Whatever criticisms conservatives have of Donald Trump’s presidency to date, he has not disappointed at all when it comes to judicial nominations. Justice Gorusch is the most obvious example, but we can cite others, including the two nominees for the United States Courts of Appeals, Joan Larsen (Sixth Circuit) and Amy Barrett (Seventh Circuit), whose hearings occurred this week.
Today, the president hit another home run — indeed, I would say a grand slam — when he nominated Greg Katsas for the United States Court of Appeals for the District of Columbia. Our friend Shannen Coffin offers this summary of Katsas’ career:
Katsas, who currently serves as deputy White House counsel, has a legal résumé that would be difficult to match. An executive editor of the Harvard Law Review during his law-school years, Katsas clerked on the Third Circuit and D.C. Circuit Courts of Appeals. He then followed his then-boss Judge Clarence Thomas to the Supreme Court, clerking for Justice Thomas in his first term on the high court.
Katsas then spent a decade in private practice for a prestigious law firm in Washington, D.C., before joining the Justice Department in the early days of the George W. Bush administration. There, Greg oversaw the appellate section of the Justice Department’s Civil Division, where he argued dozens of the most challenging and important appeals facing the Bush administration — cases involving the defense of the homeland in the aftermath of September 11, challenges to the president’s prosecution of the war on terrorism, and the federal ban on partial-birth abortion, and many more cases involving critical constitutional principles.
Katsas served the entire eight years in the Bush administration, eventually being appointed as assistant attorney general in charge of the Civil Division.
In both government and private practice, Katsas has argued cases before the Supreme Court — he was one of the lawyers who argued the landmark challenge to Obamacare in National Federation of Independent Business v. Sebelius — and in every U.S. court of appeals. In all, he has argued more than 75 appeals.
Shannen worked closely with Katsas in the Bush Justice Department. He says of his former colleague:
Katsas has a temperament and work ethic that will make him a top-notch judge. Quite simply, nobody worked harder than Katsas at the Justice Department. I certainly didn’t; he was there when I got to work and at his desk when I headed home.
Every significant brief filed by the Civil Division in the courts of appeals, and there were a lot of them, bore his stamp. Over the years, I’ve told many a lawyer that there was no one better on the legal briefs — in both writing and legal analysis — than Katsas. And that is no faint praise, given that I have worked with some of the best lawyers of my generation.
As for his view of the law and the judiciary, this statement by Shannen echoes what I’ve heard from others whose judgment I also trust (I don’t know Katsas personally):
Most important, a Judge Katsas would have a consistent judicial philosophy, one in line with Trump’s promises. Katsas understands that the courts’ role is a simple one — to decide cases, not to dictate policy. Like Justice Gorsuch, with whom he worked closely at the Department of Justice, Katsas understands the critical role that constitutional and statutory text play in deciding those cases. And he recognizes the importance of the original understanding of the founders in interpreting that text. Judge Katsas will be a welcome addition to a court that was packed by with liberal jurists by President Obama.
You can find out more about Greg Katsas at this site that has been set up to assist in the confirmation battle.
And it will be a battle. The D.C. Circuit is America’s second most important court and Katsas’s approach to the law will not sit well with the left.
His opponents will make much of the fact that, as noted, he currently serves as deputy counsel to the president in the White House Counsel’s Office. Expect the left to use this as an excuse to find out what legal advice the White House Counsel’s Office has been providing the president. When the administration resists, as it should, on the grounds of privilege, expect this to become a pretext for obstructing and ultimately voting against this extraordinary well-qualified nominee.
Along the same lines, expect the Democrats to use the confirmation process to put the Trump administration’s legal team on trial. This will be just one of the scorched earth tactics we likely will see from Democrats, goaded on by left-wing interest groups.
The Democrats can be expected to oppose Katsas with unanimity or something very close to it. Thus, the GOP will not be able to afford more than one or two defectors (depending on Sen. McCain’s health).
I hope President Trump can avoid taking needless, alienating shots at Republican Senators long enough to get Greg Katsas confirmed.