school classmate, said her sharpest defense of executive power came in articles she wrote during the Obama administration.

Her views are “deeply principled, but not partisan,” Johnstone said. “She’s interested in institutions, not who holds those positions.”

Senators in both parties also pressed Rao at her confirmation hearing about controversial columns she wrote in the 1990s as a student at Yale. Rao, the daughter of Indian immigrants, denounced the “multicultural nightmare” on campus and, in a piece about date rape, suggested women share some blame for becoming victims if they drink to excess.

Neomi Rao pressed on past writings on date rape at hearing on her judicial nomination

“It has always seemed self evident to me that even if I drank a lot, I would still be responsible for my actions. A man who rapes a drunk girl should be prosecuted. At the same time, a good way to avoid a potential date rape is to stay reasonably sober,” Rao wrote in 1994.

Rao, 45, told the committee she regrets and cringes at some of the language she used as an undergraduate. She was trying to make a “common sense observation” and stressed that “nobody should blame the victim.”

In letters to the Senate backing Rao’s nomination, Yale classmates praised Rao for her “intellectual honesty, fairness and thoughtfulness,” even when they were on opposite sides of a debate.

Several Republican senators said Rao’s writing from 25 years ago is not disqualifying, and she received a “well qualified” rating from the American Bar Association. But Sen. Joni Ernst (R-Iowa), who recently disclosed that she was raped as a college student, said Rao’s columns “do give me pause.”

In a follow-up letter to the committee, Rao said she “particularly regret[s] the insensitivity demonstrated in my remarks on rape and sexual assault.” Ernst met privately with Rao after the hearing and said the conversation “allayed a lot of fears.”

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