Donald Trump judicial appointment controversies

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President Donald Trump entered office with a significant number of judicial vacancies,[1] one of which included a Supreme Court vacancy due to the death of Antonin Scalia in February 2016. President Trump had made approximately 50 judicial nominations by September 15, 2017, which was a significantly higher number of judicial nominations than any other recent president had made by that point in their presidency.[2] As of December 16, 2017, four of President Trump's judicial nominees had been rated "Not Qualified" by a majority of the American Bar Association's Standing Committee on the Federal Judiciary,[3] of whom one has withdrawn,[4] and one has been confirmed.[5] President Trump's percentage of judicial nominees rated "Not Qualified" by a majority of the Standing Committee on the Federal Judiciary is higher than in the previous four presidential administrations.[6]

Supreme Court

  • Supreme Court of the United States
    • Neil Gorsuch (of Colorado): President Trump announced the nomination of Judge Gorsuch on January 31, 2017. The nomination was formally transmitted to the Senate on February 1, 2017.[7] Judge Gorsuch's confirmation hearings started on March 20, 2017, and lasted four days.[8][9] On April 3, the Judiciary Committee approved Judge Gorsuch by a vote of 11–9, a party-line vote.[10][11] During the last day of committee hearings, Senate Minority Leader Chuck Schumer (D-NY) announced from the Senate floor that he would filibuster the nomination.[12] Democratic opposition focused primarily on the complaint that the vacancy on the court was created by the death of Justice Antonin Scalia during President Barack Obama's administration should have been filled by President Obama's nominee for the vacancy, Judge Merrick Garland.[13][14] In response, Republicans hearkened back to November 2013 when Democrats invoked the nuclear option to fill three vacancies on the United States Court of Appeals for the District of Columbia Circuit.[15] To counter the filibuster, Republicans invoked the nuclear option, ending debate with a simple majority vote and extending the rule that a simple majority could invoke cloture on all presidential nominations, including Supreme Court nominations.[16] The Senate confirmed Judge Gorsuch on April 7, 2017, by a vote of 54–45, with all Senate Republicans present voting to confirm along with three Democratic Senators from states that voted heavily for President Trump: Senators Joe Manchin (D-WV), Heidi Heitkamp (D-ND), and Joe Donnelly (D-IN).[17]
    • Brett Kavanaugh (of Maryland): President Trump announced the nomination of Judge Kavanaugh in July 2018. The nomination was formally transmitted to the Senate on July 10, 2010. The Senate confirmed Judge Kavanaugh on October 6, 2018, by a vote of 50–48. Except for Senator Lisa Murkowski (R-AK), all Senate Republicans voted to confirm Judge Kavanaugh. Murkowski announced her opposition to Judge Kavanaugh, but instead of voting no on confirmation, she voted present in order to pair her vote with Senator Steve Daines (R-MT) who was absent attending his daughter's wedding, allowing him to vote in favor of confirmation. Their vote pairing did not change the outcome of the vote. All Senate Democrats voted no on confirmation, except Joe Manchin (D-WV).[18]

Appellate nominees

Failed nominees

  • United States Court of Appeals for the Ninth Circuit
    • Ryan Bounds (of Oregon): On September 7, 2017, President Trump nominated Bounds, a former Assistant U.S. Attorney, to serve as a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, to the seat vacated by Judge Diarmuid O'Scannlain, who assumed senior status on December 31, 2016. A short time later, the state's two Democrat U.S. Senators, Ron Wyden and Jeff Merkley, announced that they would blue slip the nomination. They complained that the Trump Administration had bypassed a state bipartisan vetting commission and had not consulted them about the nomination. However, the White House Consel's office produced records stating that they had contacted the state's U.S. Senators on multiple occasions, but had gotten little response from them.[19] On January 3, 2018, his nomination was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate.[20] On January 5, 2018, President Donald Trump announced his intent to renominate Bounds to a federal judgeship.[21] On January 8, 2018, his renomination was sent to the Senate.[22] In February 2018, the bipartisan committee cited by the two Senators found Bounds to be qualified.[23] However, the Senators subsequently questioned Bounds' fitness on the basis of some writings of his when he was a student at Stanford University in the 1990s.[24] On May 9, 2018, a hearing on his nomination was held before the Senate Judiciary Committee.[25] On June 7, 2018, his nomination was reported out of committee by an 11–10 party-line vote.[26] On July 18, 2018, the Senate voted 50–49 to invoke cloture on his nomination.[27] On July 19, 2018 Senate Majority Leader Mitch McConnell announced that Bounds' nomination would be withdrawn after Senator Tim Scott announced he could not support the nomination, therefore not having enough votes to confirm Bounds.[28][29] On July 24, 2018 his nomination was officially withdrawn.[30]

Successfully appointed nominees

  • United States Court of Appeals for the Fifth Circuit
    • Kyle Duncan (of Louisiana): On September 28, 2017, President Donald Trump announced his intent to nominate Duncan to an undetermined seat on the United States Court of Appeals for the Fifth Circuit.[31] On October 2, 2017 he was officially nominated to serve as a United States Circuit Judge of the United States Court of Appeals for the Fifth Circuit, to the seat vacated by Judge W. Eugene Davis, who took senior status on December 31, 2016.[32] Duncan's judicial record was attacked by Democrats as being too conservative.[33][34] Republicans defended him, pointing out his academic and legal achievements and pointing out that he was rated "Well Qualified" by the American Bar Association.[citation needed] Republican Senator John Kennedy withheld his blue slip, calling into question his support for Duncan's nomination.[35] On November 29, 2017, a hearing was held on his nomination before the Senate Judiciary Committee.[32] On January 3, 2018, his nomination was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate.[20] Kennedy was impressed by Duncan's testimony and announced his support the following day.[citation needed] On January 5, 2018 President Donald Trump announced his intent to renominate Duncan to a federal judgeship.[21] On January 8, 2018, his renomination was sent to the Senate.[22] On January 18, 2018, his nomination was reported out of committee by a party-line 11–10 vote.[36] On April 23, 2018, the Senate voted to invoke cloture on Duncan's nomination by a vote of 50–44.[37] On April 24, 2018, his nomination was confirmed by a vote of 50–47.[38]
  • United States Court of Appeals for the Sixth Circuit
    • John K. Bush (of Kentucky): On May 8, 2017, President Donald Trump announced that he would nominate prominent Louisville lawyer Bush to the seat on the United States Court of Appeals for the Sixth Circuit vacated by Judge Danny Julian Boggs who took senior status on February 28, 2017.[39] On a questionnaire submitted to the committee, Bush acknowledged that between 2007 and 2016, he had pseudonymously authored approximately 400 blog posts on Elephants in the Bluegrass, a blog founded by his wife, Bridget.[40] His blog posts espoused conservative political views and expressed opposition to gay marriage, the Affordable Care Act, public financing of political campaigns, and the idea of trying terrorists in civilian courts.[41][42] Bush also compared abortion to slavery, calling the topics "the two greatest tragedies in our country."[42] When questioned about his blogging during his judicial nomination process, Bush said that "my personal views are irrelevant to the position for which I have been nominated" and that "Blogging is a political activity. It is not appropriate to bring politics to the bench."[43] On July 19, 2017, the Senate voted in favor of cloture by a vote of 51–48[44] and on July 20, 2017, the United States Senate voted 51–47 to confirm him,[45] both votes breaking along party lines.
  • United States Court of Appeals for the Seventh Circuit
  • United States Court of Appeals for the Eighth Circuit
    • L. Steven Grasz (of Nebraska): On August 3, 2017, President Donald Trump nominated Grasz to serve as a United States Circuit Judge of the United States Court of Appeals for the Eighth Circuit, to the seat vacated by Judge William J. Riley, who assumed senior status on June 30, 2017.[50] In October 2017, the American Bar Association's Standing Committee on the Federal Judiciary, a nonpartisan entity which rates judicial nominees, unanimously voted to give Grasz a "not qualified" rating for the position.[55] Senator Ben Sasse (R-NE) criticized the ABA for their decision, defending Grasz and saying the ABA's rating was based on politics.[56] On December 7, 2017, his nomination was reported out of committee by a 11–9 vote.[57] On December 11, 2017, the Senate voted 48–47 to invoke cloture on his nomination.[58] On December 12, 2017, the full United States Senate voted 50–48 in favor of confirmation; the vote was along party lines with Senators John McCain and Thad Cochran abstaining from the vote.[5]
    • David Stras (of Minnesota): On May 8, 2017, President Donald Trump nominated Stras, an Associate Justice on the Minnesota Supreme Court, to a seat on the United States Court of Appeals for the Eighth Circuit vacated by Judge Diana E. Murphy who took senior status on November 29, 2016.[59] The state's then-junior U.S. Senator, Amy Klobuchar, turned in her blue slip, but on September 5, 2017, Minnesota's then-senior U.S. Senator, Al Franken, announced that he would not return his blue slip for Stras. Franken stated that while he had nothing personally against Stras, the White House had not adequately consulted him about the nomination and added that he wanted to prevent the White House from achieving a "right wing" takeover of the Federal Judiciary.[60] On November 16, Franken was accused of making unwanted sexual advances to a talk show hostess,[61] and that was followed by other similar accusations from other women. On November 29, 2017, a hearing was held on Stras's nomination before the Senate Judiciary Committee.[32] On December 7, Franken announced that he would resign from the Senate effective January 2, 2018. He was replaced by Democrat Tina Smith. On January 3, 2018, Stras's nomination was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate.[20] On January 5, 2018, President Donald Trump announced his intent to renominate Stras to a federal judgeship.[21] On January 8, 2018, his renomination was sent to the Senate.[22] Newly appointed Senator Tina Smith has not yet made a decision on whether to blue slip Stras, whom she met with in early January.[62] On January 18, 2018, his nomination was reported out of committee by a 13–8 vote, with Amy Klobuchar, voting in support. On January 30, 2018, his nomination was confirmed by the Senate by a vote of 56–42.[63]

District court nominees

Failed nominees

Successfully appointed nominees

Stalled nominees

Article I court nominees

Failed nominees

  • United States Court of Federal Claims
    • Damien Schiff: on May 8, 2017, President Trump nominated Schiff, an attorney at the Pacific Legal Foundation, to serve as a United States Judge of the United States Court of Federal Claims, to the seat vacated by Judge George W. Miller, who retired in 2014.[126] Schiff became controversial because of his lack of experience with the specific court. But he became the subject of negative publicity when it was revealed that he described U.S. Supreme Court Associate Justice Anthony Kennedy as a "judicial prostitute" in a blog posting he wrote in 2007.[127] The Senate Judiciary Committee voted for him on an 11 to 9 party line vote. However, some Republican Senators implied that they would oppose him on the floor. On January 3, 2018, his nomination was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate.[20] The White House did not renominate Schiff in 2018.[128] Trump later nominated Richard Hertling in Schiff's place.
    • Stephen S. Schwartz: on June 7, 2017, President Trump nominated Washington, D.C. lawyer Schwartz to serve as a United States Judge of the United States Court of Federal Claims, to the seat vacated by Judge Lynn J. Bush who took senior status on October 21, 2013. On July 25, 2017, the Senate Judiciary Committee held a hearing on his nomination.[129] Democrats criticized the nomination, claiming that Schwartz did not have enough courtroom experience to serve as a judge. His nomination was reported out of committee by a vote of 11–9 on September 14, 2017.[130] On January 3, 2018, his nomination was returned to the President under Rule XXXI, Paragraph 6 of the United States Senate.[131] On January 8, 2018, the White House renominated 21 of 26 federal judicial nominees who had been returned by the U.S. Senate. Schwartz was not among the 21 individuals who were renominated.[128]

See also

References

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Notes

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