President Trump’s Legacy: His Lifetime Appointments to the Federal Bench

In stark contrast to his difficulties advancing his legislative agenda, President Trump has been widely successful in nominating judges to fill the more than 100 vacancies in the federal judiciary. Presently, almost one-sixth of federal judgeships need to be filled. Seizing this opportunity, President Trump and the Republican majority in the Senate have taken steps to expedite the nomination and appointment process. For instance, the Trump administration has chosen not to consult the independent committee of the American Bar Association, which has provided evaluations for judicial nominations for every administration since 1953, save the current one and that of George W. Bush. In addition, the Senate Judiciary Committee has started to move ahead with hearings for nominees who do not have the approval of their home-state Senators. While it is not unheard of to disregard this 100-year-old tradition for circuit court judges, it is worth noting that Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, had previously refused to grant a hearing to four of former President Obama’s circuit court nominees because it would require deviating from this very tradition.

Because of this expedited process, it is even more important that the American people are paying attention to who is receiving these lifetime judicial appointments. Below are descriptions of the legal backgrounds and some highlights from the civil rights records of President Trump’s federal circuit court nominees who have received Senate approval. In addition to those below, President Trump has nominated 10 others to circuit court positions and 41 individuals to U.S. district courts, 5 of which have been approved. These summaries are not exhaustive descriptions of each nominee’s civil rights record. Rather, I hope they will encourage readers to investigate further the backgrounds of future judges whose civil rights philosophies may affect the United States for decades to come. (This information is current as of November 25, 2017.)

 

Name: Amul R. Thapar

Nomination: March 21, 2017

Confirmation: May 25, 2017 (Senate Vote: 52 – 44)

Position: United States Circuit Judge for the Sixth Circuit

Biography: Judge Amul R. Thapar, son of Indian immigrants, has served as a District Court Judge for the Eastern District of Kentucky for the past 9 years. During that time he also taught at multiple law schools, including the University of Virginia School of Law. Prior, he served as a United States Attorney in the Eastern District of Kentucky for a year and a half. He is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: Judge Thapar has shown alarmingly regressive views toward criminal sentencing. Relying anecdotally on his time as a prosecutor, Thapar believes, “[t]he way to stop recidivism is to keep the recidivists in jail.” Notable are a number of reversals, handed down by the 6th Circuit, of Judge Thapar’s decisions denying access to justice for prisoners. It has been noted positively that Judge Thapar has a record of letting the jury decide civil cases, reaffirming a civil plaintiff’s right to a jury trial.

 

Name: John Kenneth Bush

Nomination: May 08, 2017

Confirmation: July 20, 2017 (Senate Vote: 51 – 47)

Position: United States Circuit Judge for the Sixth Circuit

Biography: John Kenneth Bush of Anchorage, Kentucky graduated from Harvard Law School in 1989. After a clerkship on the Eighth Circuit, he was an associate at Gibson, Dunn, and Crutcher LLP for six years. For the past 21 years, he has worked for the law firm of Bingham Greenebaum Doll LLP. He is considered “Qualified” by the ABA.

Civil Rights Record Highlights: Bush has an abysmal record toward civil rights. He has compared slavery and abortion, deeming these the “two greatest tragedies of our country.” Additionally, he believes that the Supreme Court precedent affording protection to the press from libel actions by a public official was wrongly decided, from an originalist perspective. Bush is in favor of strengthening the First Amendment protection of corporation’s political speech. Further, Bush has been cited for exposing concerning views on LGBTQ issues, police brutality, and voter fraud.

 

Name: Kevin Christopher Newsom

Nomination: May 08, 2017

Confirmation: August 1, 2017 (Senate Vote: 66 – 31)

Position: United States Circuit Judge for the Eleventh Circuit

Biography: Kevin Newsom started his law career at Covington & Burling LLP. He went on to clerk for Justice Souter on the US Supreme Court. Newsom served as the Soliciter General of Alabama for four years before moving on to another law firm. While at Bradley Arant Boult Cummings LLP, Newsom also worked as a law school professor. He is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: As Solicitor General of Alabama, Newsom took a number of troubling stances in cases in front of the U.S. Supreme Court, including arguing against allowing individuals to bring racial discrimination claims. Newsom has also spent considerable time and effort defending Alabama’s death penalty, even remarking that he “expressed regret at the Supreme Court’s ruling that it is unconstitutional to execute juveniles.”

 

Name: Ralph R. Erickson

Nomination: June 07, 2017

Confirmation: September 28, 2017 (Senate Vote: 95 – 1)

Position: United States Circuit Judge for the Eighth Circuit

Biography: Ralph Erickson began his career as a prosecutor in 1984. For the past 24 years he has served as a judge in North Dakota, first as a County Magistrate, District Judge for the State of North Dakota, and finally as a federal District Judge for the District of North Dakota. He is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: Judge Erickson has decided a number of cases in favor of Native American rights, including issuing a preliminary injunction to prevent a North Dakota county from closing three-quarters of polling places on the Spirit Lake Reservation. Judge Erickson has also refused to grant summary judgment for police officers claiming qualified immunity allowing multiple cases involving alleged use of excessive force to go to trial.

 

Name: Amy Coney Barrett

Nomination: May 08, 2017

Confirmation: October 31, 2017 (Senate Vote: 55 – 43)

Position: United States Circuit Judge for the Seventh Circuit

Biography: Amy Barrett has been a professor at Notre Dame Law School for the past 15 years. Professor Barrett has also worked as an associate at Miller, Cassidy, Larroca, & Lewin L.L.P. (now Baker Botts L.L.P.). After graduating from Notre Dame Law School in 1997, Professor Barrett clerked on the U.S. Court of Appeals for the D.C. Circuit and for Justice Antonin Scalia. She is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: Several reproductive and health rights organizations have raised concerns over Barrett’s views on women’s reproductive rights. These groups have concerns about Barrett’s views that the Affordable Care Act’s contraceptive policy is an assault on religious liberty and that Roe v. Wade was incorrectly decided. These views are likely based on Barrett’s strong Catholic faith, which has also led her to be morally opposed to the death penalty.

 

Name: Joan Louise Larsen

Nomination: May 08, 2017

Confirmation: November 1, 2017 (Senate Vote: 60 – 38)

Position: United States Circuit Judge for the Sixth Circuit

Biography: Justice Joan Louise Larsen has served as a Michigan Supreme Court Justice since 2015. She has also served as a member of the University of Michigan Law School for the past 20 years. Prior to her time as a professor, Justice Larsen was an associate at Sidley Austin LLP. She clerked for the U.S. Court of Appeals for the D.C. Circuit and for Justice Antonin Scalia. She is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: When Justice Larsen was running for a position on the Michigan Supreme Court, the ACLU of Michigan raised concerns that she was involved in drafting a number of memos on habeas corpus, wiretapping, enhanced interrogation, and indefinite detention during her time at the Department of Justice. Justice Larsen has claimed that she was not involved with the memos on enhanced interrogation, though the memos have not been disclosed. Some concerns were raised at Justice Larsen’s confirmation hearing about a number of advertisements supporting her nomination paid for by a group furthering corporate interests. In response, Justice Larsen insisted that her record reflects a “50/50” split between corporate and individual interests.

 

Name: Allison H. Eid

Nomination: June 07, 2017

Confirmation: November 2, 2017 (Senate Vote: 56 – 41)

Position: United States Circuit Judge for the Tenth Circuit

Biography: Justice Allison Eid has served on the Supreme Court of Colorado for the past 11 years. She has also taught at the University of Colorado School of Law and served as Solicitor General in the Office of the Colorado Attorney General for a year. After graduating from the University of Chicago Law School, Eid clerked first on the Fifth Circuit and then for Justice Clarence Thomas. She is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: Justice Eid dissented in a case in 2012 that approved a congressional redistricting map which made a number of congressional districts more competitive. As a big supporter of tort reform, her desire to curtail large settlements could be seen as favoring corporate interests over the rights of individuals to recover damages.

 

Name: Stephanos Bibas

Nomination: June 19, 2017

Confirmation: November 2, 2017 (Senate Vote: 53 – 43)

Position: United States Circuit Judge for the Third Circuit

Biography: Stephanos Bibas has served as a law school professor for the past 16 years at the University of Pennsylvania and the University of Iowa. Starting his legal career at Covington & Burling, Professor Bibas went on to clerk for Justice Anthony Kennedy of the U.S. Supreme Court and served as an Assistant U.S. Attorney for the Southern District of New York. He is considered “Well Qualified” by the ABA.

Civil Rights Record Highlights: Professor Bibas has argued for the right of non-citizen defendants faced with with a plea deal to receive information about deportation. He has also written extensively about the criminal justice system, including calling for plea-bargaining and prison reform. However, Professor Bibas has also written an article for the National Review in which he painted the racial underpinnings of mass incarceration as a “racist conspiracy” that didn’t exist. In the same article, Bibas wrote of the personal responsibility that criminals have for their positions and the need to reform a system that creates a “permanent second-class status for ex-cons.”

 

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Madelyn is a second year law student at Harvard Law School. She is interested in civil rights, economic justice, and community lawyering.

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