Will Midterm Elections Upend Trump’s Plans for Federal Bench?

ANALYSIS: Republican senators move fast to fill vacant appellate court seats with jurists who won’t 'legislate from the bench,' but time could be running out.

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WASHINGTON — Seven months after President Trump nominated Kyle Duncan to serve on the Fifth Circuit Court of Appeals, the Louisiana native was finally confirmed by the Senate along a mostly party-line vote.

The lead counsel for Hobby Lobby’s groundbreaking legal challenge to the U.S. Department of Health and Human Services’ contraceptive mandate and a committed Catholic, Duncan faced intense pushback from Democratic senators and progressive activists.

“Remember the Hobby Lobby Supreme Court case where corporate bosses argued for the ability to block their employees’ access to birth control? The lead lawyer was Kyle Duncan,” said Sen. Kamala Harris, D-Calif., in one of many angry tweets that targeted Duncan.

Last week, Ryan Bounds, a federal prosecutor and Trump’s pick for a nominal Oregon seat on the Ninth Circuit, finally got a hearing before the Senate Judiciary Committee, after an eight-month wait.

Although Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, served on a selection committee that named Bounds as one of four highly ranked candidates for the Ninth Circuit spot, both ultimately opposed his nomination, citing “inflammatory” writings dating back to his undergraduate days at Stanford University in the early 1990s.

During his May 9 Senate hearing, Bounds was pummeled with questions about his college writings and his views on Roe v. Wade and other landmark rulings that have strong support from progressive lawmakers.

Bounds apologized for his “overheated” rhetoric. And supporters on the Judiciary Committee, including Sen. Ted Cruz, R-Texas, fought back, asserting that his legal record mattered most, and it was very strong.

If the Senate approves Bounds’ nomination, the vote will mark another win for Trump’s incremental campaign to transform the federal bench by nominating “originalist” or “texturalist” jurists who adhere to the Framers’ understanding of the U.S. Constitution and apply the law as written.

“The president laid down specific criteria” for selecting judicial nominees, said Leonard Leo, the executive vice president of the Federalist Society, an influential conservative legal organization, who helped compile a short list of top Supreme Court candidates for the White House.

“First, the nominee must be ‘well qualified,’ at the top of the legal profession,” Leo told the Register, recalling Trump’s stated priorities.

The president, he said, also wanted jurists who are “‘not weak,’ meaning someone who is not going to be swayed by the political and social fashions of the day and will have the independence and courage to do what is right.”

Further, the president is seeking nominees “who will interpret the Constitution the way the Framers wanted it to be interpreted, including the principles of originalism and textualism.”

Finally, the White House was eager to locate top candidates who were relatively young, and thus could serve for many years of a “lifetime” appointment.

“Mr. Trump’s tax reform, penchant for deregulation and foreign-policy direction could all be reversed by the next president,” noted The Economist in its analysis of the president’s plans for the federal bench.

“But because federal judges serve for life, the largely young conservatives whom Mr. Trump has placed on the bench will have an impact on American life and law that long outlasts his administration.”

Last year, Neil Gorsuch, a Denver-based judge on the U.S. Court of Appeals for the 10th Circuit, was on the short list for the Supreme Court seat left vacant by the unexpected death of Justice Antonin Scalia. And after Trump nominated Gorsuch, Leo shepherded the Colorado jurist through bruising Senate hearings.

Gorsuch’s confirmation marked a huge political victory for the president, who had promised social conservatives that he would choose jurists who upheld constitutional protections for religious freedom and free speech. And last June, when the high court issued its ruling on Trinity Lutheran Church of Columbia, Inc. v. Comer, and said the government cannot bar churches and other faith-based organizations from a state program simply because of their religious status, Gorsuch voted with the majority.

Trump could get a chance to place another originalist on the Supreme Court before his first term ends, with court watchers waiting for older members, including Justice Anthony Kennedy, to signal their plans for retirement.

But the Republican Party and social conservatives also have their eye on the appellate bench, which handles many more critical cases dealing with disputes over federal law than the high court.

“The judicial approach of judges appointed to the federal courts of appeals can have, to borrow a word from the president, ‘huge’ consequences for the development of the law — particularly the law governing religious liberty and life issues,” said Teresa Collett, a professor at the University of St. Thomas Law School in Minneapolis.

“On average, the Supreme Court will only hear about 80 cases a year. In contrast, during the 2017 calendar year, there were 49,816 appeals filed with the 12 federal courts of appeals, all of which must be heard and ruled on by the courts.”

Thus far, the Republican-controlled Senate has approved 15 appellate judges nominated by Trump — including Amy Comey Barrett, a Catholic mother of seven and a University of Notre Dame law professor — for the Seventh Circuit.

But as Capitol Hill gears up for the midterm elections, Republican lawmakers and activists fear they could lose the Senate — along with their power to secure the confirmation of the next crop of judicial nominations.

“There is little question that if the midterm elections go badly for the GOP and the Senate changes hands, that will certainly put a stop to court of appeals confirmations until the next presidential election, and that would be a serious issue,” said Leo.

“The Democrats are sufficiently exercised and unhappy,” he added, that they might effectively stall all future nominations to the appellate bench.

John Malcolm, a senior legal fellow at the Heritage Foundation, mostly agreed with Leo’s assessment, though his view was less stark.

If Democrats assume control of the Senate, Malcolm told the Register, “It would slow down the process [of confirming judges] considerably and might lead to more nominees being rejected.”

The party that leads the Senate “controls, to some extent, when a committee hears from nominees and the order and pacing of when things get scheduled on the Senate floor,” Malcolm said.

With the GOP’s control of the Senate in doubt, Senate Majority Leader Mitch McConnell of Kentucky has made judicial confirmations a “top priority.”

“I don’t think there’s anything we can do in the United States Senate that’s more important for America than confirming judges as rapidly as we get them,” McConnell told talk-show host Hugh Hewitt.

Four other appellate nominees await confirmation votes this week, but more than 20 circuit court seats are still vacant, along with many more district court spots, and activists who back the president’s agenda are frustrated.

Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network and a veteran of Supreme Court confirmation battles, blames the problem on procedural delays instituted by Senate Minority Leader Chuck Schumer, D-N.Y.

“It used to be easier to talk with [Democrat] moderates, and say, ‘You may not agree with everything the president does but you can support this judge,’” Severino, who blogs for National Review’s Bench Memos, told the Register.

Capitol Hill’s fractured political culture has made consensus elusive, and Democrat senators are now much less likely to cast their vote for a GOP nominee.

Justice Gorsuch was confirmed last year after Senate Republicans eliminated the 60-vote filibuster for high-court nominees, allowing him to be approved by a simple majority, 54-45. That tense standoff was partly the result of McConnell’s refusal in 2016 to schedule a vote for Judge Merrick Garland, President Obama’s third nominee for the high court.

With the midterm elections around the corner, the Judicial Crisis Network (JCN) has launched a $1-million television ad campaign to expose what Severino describes as the Senate Democrats’ campaign of obstructionism, a strategy that has stalled hearings and votes on Trump’s judicial nominees.

Democrats, for their part, have founded a new organization, Demand Justice, that will counter JCN’s media campaign and confirmation strategy and is amassing a war chest of $10 million.

Demand Justice “wants to instill the same kind of zeal in progressives when it comes to the courts, to make the argument that in the current political environment, it is the federal courts that are the final authority on issues important to progressives such as immigration, abortion, gay rights, social policy, the environment and corporate power,” according to a New York Times story on the new group.

Meanwhile, the White House and the Federalist Society will continue to bring more jurists into the pipeline for appellate and district court seats.

On May 10, the White House announced another wave of judicial picks, including Ryan Nelson for the U.S. Court of Appeals to Ninth Circuit, which has blocked the president’s travel ban and his effort to bar federal funds for sanctuary cities.

And while some social conservatives want more assurance that originalists or texturalists will rule to restrict abortion rights, and even overturn Roe v. Wade, Leo, a Catholic lawyer who is the father of seven children, is eager for the public to develop a deeper appreciation for the value of originalist jurisprudence.

“The most important way of preserving the worth and dignity of every human person is to have people in public office who understand that it is essential to respect the structural constraints on government power,” said Leo.

“You want judges who understand that their role is limited. … If you destroy those constraints, if you eliminate the separation of powers, the checks and balances, the limits on judicial power, no one is safe.

“What brought us Roe v. Wade,” he said, “was basically a failure to respect” these constraints.

There is no guarantee, he noted, that an originalist or texturalist will necessarily get the abortion issue correct.

“The gains we make in the life areas will be the result of cultural and social change,” he predicted, noting the rising pro-life tide. “That is why it is important to have originalist judges who understand that they have a duty to respect the constitutional system that limits government power, that gives social and cultural institutions the space they need to change peoples’ hearts and minds.”

Joan Frawley Desmond is a Register senior editor.