LAW

'Elections matter': Trump's judicial picks on a roll

Correction appended.

President Trump's rapid reshaping of the federal circuit courts has emboldened conservatives and alarmed environmentalists and their allies in Congress.

By the end of last year, the Senate had confirmed a dozen of Trump's circuit court picks, the most of any president since Congress passed the 1891 Judiciary Act creating the circuit courts.

Senate Majority Leader Mitch McConnell (R-Ky.) kept up the quick pace this year: The Senate this week voted to confirm the 18th, 19th, 20th and 21st of Trump's circuit court picks.

"That means that one-eighth of the circuit judges in America have been appointed by Donald Trump and confirmed by this Republican Senate," McConnell said this week.

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In contrast, the Senate had confirmed just nine of President Obama's appeals court judges by the middle of May 2010, more than a year into his term.

"Elections matter," Sen. Lindsey Graham (R-S.C.) said. "One of the prizes of winning the presidency is appointing judges of one philosophy or another. I think the judges we're appointing are going to be conservative alternatives to what Obama appointed."

But greens fear Trump will leave the courts tilted against environmental protections. Because the Supreme Court takes up so few cases a year — around 80 out of thousands of petitions — circuit court judges are often the last word on matters of law.

"There really is the potential for circuit courts to reach a tipping point," said Glenn Sugameli, an environmental attorney who tracks judicial nominees, "where you have enough ideological, right-wing, pro-polluter judges on those courts that you could have two of them on a panel and come up with a decision that would be absolutely contrary to the Constitution, contrary to statute and disastrous for the environment."

Progressive groups say there are troubling signs that some of Trump's circuit court picks are bearing out concerns that they'll push right-wing agendas while on the bench. They've pointed to cases on age discrimination, employee firing and money in politics.

Fifth Circuit Judge James Ho, for example, penned a dissent in a recent case on campaign contributions that included what some saw as unnecessary commentary about the state of American politics.

"But if you don't like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter," wrote Ho, who was confirmed to the bench in December. "When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen's prerogative — it becomes a human necessity."

But it's too early to point to any clear trends in how Trump's circuit court judges have approached environmental matters while actually on the bench, said Carl Tobias, a law professor at the University of Richmond who tracks judicial nominees. Environmental litigation makes up only a portion of a judge's entire docket, and it can take years for a case to be decided.

"Some of them haven't even written opinions yet," Tobias said. "Unless you get some kind of record and data and they've had enough cases and written enough opinions, you just can't tell very much."

Bad for the environment?

For environmental law, the U.S. Court of Appeals for the District of Columbia Circuit is especially important because it hears most cases concerning national environmental regulations. It hears, for example, almost all cases over EPA regulations issued under the Clean Air Act.

Trump's appointee, Gregory Katsas, has proved to be a vocal and engaged addition to the court, but he has yet to write an opinion in an environmental case.

The 9th U.S. Circuit, the largest judicial circuit by geography and population, also often decides endangered species, water rights and public lands issues.

But other circuit courts also occasionally hear environmental cases. Judges in the Virginia-based 4th and Ohio-based 6th circuits, for example, are currently deciding hot-button cases on groundwater contamination from coal-ash pits.

Trump has been especially successful appointing conservative judges to the New Orleans-based 5th Circuit, which hears cases involving the region's oil and gas industry. The Senate has so far confirmed four of Trump's nominees to the court.

Many of the nominees have been active members of and supported by the conservative Federalist Society. But only some have had direct experience in environmental and energy law prior to their nominations.

Joel Carson, who was confirmed this week to the 10th Circuit, has been a part of many lawsuits at the intersection of fossil fuel extraction and property rights. John Nalbandian, whom the Senate confirmed this week to the 6th Circuit, is a veteran of toxics and cleanup cases.

Sen. Tom Carper (D-Del.), the ranking member on the Senate Environment and Public Works Committee, said that it's hard to judge how Trump's picks will rule on environmental issues.

"A lot of them we have no record of where they stand on environmental issues, so sometimes it's shooting in the dark," he said.

Greens and progressives, however, have raised concerns that a few nominees specifically have worrisome advocacy histories. And they say that issues are crosscutting.

So, for example, if a nominee hadn't worked in environmental issues but had advocated for or tended to favor corporations in other legal contexts, they say that person will likely rule in favor of big polluters while on the bench.

Sen. Sheldon Whitehouse (D-R.I.), a senior member of both the Judiciary and Environment and Public Works committees, told E&E News in an interview this week that Republican special interests have been "steamrolling" judicial nominees through the Senate.

"If you look at the right-wing groups behind the effort to pack these courts, a lot of that comes out of the fossil fuel industry," said Whitehouse, specifically citing the influence of the Koch brothers, coal interests and Exxon Mobil Corp.

Whitehouse said the picks have an impact on how various environmental laws are interpreted, but he said that in many instances, conservative judges can "close off" the courts to even taking up cases related to environmental law violations.

"The main strategy is to keep them out of the courtroom. If you are a polluter, you want to be in Congress where money and influence can control outcome," Whitehouse said.

He added that more conservative courts could limit environmentally related tort claims and make it harder for stringent federal environmental standards to take precedence over more slack state laws.

Whitehouse said the recent judicial hearings have become a "Kabuki theater in which the witnesses are trained to give these scripted and formulaic answers we have heard again and again."

He said committee members are often aware of extreme statements nominees have made in advance of hearings, but that Democrats lack the votes to derail the picks.

Democrats and environmentalists also say that the Judiciary Committee's pace makes it hard to properly vet the president's choices.

Senate Judiciary Chairman Chuck Grassley (R-Iowa) has so far held four hearings in which two or more of Trump's circuit court nominees have appeared. During the Obama administration, according to Senate Democrats, only three hearings featured multiple nominees for appeals courts.

Sugameli, who founded the Judging the Environment project, said that the rapid pace means senators can't adequately "make sure somebody is not confirmed before disqualifying information is revealed."

"The only way to ensure that happens is to not have two or three circuit court nominees in a hearing, and to not have six in a week on the floor, and to not have this crazy pace they're having right now, where they're just ramming people through," he said.

Whitehouse said he is specifically worried about "extremist" statements made by 5th Circuit nominee Andy Oldham, who said the very idea of the EPA is "enraging."

Oldham tried to downplay those statements at his confirmation hearing last week, saying they were made while working for the state of Texas and do not reflect his personal views.

Whitehouse, who raised the issue with Oldham at the hearing, said his response was insufficient and he would vote against the nomination.

Sen. Richard Blumenthal (D-Conn.), who is a member of the Judiciary Committee, also raised concerns about Oldham's past statements. He accused the White House of outsourcing its judicial nomination process to "the far-right fringe of the Republican Party."

"They are Neanderthals in their approach [to a range of issues, and] the environment is one of them," he said, adding, "The Republicans are weaponizing the federal judiciary against environmental protection and reproductive rights and consumer protection and even civil liberties protections."

Blue slips

With a few exceptions, most of the new circuit court judges have barely squeaked through the Senate, garnering minimal — if any — Democratic support.

Only one Republican senator has cast a vote against a nominee: Sen. John Kennedy (R-La.) last year voted against Gregory Katsas for the D.C. Circuit. Katsas was confirmed on a 50-48 vote.

"There's a lot of discipline on the Republican side," Tobias of the University of Richmond said. "So even though it's close — 51-49, 52-48 — they're not losing any people. So it's very difficult for the Democrats to do much."

The long-simmering partisan tensions over the judges reached a head last week as the Senate went ahead with nominees above the objections of home-state senators.

In the past, they have been able to block judicial nominees from advancing by not returning a blue slip of paper to the Judiciary Committee. But Grassley last year decided he would go forward with hearings for circuit court nominees regardless of whether home-state senators had returned their blue slips.

Last week, the Senate voted 49-46 to confirm Michael Brennan to the 7th Circuit, even though Wisconsin Democratic Sen. Tammy Baldwin did not return her blue slip.

Grassley has argued that blue slips weren't meant to act as a "veto" on a president's judicial nominees.

But during the Obama administration, Republicans used the process to block 18 judicial nominees, according to a report released last week by Senate Democrats. Wisconsin Republican Sen. Ron Johnson, in fact, blocked the nominee for the 7th Circuit seat Brennan will now fill.

The next big partisan fights are brewing over nominees to the 9th Circuit. The 9th Circuit's seven vacancies represent a real opportunity for Trump to shift the traditionally liberal court to a more conservative bent.

Democrats are gearing up for the fight. They objected to Grassley's decision to last week to hold a hearing for Ryan Wesley Bounds. Neither of Oregon's Democratic senators returned a blue slip for Bounds, because they believed he had withheld controversial writing from his college days from the state's bipartisan judicial nominating commission.

And California Democratic Sens. Dianne Feinstein and Kamala Harris — both members of the Judiciary Committee — fired a warning shot last week on 9th Circuit nominees from their state. They said they recommended three candidates to the White House who are "well-regarded by their local bench and bar," and urged the Trump team to choose from among the individuals.

"Over the past several weeks, we've seen a concerted effort from our Republican colleagues in the Senate to undermine the bipartisan tradition of cooperation with home-state senators in the judicial nominations process, most recently going so far as to say that blue slips for California nominees to the Ninth Circuit may not be honored," Feinstein and Harris said.

'Willing to call balls and strikes'

Even Kennedy, the Louisiana Republican, complained last year about the judicial nomination process, saying that White House Counsel Don McGahn strong-armed him into accepting the nomination of former Louisiana Solicitor General Kyle Duncan for the 5th Circuit. Kennedy, however, would go on to eventually support the nomination.

Of Republicans, Kennedy has been the most critical of Trump's judicial nominees. He voted against Katsas for the D.C. Circuit because he said he worried that the candidate, who worked at the White House prior to his nomination, would be handling litigation over issues on which he has advised the president.

Unlike most Republican members who have stuck to softball questions, Kennedy has asked pointed questions at confirmation hearings in the Senate Judiciary Committee.

It was his questioning, in fact, that led D.C. district court nominee Matthew Petersen to withdraw late last year. In an exchange that quickly went viral, Peterson could not answer a series of basic legal questions that Kennedy posed.

"I am looking for judges that are experienced, intelligent, willing to call the balls and the strikes, and they're not haters," Kennedy told E&E News. "I don't want to put someone on the bench who is angry about a person or a group of people or an issue."

Graham last week said he already worried that changing the rules opened the door for more "ideologues" to end up on the federal courts.

"What I worry about [with] the rules change is we are going to have more ideological people," he said. "When you have to reach across the aisle to get a few votes, you get less ideological people."

Some Republicans, however, have slammed Democrats for insisting on 30 hours of floor debate for most judicial nominees, preventing the chamber from considering other business.

In an interview last week, Sen. John Cornyn (R-Texas) accused Democrats of "unprecedented foot-dragging and obstruction."

To be fair, not every circuit court nominee has brought on partisan fights. Both Senate Minority Whip Dick Durbin (D-Ill.) and Sen. Tammy Duckworth (D-Ill.) say that they were adequately consulted about the nominations of Michael Scudder and Amy St. Eve to the 7th Circuit. Both nominees garnered at least 90 votes this week on the floor.

And both of Hawaii's Democratic senators have also praised the nomination of former Hawaii Republican Attorney General Mark Bennett to the 9th Circuit, whom the Judiciary Committee sent to the floor last week.

'You are going to regret this'

As for blue slips, Republicans say Democrats dug their own grave by ending the filibuster for judicial nominations.

In order to overcome Republican opposition for Obama's nominees to the D.C. Circuit, then-Senate Majority Leader Harry Reid (D-Nev.) invoked the so-called nuclear option in November 2013 to lower the threshold for judicial nominees from 60 votes to 50.

"I remember saying, 'You are going to regret this,'" Sen. Ted Cruz (R-Texas) said. "Senate Democrats did not blink, they did not hesitate, but they happily changed the rules. Well, time has a way of catching up with you."

Still, for Democrats, the strategy of ending the filibuster paid off. Obama left the court with an 8-4 liberal tilt among active judges, a breakdown that has not shifted with Trump's appointment of Katsas, since he replaced retired Judge Janice Rogers Brown, one of the D.C. Circuit's most conservative judges.

Obama's success in filling the D.C. Circuit means the court may now be the best bulwark against the Trump administration's efforts to roll back environmental regulations.

Sugameli said that environmentalists don't think Democrats made a mistake by killing the filibuster for judicial nominees.

"Even if the Democrats had not done that then, the Republicans would have done it now," he said. Last year, Republican leadership abolished the 60-vote threshold for Supreme Court picks in order to confirm Justice Neil Gorsuch to the court.

Whitehouse warned Republicans that they may end up paying a price by playing partisan politics with judicial nominees during the Trump administration.

Should the Oval Office or the Senate "move into other hands," the Rhode Island Democrat said, "I don't want to have colleagues coming and complaining to me that the seat they thought was the Texas seat or the Alabama seat or the Idaho seat on their respective circuit is not being given any interest as to their views.

"Everybody ought to be warned about where this leads."

'Do it yesterday'

Grassley last week said he intends to keep speeding judicial nominees through his committee through the end of the year.

"Our goal is five district judges and at least one circuit judge and possibly two every other Wednesday between now and Christmas," he said in an interview with MSNBC host Hugh Hewitt.

But while the Senate has moved swiftly on confirming influential appeals court judges, the number of district court nominees has backed up on the Senate floor.

Grassley last week said that he was "afraid" that "we don't get the district court people done."

"There's about 30 district court people on the agenda right now, and I have pleaded with McConnell to work nights, to work Saturdays and weekends, and put the pressure on the Democrats," Grassley said. "And we've got to have every Republican around and even cancel a recess so we can clear the calendar of these important nominees."

Republicans are also itching for another chance at placing a conservative on the Supreme Court before November's midterm elections.

"I just hope that if there is going to be a nominee, I hope it's now or within two or three weeks, because we've got to get this done before the election," Grassley said, adding that it typically takes a few months to confirm a new justice.

While Grassley did not call out any justices by name, there have long been rumors that Justice Anthony Kennedy is contemplating retirement. Kennedy, 81, is the court's moderate voice and often casts the deciding vote in consequential property rights and environmental law cases.

"My message to any one of the nine Supreme Court justices, if you're thinking about quitting this year, do it yesterday," Grassley said.

Correction: A previous version of this story misidentified Sen. Tammy Duckworth (D-Ill.).

Twitter: @apeterka Email: areilly@eenews.net

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