Trump Remaking Federal Bench in His Own Image

      President Trump rubbed Chief Justice Roberts the wrong way late last year by blaming what was then the most recent of the president's setbacks in federal courts on a well regarded jurist that he labeled as "an Obama judge." Roberts responded by putting in not merely a word, but an entire paragraph, in defense of the federal judiciary.
       “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a written statement issued by the Court's public information office just before Thanksgiving. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
       Roberts is likely to extol the virtues of an ostensibly nonpartisan federal judiciary again this week when he releases his annual report on the state of the federal judiciary on Tuesday [Dec. 31].  But Roberts is likely to ignore the elephant in the room: Trump's overt politicization of the federal judiciary with a record-setting number of confirmed federal judges after three years in office, many of them without a shred of bipartisan support.
       In New York, the state's Democratic governor, Andrew Cuomo, cited the reality of Trump's judicial appointments rather than Roberts' idealized image when he vetoed a seemingly uncontroversial bill to allow federal judges to officiate weddings in the Empire State. " I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration,” Cuomo said in a veto message issued Dec. 27.
      In effect, Cuomo signaled his view that the handful of judges Trump has named to the federal bench in New York have ruined the good name for the others. “President Trump does not embody who we are as New Yorkers," Cuomo said in the veto message. "The cornerstones that built our great state are diversity, tolerance, and inclusion.”
       In fact, Trump's judicial appointments openly flout diversity, tolerance, and inclusion as goals, according to a study by the gay rights organization, Lambda Legal.  Out of 50 judges named to federal courts of appeals through fall 2019, white males comprise the overwhelming majority: 40 men and 10 women; 42 white judges, seven Asians, one Latinx, and no one of African American ancestry.
      With a Senate calendar driven by the hyperpartisan majority leader, Mitch McConnell, Trump has won confirmation for more circuit court judges in three years than any of the previous five presidents in their first three years in office: 25 for Obama, 30 for Bush43, 28 for Clinton, 31 for Bush41, and 23 for Reagan. Trump has almost equaled in just three years Obama's total of 55 for eight years: a number reduced by McConnell's refusal to act on Obama's nominations in the Democrat's final two years in the White House.
       Trump's record also has this distinction: the confirmed circuit court judges include three who were rated "not qualified" by the American Bar Association: Steven Grasz  and Jonathan Kobes for the Eighth Circuit and Lawrence Van Dyke for the Ninth Circuit. They are the first nominees deemed unqualified by the ABA to win confirmation to federal circuit courts in more than 30 years, according to the study. All three won Senate confirmation on party-line votes after strong opposition from traditional civil rights groups.
       Among Trump's 50 circuit court judges, 43 were or are members of the conservative-libertarian Federalist Society, according to Lambda Legal's compilation. No ideological interest group has ever enjoyed similar success in getting its members named to federal judgeships, not the progressive American Constitution Society under Obama and not the American Civil Liberties Union under any president.
       Given its mission, Lambda Legal naturally stressed the anti-LGBT records of many Trump judges: by its count, more than one-third of Trump's circuit court appointees. Van Dyke, for one, espoused the unproven claim that marriage equality for gays and lesbians harms children and society. Steven Menashi, confirmed for one of the New York seats on the Second Circuit, "denigrated" the Supreme Court's marriage equality ruling, according to Lambda Legal, and supported banning gays and lesbians from the military. Eric Murphy, a former Ohio state's attorney confirmed for the Sixth Circuit, argued against marriage equality in the case that reached the Supreme Court as Obergefell v. Hodges. Unmentioned in the report are the several Trump nominees who could not bring themselves to endorse the Supreme Court's landmark ruling in Brown v. Board of Education to outlaw racial segregation in public schools.
      The report also underscores the overall impact of Trump's appointments on the federal courts immediately below the Supreme Court. On eight of the 12 geographically-based circuit courts, Trump judges comprise at least one-fourth of the active membership —  all but the First, Fourth, Tenth, and D.C. circuits. In all, Republican-appointed judges comprise a majority in seven of the twelve.
      McConnell has enabled Trump's transformation of the federal judiciary, the study notes, by discarding procedural safeguards aimed at promoting a measure of bipartisanship in appointments to the federal bench. In addition to the 50 judges confirmed for federal courts of appeals —  more than one-fourth of the total number —  the Senate has confirmed 133 Trump nominees to federal district court, including 80 in 2019. With federal courts one of the few institutions willing and able to stand up to Trump, the stakes are high in his remaining year in office and even higher in a potential second term.

For "Partisan" Impeachment, Republicans to Blame

       From start to the likely end, the present-day Republicans in Congress have flatly refused to take as serious the impeachment of President Donald Trump for "high crimes and misdemeanors." Instead, to a man and woman, every Republican in Congress is treating this true constitutional crisis as another political wrestling match, with nothing more at stake than one more year of Trump's presidency or the next election.
      Republicans simply deny Trump's proven guilt: his abuse of office by inviting a foreign government's interference in the 2020 election and his obstruction of Congress by refusing to provide information and instructing his aides to refuse to testify.
       To be sure, the three previous presidential impeachments — Andrew Johnson, Richard Nixon, and Bill Clinton — were each partisan in their origins and partisan in the political stakes for both parties. Yet the Nixon impeachment, left incomplete with his resignation, and Clinton's, with its eventual acquittal, both included faint traces of bipartisanship as seen in party line-crossing votes by a handful of House Republicans in 1974 and a few House Democrats in 1998.
      In the Nixon case, newly uncovered information shows that House Republican leaders were seriously considering the possible need to force Nixon from office as early as January 1974. In an article for The Atlantic, presidential historian Tim Naftali details information newly released from diaries of a key House Republican of the Nixon era, New York's Barber Conable.
      Naftali recalls that in the wake of Nixon's "Saturday Night Massacre" in October 1973, House Republicans joined with the Democratic majority in supporting an impeachment inquiry and, in contrast to the Trump-era Republicans, made no effort to thwart or stymie the inquiry. The vote to open the inquiry on February 6, 1974, was not merely bipartisan but, at 410-4, just short of unanimous.
      Conable's diary entries include his description of an overture from the House Republican leader, Arizona's John Rhodes, asking whether Conable,  then the fourth-ranking House GOP leader, would be open to demanding Nixon's resignation if the evidence warranted such a drastic step. Conable recalled in his diary that he agreed to Rhodes' request. “I said to him,” Conable wrote in the diary,  “that if he was asking me if I would be willing to stand up and be counted among those who would go to the President and demand such a resignation, that he could count on me.”
       When the House Judiciary Committee eventually drafted articles of impeachment against Nixon, several House Republicans in fact put constitutional law-and-order ahead of partisanship. Six Republicans voted on July 27, 1974, in favor of Article I (obstruction of justice), seven in favor of Article II two days later, (abuse of power), and two in favor of Article III on July 30 (contempt of Congress).
       Even earlier, the Senate's Republican leader, Pennsylvania's Hugh Scott, had turned on Nixon after realizing that Nixon had duped him by sharing a heavily edited transcript of Nixon's damning conversation with his principal accuser, the former White House counsel John Dean. Today, no Republican in Congress has been heard to object to Trump's analogous effort to protect himself by squirreling away the full transcript of his July 25 telephone call with the Ukrainian president, Volodymyr Zelensky.
       With the full extent of Nixon's criminality finally disclosed, Scott, Rhodes, and Arizona's Barry Goldwater went to the White House to tell Nixon directly that he faced certain impeachment in the House and certain conviction in an eventual Senate trial. Nixon, in an act of self-sacrifice unimaginable from Trump, decided on the night of Aug. 8 to resign and spare the country further turmoil. He even expressed a measure of contrition — a step also unimaginable from Trump.
       With the House under GOP control a quarter century later, congressional Democrats took Clinton's conduct seriously enough for 31 Democratic representatives to join in the House's 258-176 vote on Oct. 8, 1998, to initiate an impeachment inquiry. In the House Judiciary Committee two months later, five Democrats voted for three of the four articles of impeachment against Clinton. In the present-day impeachment, however, no Republican voted in favor of initiating the impeachment inquiry against Trump or in favor of impeachment in the Judiciary Committee or on the House floor.
      T he Senate's two party leaders at the time of the Clinton impeachment, Mississippi's Trent Lott for the Republicans and South Dakota's Tom Daschle for the Democrats, worked collegially and cooperatively to develop agreed-to rules for the Senate trials. By contrast, the present-day Senate Republican leader, Kentucky's Mitch McConnell, is spurning any and all suggestions from his Democratic counterpart, New York's Chuck Schumer.
       McConnell goes even further in raw partisanship by disclaiming any pretense of impartiality even though the oath he must take in an eventual Senate trial requires a promise to "do impartial justice according to the Constitution and laws, so help me God." By week's end, the course of future events was uncertain as the Democrats' speaker of the House, California's Nancy Pelosi, was delaying the formal submission of the articles of impeachment to the Senate while pressuring McConnell, with no luck so far, to call witnesses for the Senate trial, as was done in the Clinton impeachment.
       A lone voice for constitutional principle over partisanship emerged by week's end, however, in the form of an op-ed by Arizona's former Republican senator, Jeff Flake, urging his former colleagues to stop echoing the House Republicans in wrongly claiming that Trump has done nothing wrong. "If there ever was a time to put country over party, it is now," Flake wrote in the  article, published in The Washington Post [Dec. 20]. As Trump is wont to say, "We'll see what happens."

As Attorney General, Barr Is Trump's Roy Cohn

      President Trump has been obsessed for the past three years by the belief that the FBI tried to sabotage his 2016 presidential campaign by opening an investigation of the campaign's links to Russian operatives. Now, the Justice Department's inspector general has published a massive, 448-page report [Dec. 9] that absolved the FBI of any political bias in opening the investigation and thoroughly debunked Trump's continued insistence that the FBI was out to get him.
       Political motives were in plain view, however, when Attorney General William Barr reacted to the inspector general's report not by embracing the refutation of Trump's narrative but by emphasizing the now documented errors that FBI agents and officials made in the eventual course of the investigation.
       Barr, appointed by President Trump after his first attorney general, Jeff Sessions, refused to do his bidding, is continuing in his comments to play the role of Trump's protector-in-chief at Main Justice. Barr, it will be recalled, responded to the Mueller Report on the Russia investigation first by withholding it and then by claiming, wrongly, that it exonerated Trump. Now, Barr is trashing the Russia investigation even though the thorough review shows that the FBI had sufficient grounds to open the investigation and did so without political bias or motive.
       Admittedly, the inspector general, Michael Horowitz, told a Senate committee last week in a prepared statement that the investigation did not amount to "vindication" for the FBI in conducting the investigation officially dubbed "Operation Crossfire Hurricane." And James Comey, the FBI director at the time who was later fired by Trump to try to thwart the Russia investigation, acknowledged his responsibility for the mistakes in an appearance on Fox News on Sunday [Dec. 15]. "I was wrong," Comey told the Fox anchor Chris Wallace.
      The 17 major errors cited in the report included confirmation of one of Trump's major talking points: misplaced reliance on inaccurate or unsupported assertions in the report on Trump prepared by the British intelligence agent Christopher Steele. The IG's report found that unsubstantiated representations from the so-called Steele Dossier were cited in three of the applications to the Foreign Intelligence Surveillance Act (FISA) Court for warrants to wiretap the one-time Trump foreign policy adviser Carter Page.
      Barr went much further than errors such as those, however, in criticizing the FBI investigation in contradiction to the IG report's finding that the launch of the investigation was proper and untainted by "political bias or improper motivation." In FBI-speak, the report found that FBI agents and the various signing-off supervisors had sufficient "predictation" for opening the investigation.
      Specifically, the report relates, the investigation stemmed from a report by an intelligence agency from a Friendly Foreign Government (FFG) — Australia, but unnamed in the report — reporting on communications between Page and Russian operatives. The report contradicts one of the Trump talking points — specifically, that Page was planted into the Trump campaign as part of a politically motivated political sting.
      In blatant disregard of actual facts, Barr responded to the report by saying, among other things, that the FBI "launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions . . . ." Contrary to the FISA court's decisions, Barr contended that those suspicions were "insufficient to justify the steps taken."
      Barr went on to describe the investigation as consisting of "spying" on the Trump campaign. In FBI-speak, "spying" would consist of placing a confidential informant inside a suspect organization; the term would not be used to describe court-authorized electronic surveillance, as occurred in Crossfire Hurricane. In a further rant, Barr contended that the country was "turned on its head for three years" because of the Russia investigation — in apparent preference for no investigation of Russian interference in the 2016 election.
      For Barr, his good deeds for the president did not go unpunished. Instead, Barr himself became the main story by week's end as critics emerged to contend that he had politicized the department in blatant disregard of its traditional if idealized independence from the White House. Among the critics was one of Barr's predecessors: Eric Holder, who served for eight years as President Obama's attorney general.
      In an op-ed article written for The Washington Post, Holder contended forthrightly that Holder was "unfit" to continue as attorney general. Barr's most recent remarks, Holder argued, continued "a series of public statements and . . .  actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official that they demand a response from someone who held the same office."
      Others with lesser credentials made similar complaints. On MSNBC, Chuck Rosenberg, a former FBI official, called Barr's description of the IG report "absolutely false." Rosenberg said he was "disheartened" and "mystified" by Barr's statements. Appearing on the same newscast, John Heilemann, the veteran Washington political journalist, called Barr "a relentless political hack and a thug."
      Some on the political and legal left have gone so far as to suggest that Barr deserves to be impeached and removed from office. The Republican-majority Senate that confirmed Barr by a near party-line vote of 54-45 would never convict Barr even if the Democratic-majority House wanted to spend the time and political capital on impeaching him.
      Thus, Barr depends for office solely on the president, whose political bidding he gladly obliges. For Trump, it appears that his quoted wish has been fulfilled: "Where's my Roy Cohn?"

A Lawless President Asking to Be Impeached

      With the House of Representatives on the verge of drafting articles of impeachment, President Trump has tried to undermine the credibility of the Democrats' impeachment inquiry by complaining in effect that they have been gunning for him since the start of his presidency three years ago. He is right, but he has only himself to blame.
      Trump has been inviting impeachment since the very first day of his presidency by, for example, his open violation of the Constitution's Foreign and Domestic Emoluments Clauses. And now, even after getting wrist-slapped in the Russia investigation on foreign interference in the 2016 election and accused of obstruction, Trump recklessly abuses the powers of his office even more blatantly by actively seeking Ukraine's assistance in the 2020 election and stiff-arming the House impeachment inquiry.
      On the Emoluments Clause issue, Trump has argued in federal court litigation that arms-length patronage of Trump properties by foreign governments or domestic groups does not constitute a prohibited "emolument." With the cases still pending, judges in three cases have rejected that argument. Heedless of the issue, Trump has failed to divest himself of his interest in the Trump Organization and has done nothing to discourage foreign governments from trying to curry favor by patronize the Trump Hotel in Washington.
      The Emoluments Clause issue was one of five counts included in the first impeachment resolution against Trump introduced in what was then the Republican-majority House in November 2017. A dozen presidents before Trump had been named in impeachment resolutions — not just Johnson, Nixon, and Clinton — but no previous chief executive had been charged with impeachable conduct as early as his first year in office.
      That unacted-on resolution by six Democratic representatives also charged Trump with obstructing justice by firing FBI director James Comey to thwart the then-ongoing Russia investigation by special counsel Robert Mueller. Mueller's eventual report cited the firing of Comey along with other actions as evidence of obstruction, but Mueller bowed to Justice Department policy by declining to bring a criminal charge against the president.
      Having gotten away with a warning, a law-abiding president might have taken care to avoid any obstructive conduct later on. Trump chose instead to double down on obstruction by declaring the House impeachment inquiry unconstitutional and refusing to cooperate in any way. The House Intelligence Committee report released last week [Dec. 3] notes at page 28 that Trump is "the first president in the history of the United States to seek to completely obstruct an impeachment inquiry undertaken by the House of Representatives . . . " He did so, the report explains, by "instructing witnesses and agencies to ignore subpoenas for documents and testimony."
      Trump escaped mostly unscathed in the Russia investigation after Mueller's staff failed to find evidence of direct collusion between the Trump campaign and the Russian operatives who were carrying out Vladimir Putin's undisguised preference for Trump in the election. As with his obstructive conduct, Trump decided to double down on foreign interference in U.S. politics by directly soliciting "a favor" from the new Ukranian president  Volodymyr Zelensky in the now infamous July 25 telephone — specifically, an investigation into Trump's political rival, former vice president Joe Biden.
      Trump may sincerely believe that the telephone was "perfect," but hardly anyone — not even most Republicans — agrees. The telephone call, the House Intelligence Committee report notes at page 10, was "not an isolated occurrence, nor was it the product of a naive president." Trump, the report notes, was elected "with the benefit of an unprecedented and sweeping campaign of election interference undertaken by Russia in his favor."
      With most of the facts in the Ukraine investigation undisputed, Republicans and Trump apologists were left at last week's House Judiciary Committee hearing [Dec. 4] to argue that the record is incomplete and the move to impeach rushed. Jonathan Turley, the George Washington University law professor who served as the Republicans' expert witness at the all-day hearing, wrongly claimed that the Trump impeachment would be the fastest presidential impeachment in U.S. history.
      Even with the hearing in progress, reporter Emily Singer showed in an article for the progressive news site The American Independent that Turley's assertion was "demonstrably false." In fact, Andrew Johnson was impeached in 1868 just three days after the House started the process; Bill Clinton was impeached in 1998 75 days after the GOP-controlled House started the process. House Speaker Nancy Pelosi greenlighted the inquiry into Trump on Sept. 24, Singer noted — 71 days earlier.
      Turley spoke after three other constitutional law experts — Harvard's Noah Feldman, Stanford's Pam Karlan, and the University of North Carolina's Michael Gerhardt — all agreed that Trump has committed impeachable conduct. Turley's performance drew a negative review from one of his former students, but at week's end he had yet to apologize for his misstatement or to convincingly reconcile his support for impeaching Clinton two decades ago with his stance toward Trump today.
      In asking the House committee leaders to proceed with drafting articles of impeachment, Pelosi maintained on Thursday [Dec. 5] that Trump "gave us no choice." For a deeply divided country, the forecast for months ahead is more division, as Republicans in the Senate are challenged to act as "impartial" jurors in a constitutional test unlike any in previous U.S. history.

Kavanaugh Lines Up With Anti-Regulatory Stance

      Supreme Court Justice Brett Kavanaugh steered clear of controversy when he used the Federalist Society's annual meeting last month [Nov. 14] as the forum for his first public appearance since his contentious confirmation a year ago. Less than two weeks later, however, Kavanaugh went out of his way in a below-the-radar Supreme Court case to advance a major conservative issue by calling for federal courts to expand their role in reviewing regulatory initiatives by federal administrative agencies.
      Kavanaugh fired his shot across the bow last week [Nov. 25] even as he joined in shelving a case, Paul v. United States, that asked the Court to give new life to the so-called nondelegation doctrine as a limit on administrative agencies' powers. The petitioner in the case, Ronald Paul, wanted the Court to invalidate decisions by three U.S. attorneys general to extend the federal sex offender registration law to sex offenders like himself convicted before the law was enacted in 2007.
      The Court rejected that argument in a similar case, Gundy v. United States, decided on June 20 by a splintered 5-3 majority without Kavanaugh's participation because it was argued before his confirmation. In his "statement
 respecting the denial of certiorari," Kavanaugh said he agreed with the decision not to hear Paul's case because it raised "the same statutory issue resolved last term in Gundy . . . ."
      Kavanaugh went on, however, to praise Justice Neil Gorsuch's dissenting opinion in Gundy and to call for considering Gorsuch's view in a future case. Kavanaugh's position creates a potential five-vote majority in favor of what would amount to a mini-revolution in judicial review of regulatory policy. Under Gorsuch's approach, federal courts would be expected to strike down regulations that go beyond "filling up details" in congressional statutes and instead embody "major policy decisions" properly for Congress to make.
      Political conservatives have long complained that federal regulators often go beyond their powers delegated by Congress to promulgate regulations that ought to be enacted if at all by elected representatives in Congress instead of unelected federal bureaucrats. Despite the long history of these complaints, the Supreme Court has invoked the nondelegation doctrine only twice to strike down federal regulatory initiatives in two decisions in 1935 that dealt with New Deal enactments under President Franklin D. Roosevelt.
      The defendants in Gundy and Paul argued that attorneys general under Presidents George W. Bush and Barack Obama had gone too far in issuing regulations that applied the Sexual Offender Registration and Notification Act (SORNA) retroactively to sex offenders convicted before it was enacted. The law included a provision instructing the attorney general to cover pre-Act offenders "as soon as feasible."
      In Gundy, Justice Elena Kagan wrote for a plurality for four justices to find that provision sufficient authority for the regulations to extend SORNA's registration requirements. Justice Samuel A. Alito Jr. provided the fifth vote for the decision in a limited concurring opinion that he used to call for reviving the nondelegation doctrine in a future case with a full nine-justice bench.
      Gorsuch was joined in his 33-page dissenting opinion by two other conservatives: Chief Justice John G. Roberts Jr. and associate justice Clarence Thomas. Gorsuch argued for a stronger approach to nondelegation issues to prevent what he called "delegation run riot," invoking Justice Benjamin Cardozo's oft-quoted phrase from one of the 1935 decisions.
      Kavanaugh praised what he called Gorsuch's "scholarly analysis" of the nondelegation doctrine in a four-paragraph opinion that traced Gorsuch's view to a concurring opinion written almost 40 years ago by then-associate justice William H. Rehnquist. Rehnquist provided the fifth vote in the Court's decision in Industrial Union Department v. American Petroleum Institute (1980) to strike down strict benzene exposure standards promulgated by the Occupational Safety and Health Administration (OSHA).
      The four moderate-to-liberal dissenters in that case complained that the four justices in the plurality struck down the OSHA regulation based on "the plurality's own views of proper regulatory policy." Ian Milhiser, a friend and colleague, channeled this critique in a sharply written column for the online news site Vox. Kavanaugh's opinion, Milhiser wrote, "shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power."
      From the opposite perspective, the libertarian commentator Damon Root hailed Kavanaugh's opinion in a short column for Reason.com as evidence that the rookie justice "seems to have joined Gorsuch's campaign to put some judicial teeth into the nondelegation doctrine." Root called the development "welcome news." In his column, however, Milhiser warned that Gorsuch's approach, if adopted, would "severely weaken seminal laws such as the Clean Air Act and the Clean Water Act."
      Gorsuch took pains in his opinion to leave room for Congress to delegate fill-in-the-blanks power to regulatory agencies, for example, when based on specified factual findings. But the decisions he cited all struck down regulatory initiatives       for example, the regulations promulgated by the Food and Drug Administration (FDA) to limit marketing of tobacco products to minors.
      In his opinion, Gorsuch vigorously insisted on the need for important policy decisions to be made by the people's elected representatives. Yet his position would necessarily result in giving the five unelected Republican-appointed justices broad discretion to strike down regulations that run contrary to their political views. The irony is too thick to overlook.