//  6/30/20  //  Commentary

All the recent Republican celebration that 200 Trump nominees to lifetime judicial posts have been confirmed by the Republican Senate ignores the more important numbers that should concern all of us, like 30.5 million Americans seeking unemployment benefits and 124,000 who have died from the coronavirus in the US by early June.   Even as to judicial confirmations, however, the hoopla about 200 ignores another very important number: 79. That’s the number of cases that I have found where Trump-nominated appeals court judges have written or joined opinions that are so extreme that even other Republican-appointed judges have disagreed with them. This includes several Bush appointees who were actually on Trump’s own short list for the Supreme Court. And it includes important decisions concerning women’s rights, civil rights laws, police violence, gun safety, and other important issues.

For example, Trump judge David Stras cast the deciding vote to rule that Samantha Flute could be prosecuted in federal court for manslaughter because she used drugs while pregnant that helped cause the death of her newborn child. Trump Supreme Court shortlister Steven Collotton strongly dissented, explaining that the ruling violated a “settled principle of interpretation.”

In another case, the parents of teenager Ryan Cole tried to hold police accountable for using excessive force in shooting and permanently injuring their son. Eleven judges on the Fifth Circuit court of appeals agreed they could go forward with their lawsuit, including noted conservative Edith Brown Clement and three other judges nominated by President George W. Bush. But four Trump nominees, including Don Willett and James Ho, dissented and argued that the officers should get qualified immunity.

 In an important voting rights case, Trump judge Elizabeth Branch tried to rule that people and organizations cannot file lawsuits against states like Alabama to enforce the federal Voting Rights Act. The majority disagreed, including a Reagan appointee who had declared in 2011 that the Affordable Care Act was unconstitutional. As one commentator pointed out, Branch’s view would make the landmark voting rights law “toothless.”

Trump judge Michael Scudder wrote an opinion, joined by Amy Coney Barrett and the other Trump judges on the Seventh Circuit, ruling that job applicants like Dale Kleber cannot claim that a business’ hiring practices have a discriminatory impact on older workers under the Age Discrimination in Employment Act. Noted Reagan conservative Judge Frank Easterbrook was among the strong dissenters, pointing out that “identical” language in other federal job bias laws allows such claims.

All five of the Trump judges on the Fifth Circuit tried to reconsider a decision involving conservative Bush nominee Priscilla Owen that upheld  a federal gun safety law that requires firearms dealers to sell guns only to state residents, complaining that the ruling was an example of treating gun rights as “second class.” Judge Owen and several other Bush nominees declined to reconsider the ruling.

These cases are only a few examples of how Trump appellate judges and justices are harming Americans by moving the law far to the right, so far that even other Republican judges disagree. More than 350 such cases, including the 79 where other Republican-appointed judges disagree, can be found through People For the American Way’s Confirmed Judges, Confirmed Fears website.  If Trump and the Senate Republican majority are re-elected in November, Trump judges’ far right dissents are all too likely to become the law, doing even more damage to women and other civil rights, police violence, gun safety, health care, and other important areas. All Americans must keep this in mind when they vote in November.


The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

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