If, as expected, Brett Kavanaugh ascends to the Supreme Court, a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit will arise. Bloomberg considers Alex Acosta’s prospects for being nominated.
Acosta is the Secretary of Labor. Unlike most of President Trump’s cabinet, he has done very little to reverse the pro-left policies of his predecessor. This seems particularly egregious inasmuch as Acosta’s predecessor, Tom Perez, was as aggressively left-wing as any member of President Obama’s cabinet.
The most innocent, and I believe the most plausible, explanation for Acosta’s passivity is that he doesn’t want to alienate Democrats ahead of his possible nomination for a judgeship or a more prestigious cabinet post. Another explanation is that he’s fine with Tom Perez’s radical legacy. Both explanations can be true.
Now, a judgeship on the nation’s second most important court will probably become available next month. How likely is it that Trump will nominate Acosta?
Bloomberg’s Chris Opfer considers it unlikely. He believes the competition will be too stiff. The D.C. Circuit is a stepping stone to the Supreme Court. Thus, nearly everyone in GOP legal circles under the age of, say 55, who is anyone, will be angling for the nomination.
On the plus side, though, Acosta has important friends. The most important one by far is Leonard Leo. He’s been been helping Trump pick judges since Day One.
In addition, as Bloomberg says, Acosta also has enemies who would love to see him promoted out of his current job. I’m referring to the business community, significant portions of which are frustrated with Acosta’s inaction.
The business community’s eagerness to see the back of Acosta is understandable. But the need for D.C. Circuit judges who consistently take conservative position and who aren’t cowed by the left must be the overriding concern of conservatives and the president.
There’s another possible angle here that Bloomberg does not consider. It’s not clear that Trump’s nominee to replace Kavanaugh will be voted on by the current Senate.
This probably doesn’t change the equation if Republicans retain control of the Senate, as most observers consider more likely than not. But if Democrats gain control, they will be in a position to block all of Trump’s nominees.
Under these circumstances, only a nominee who can peel off some Democratic votes will be confirmable. Acosta, by keeping the left reasonably happy as Secretary of Labor, and before that (perhaps to a lesser extent) as head of the Civil Rights Division at the Justice Department, might well be able to win Democratic support. After all, Democrats from swing states probably won’t want to vote down every nomination Trump sends to the Senate. Acosta could be their poster child for “reaching across the aisle.”
Here we see the logic of Acosta’s unwillingness to rock the left’s boat. With Leonard Leo on his side, he’s in play for a big time judicial nomination. If Republicans control the Senate, they will almost certainly confirm him despite any misgivings, out of deference to the president. If Democrats control the Senate, Acosta remains confirmable and, for that reason, perhaps moves to the head of the Republican class.
And even if Trump looks elsewhere for a D.C. Circuit judge, there’s always the 11th Circuit which has seats in Acosta’s hometown, Miami.
Thus, Acosta seems to have made a smart play by putting his ambition far ahead of any conservative policy agenda and the agenda Trump hoped to implement when he nominated hard-charging Andy Puzder for the job.
MEANWHILE, IN RELATED NEWS, Acosta still has not appointed anyone to the Department of Labor’s Administrative Review Board. All five members of that Board in place when Acosta arrived were Obama appointees. Four have left. Thus the Board, which in essence is the appeals court of the DOL, has only one member. He’s a crony of Tom Perez from their days as left-wing Maryland bureaucrats.
I understand that by appointing new members, Acosta would probably disappoint either liberals or conservatives. But Acosta’s inaction on this front sets a new standard for spinelessness and opportunism.