Adam Liptak of the New York Times reports on the slate of conservatives President Trump is about to nominate to federal courts of appeals. Jonathan Adler of the Volokh Conspiracy has this to say about the nominees, who are expected to be announced tomorrow:
The nominees make up an impressive list of highly respected jurists, attorneys and legal thinkers. Those of us who doubted Trump would take judicial nominations seriously may have some crow to eat. Especially when one looks at the names to be announced for appellate court vacancies, this is as strong a list of nominees as one could hope for.
Among the nominees to be announced tomorrow are two state supreme court justices Trump had identified as potential U.S. Supreme Court nominees: Justice Joan Larsen of Michigan and Justice David Stras of Minnesota, who are to be nominated to open seats on the U.S. Courts of Appeals for the 6th and 8th Circuits, respectively. It’s quite clear why the president would nominate these two jurists to appellate courts. If they were sufficiently qualified to make his Supreme Court shortlist, they’re clearly qualified for circuit courts. . . .
Trump’s other appellate nominees are equally impressive: attorneys Kevin Newsom for the U.S. Court of Appeals for the 11th Circuit, John Bush for the U.S. Court of Appeals for the 6th Circuit and perhaps most notably Notre Dame law professor Amy Coney Barrett for the U.S. Court of Appeals for the 7th Circuit.
Newsom clerked for Supreme Court Justice David Souter, served as the solicitor general of Alabama and wrote a well-regarded article for the Yale Law Journal, “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases.”
Barrett clerked for Supreme Court Justice Antonin Scalia, served for six years on the Advisory Committee for the Federal Rules of Appellate Procedure and has an impressive scholarly record.
Bush is an accomplished litigator and president of the Louisville Lawyers’ Chapter of the Federalist Society. He served on the Sixth Circuit’s Advisory Committee on Rules from 2012 to 2015.
In addition to the appellate nominees noted above, Trump is poised to nominate Damien Schiff of the Pacific Legal Foundation to the U.S. Court of Federal Claims. Among other things, Schiff successfully argued Sackett v. U.S. Environmental Protection Agency before the U.S. Supreme Court.
Nan Aron, once the scourge of conservative nominees to federal courts, told the Times’ Liptak that Democrats should be wary of Trump’s nominees. She added, “Given the critical importance of the circuit courts, it is incumbent upon the Senate to treat its duty to provide advice and consent very seriously.”
Undoubtedly, Senate Democrats will do so. But having abolished the judicial filibuster for nominees to the circuit courts, they are powerless to stop these nominees, barring exceptional circumstances that give Republican Senators pause.
A conservative approach to judging didn’t give Republican Senators pause when Neil Gorsuch was nominated to the Supreme Court. It won’t give them pause when considering nominees to lower courts.