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President Trump and Republicans have been quietly and systematically reshaping the federal judiciary. The Senate has confirmed a record 12 Trump picks for the influential federal appeals court -- the fastest success rate for any president ever. John Yang gets reactions from Vanita Gupta of the Leadership Conference on Civil and Human Rights and Ilya Shapiro of the Cato Institute.
While President Trump had to wait until December to see his long-wished-for tax overhaul pass the Congress, as John Yang reports, he and Senate Republicans have used the year to begin quietly and systematically reshaping the federal court system.
Hearings for judicial nominees can be sleepy affairs, but late last week…
Sen. John Kennedy:
Do you know what a motion in limine is?
I probably wouldn't be able to give you a good definition right here at this table.
Do you know what the Younger abstention doctrine is?
I have heard of it, but I again…
How about the Pullman abstention doctrine?
You will all see that a lot in federal court. OK.
Matthew Petersen's inability to answer Republican Senator John Kennedy's basic questions about legal procedure led him to drop out of consideration for a seat on the powerful district court in Washington.
He was the third of President Trump's court picks to step aside in a week amid questions about their qualifications and temperament. Brett Talley dropped his bid after questions were raised about his background and his failure to disclose a conflict of interest. His wife is a White House lawyer.
A 2015 video surfaced of nominee Jeff Mateer criticizing same-sex marriage and calling transgender children evidence of Satan's plan.
President Donald Trump:
We will set records in the terms of number of judges.
Despite these setbacks, the Senate has confirmed a record 12 Trump picks for the influential federal appeals courts, the fastest success rate for any president ever.
There has never been anything like what we have been able to do together with judges.
Yale Law Professor Akhil Reed Amar-
Akhil Reed Amar:
The biggest thing people are missing is that they may have noticed several of President Trump's spectacular failures among district court nominees, pulled nominations, viral videos and the like.
That's all very interesting, but a bit distracting, because he's been spectacularly successful at the federal court of appeals level, and that's where the real action is, because those are the judges that will change the law and shape the law going forward for the next 30 years.
The Supreme Court hears only dozens of case a year. That means federal appeals courts have the final word on tens of thousands of matters that don't reach the justices. So far this year, lower courts have blocked Trump administration policies, like the travel ban, the transgender military ban and on so-called sanctuary cities.
In 2013, the then majority Democrats changed Senate rules to require only 51 votes for judicial confirmations. Now Republicans are using that to reshape the federal judiciary.
He's picking conservative idea people of all sorts of different flavors of conservatism. They tend to be largely, overwhelmingly really, white. They are more male than President Obama's appointees on average were, and they're younger. So these are folks who are going to be around for a very long time, shaping the law.
Even picks who have won confirmation have generated controversy. One was appeals court nominee Leonard Steven Grasz, who took heat for past statements on abortion and same-sex marriage.
Sen. Sheldon Whitehouse:
You are the first circuit court nominee since 2006 to receive a unanimous not-qualified rating from the ABA.
Leonard Steven Grasz:
I do respectfully disagree with the result.
Grasz was confirmed this month along party lines.
And now confirmed Judge John Bush was grilled about blog posts that compared abortion to slavery. Mr. Trump still has more than 40 nominees pending and more than 100 vacancies yet to fill.
For two different perspectives on this, we're joined by Vanita Gupta. She's the head of the Leadership Conference on Civil and Human Rights, and she ran the Civil Rights Division in the Obama Justice Department. Also by Ilya Shapiro, he's a senior fellow in constitutional studies at the Cato Institute, which is a libertarian think tank here in Washington.
Thank you both for joining us.
Ilya, let me begin with you.
We saw in the tape piece the three recent nominees who withdrew. That's leading a lot of critics to say this process is moving too fast, they're not vetting them carefully enough, the nominees carefully enough, and not only that, but that the administration is more interested in ideology, rather than traditional experience and background.
What do you say to those critics?
Well, it depends what you mean by ideology.
I think there is an emphasis on finding people who are committed intellectually and by their experience have a paper trail that defends originalism and textualism, not simply a crony or a hack that has spent all their time in the Bar Association or something like that. So it's not those kind of so-called traditional qualifications.
But, certainly, as we have seen from the circuit court nominees, the dozen that have been confirmed and others, a lot of folks that have clerked on the Supreme Court, that have made Donald Trump's not-so-short short list for elevation to the Supreme Court, really stellar reputations nationwide.
So, yes, you could have a few bad apples here and there, but I think the emphasis on youth — certainly, you want to have a long-term impact — and on having a jurisprudential focus so that you actually have people committed to a certain vision of policy.
Focusing on a certain vision, what do you think of that, Vanita?
Well, I think it's — you need to have qualified people.
And I think what you saw with folks like Brett Talley and Jeff Mateer are not just a concern about qualifications, but also a real concern about bias.
When you had Jeff Mateer saying that transgender children are part of Satan's plan, you have Brett Talley, who is actually at the Justice Department, supposed to know how vetting works and is overseeing that operation, fail to disclose on his confirmation papers that his wife works for the White House Council's Office, by way of potentially presenting a conflict, that goes to something deeper.
And there's concerns not only — with Petersen, you had a concern about lack of basic knowledge of legal doctrines. Here, it's a concern about qualifications, it's a concern about bias.
Federal judges have lifetime appointments, and they're considering some of the most important, crucial matters of life and liberty in people's lives. And it's an incredibly important thing for people to be able to feel like they can have an impartial hearing before a federal judge.
Ilya, another point that critics are making is that the majority of the nominees, of the Trump nominees, have been white men. Should diversity matter, that sort of diversity, matter in judicial appointments?
Well, it depends on the pool you're looking for.
If you're looking at conservatives and libertarians, if you're looking at originalists and textualists, there's just not that many, say, female — females of color in that pool. That's just the way things are.
And so if you are looking for a particular intellectual and jurisprudential background, you know, even if a lot of them are white men, you still have stellar nominees. There's Amy Coney Barrett and Joan Larsen and Allison Eid, for that matter, Amul Thapar and Jim Ho.
So, it's not uniformly white men. It's the best of different — in that pool without regard to race or sex.
The numbers actually on Trump's nominees are really stark.
Ninety percent of the nominees being put forth are white; 80 percent are male. That's a pretty striking number. And I think Ilya's response to say that the reason why you don't see more diverse political candidates is because the judicial philosophy that is putting forth is really mostly adhered to by white men, I think that says everything that you need to know about what's happening with these nominees and the vision that they're putting forth.
But it matters for people, to be able to have confidence in the justice system, to believe that it represents the community in which the courts sit. And that can have a real impact. That's why diversity matters. It isn't sufficient. You have got to have proper, adequate qualifications, but it certainly matters.
One thing I want to ask is that, as we have this process of one side sort of — the process has become politicized.
And I don't think it's anything new. After all, the Robert Bork hearings were 30 years ago. Are we in danger of having a judiciary that's as polarized as the legislature with — through this process, Ilya?
Well, I think it's unhealthy for our body politic to have people think of judges in partisan terms, the same way they think of legislators.
But it's essentially unavoidable, because we have parties that are more ideologically incoherent than they have been in quite some time and polarized, more polarized than they have been, and judicial philosophies that track those partisan divisions.
And so there really aren't any good solutions to this. Judges matter. They're deciding important things. And if you have such radically different perspectives on things, then of course there are going to be these political fights. So I don't blame the senators for acting as they do.
Yes, I agree. I think it isn't good for the judiciary to be considered so partisan.
And I think, frankly, you saw with this president attacking federal judges for decisions that they have made that, they have rendered that he doesn't agree with. All of that adds to the gross politicization of the federal judiciary.
I think that senators do have a responsibility. This is what was so striking, again, about what Senator Kennedy did. A conservative Republican senator from Louisiana took his job really seriously about the need to make sure that, with these lifetime appointments, that the right people are going to be on the bench with lifetime appointments.
Vanita Gupta, the Leadership Conference on Civil and Human Rights, Ilya Shapiro of the Cato Institute, thanks so much.
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