Yesterday, the Senate Judiciary Committee held a hearing on the nomination of Greg Katsas to the U.S. Court of Appeals for the District of Columbia. Katsas is hugely qualified for this important judgeship.
As I discussed here, he was executive editor of the Harvard Law Review, a Supreme Court clerk for Justice Thomas, and a high ranking attorney at the Justice Department during the George W. Bush administration.
Katsas has argued Supreme Court cases as a government attorney and in private practice. He has also argued in every U.S. appeal court. In all, he has more than 75 appeals.
This year, Katsas became deputy counsel to the president in the White House Counsel’s Office. It is this service that provides the left with its pretext for trying to block, as it routinely does, a highly qualified conservative from the federal bench.
The group that calls its People for the American Way openly states that Katsas shouldn’t be confirmed because his “decision to work in the White House Counsel’s office for this particular administration by itself disqualifies him.” It argues that “even if Katsas had no direct involvement” in Trump administration decisions it doesn’t like, “he has chosen to continue to serve and provide legal advice to the lawless president who has carried them out.”
This line of attack will resonate with Senators who would oppose Katsas anyway (namely all or virtually all Democrats). However, it’s not likely to prevent Katsas from gaining support from at least 50 GOP Senators — i.e., support enough to be confirmed.
Thus, at yesterday’s hearing Committee Democrats probed Katsas’ involvement, as deputy White Counsel, in various legal matters.
Katsas handled these questions in just the right way. He disclosed which issues he has worked on, but was unwilling — indeed, unable because of the attorney-client privilege — to disclose the legal advice he gave. And he promised to recuse himself from any cases involving his work as a government lawyer.
Senators were particularly interested in learning about Katsas’ role, if any, in dealing with Robert Mueller’s probe. Katsas testified that he provided “legal advice on a few discreet questions” arising from that investigation.
Nothing in Katsas’ testimony should cause Republican Senators to oppose his confirmation. This nominee is obviously a superstar. There is no basis for doubting that Katsas will recuse himself from hearing cases where it is appropriate to do so. Nothing in his record suggests a lack of integrity.
The Washington Post says it’s “not typical for a president to reach into his own White House Counsel’s Office to fill vacancies on a federal appellate bench in part because of questions inevitably raised about the nominee’s legal advice.” If so, such reluctance is unnecessary, as Katsas’ testimony showed.
The Post also claims “that President George W. Bush’s nomination of current D.C. Circuit Judge Brett M. Kavanaugh was stalled for three years in part because of Kavanaugh’s work as a top White House aide.” This statement is misleading, in my view.
The nomination of Kavanaugh didn’t stall because Kavanaugh offered legal advice to the Bush administration. Kavanaugh served as White House staff secretary, not as a member of the White House Counsel’s office. [Correction: Kavanaugh did serve as assistant White House counsel before becoming staff secretary]
The attack on Kavanugh as a nominee centered around allegations of strong conservatism on his part and that of the Bush administration, including the nomination of judges Senate Democrats didn’t like. This 2004 article from the New York Times provides the flavor.
Kavanaugh’s biggest problem, though, was probably his role in Kenneth Starr’s investigation of Bill and Hillary Clinton. Hillary was a member of the Senate when Kavanaugh’s nomination was under consideration.
It was Mrs. Clinton who, in an act of pure vindictiveness, held up Kavanaugh’s nomination.
This is old (but I hope interesting) history. It is Greg Katsas who is before the Senate now. Given the caliber of the nominee and the importance of the D.C Circuit, I view this nomination as the second best Trump has made — behind only Justice Gorsuch.
The Democrats barely laid a glove on Katsas yesterday, in my opinion. The GOP Senate needs to get this guy confirmed without delay.