The Federal Tap: Kavanaugh states his case

July 13, 2018Issue No. 121

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Week in review

On tap next week

THE WEEK IN REVIEW

Monday, July 9

Trump nominates Brett Kavanaugh to the U.S. Supreme Court

President Donald Trump nominated Judge Brett Kavanaugh to succeed Associate Justice Anthony Kennedy on the U.S. Supreme Court. Trump said regarding the nomination: "Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law."
Senate Majority Leader Mitch McConnell said of Kavanaugh's nomination: "President Trump has made a superb choice. Judge Brett Kavanaugh is an impressive nominee who is extremely well qualified to serve as an Associate Justice of the Supreme Court of the United States." On the day Kennedy announced his retirement, McConnell said the Senate would vote to confirm a successor in the fall.
Senate Minority Leader Chuck Schumer responded to the announcement: "Judge Kavanaugh got the nomination because he passed this litmus test, not because he’ll be an impartial judge on behalf of all Americans. If he were to be confirmed, women’s reproductive rights would be in the hands of five men on the Supreme Court."
Two satellite groups have been launched in response to Kavanaugh’s nomination.The Judicial Crisis Network released an ad promoting Kavanaugh’s confirmation, made a $1.4 million ad buy, and launched the website ConfirmKavanaugh.com. The group Demand Justice began running ads targeting Texas, Alaska, Maine, Colorado and Nevada, especially focusing on moderate Republican Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), who are facing pressure to oppose Kavanaugh.

Green Party removed from Montana Senate ballot; Secretary of State will appeal

Helena District Court Judge James Reynold invalidated enough petition signatures gathered by Green Party supporters to put them below 5,000 and remove Steve Kelly, their candidate in the Montana Senate race, from the ballot. Montana Secretary of State Cory Stapleton (R) said Wednesday he would appeal the ruling.
Democratic Party officials filed the lawsuit seeking to remove the Green Party from the general election ballot, arguing that Stapleton had incorrectly certified 180 petition signatures. The Green Party argued that Democrats were trying to remove them from the general election because they feared that Sen. Jon Tester (D) would lose votes to the Green Party candidate.
Democrats argued that the Green Party was assisted by Republican operatives hoping to divide the Democratic electorate and boost their candidate, State Auditor Matt Rosendale (R). Republicans said that Tester did the same thing in his last two elections by supporting a Libertarian candidate. In 2012, Tester’s last election, the difference in votes between Tester and his Republican opponent, Denny Rehberg, was less than the number of votes that the Libertarian candidate received.
With Kelly removed, Tester, Rosendale, and Libertarian Rick Breckinridge remain on the ballot.

Federal judge rejects Trump admin. request for longer-term detention of children separated from parents crossing the U.S. border illegally

A federal judge rejected a request made by the Trump administration to modify the terms of the 1997 Flores agreement, a legal settlement that has been interpreted by federal courts to prevent immigration officials from detaining minor children for more than 20 days. In his executive order signed June 20, 2018, Trump directed the attorney general to request that the terms of the agreement be modified "in a manner that would permit [federal officials] ... to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings. Judge Dolly Gee, of the United States District Court for the Central District of California, dismissed the request, writing the following in her order: "It is apparent that Defendants' Application is a cynical attempt ... to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. ... In sum, Defendants have not shown that applying the Flores Agreement 'prospectively is no longer equitable,' or that 'manifest injustice' will result if the Agreement is not modified." Devin O'Malley, a spokesman for the U.S. Department of Justice, said the following in a statement responding to Gee's order: "Parents who cross the border will not be released and must choose between remaining in family custody with their children pending immigration proceedings or requesting separation from their children so the child may be placed with a sponsor."

Four lawmakers file brief in support of legal challenge to Trump’s civil service executive orders

A group of four current and former members of Congress filed an amicus brief in support of a legal challenge to President Donald Trump’s civil service executive orders brought by 15 public sector unions. Representatives Elijah Cummings (D-Md.) and Peter King (R-N.Y.) joined former Representatives Bill Clay (D-Mo.) and Jim Leach (R-Iowa) in filing the brief.
Trump issued three executive orders in May 2018 that aimed to strengthen discipline and removal procedures for federal employees, ensure efficient use of taxpayer-funded union time, and streamline the collective bargaining process.
Three separate lawsuits aimed at blocking the executive orders were filed by the American Federation of Government Employees, the National Treasury Employees Union, and a coalition of 13 smaller public sector unions. The legal challenges claim that Trump’s executive orders conflict with certain collective bargaining provisions of the Civil Service Reform Act and prevent unions from performing their statutorily-required representational duties. A federal judge consolidated the lawsuits and scheduled a hearing for July 25.

NRCC withdraws support for Seth Grossman in battleground district NJ-02

The National Republican Congressional Committee (NRCC) withdrew its support of attorney Seth Grossman (R) in the battleground race for New Jersey's 2nd Congressional District after Media Matters reported Grossman had shared writings from sites associated with white nationalism. In one opinion piece Grossman reposted in 2014, the author said that black people were "a threat to all who cross their paths."
Grossman responded to the story that he did not agree with the opinion piece, adding, "I am running for Congress so I can help Trump do even more to take the Democratic training wheels off the black and Hispanic communities so they can succeed even more."
NRCC Chairman Steve Stivers said in a statement, "Bigotry has no place in society—let alone the U.S. House of Representatives. The NRCC withdraws our support of Seth Grossman and calls on him to reconsider his candidacy.”
Grossman faces state Sen. Jeff Van Drew (D) in this battleground race in November. The district includes New Jersey's only Pivot Counties—two of the 206 counties across the United States that voted for Donald Trump (R) in the 2016 presidential election after voting for Barack Obama (D) in 2008 and 2012.

Tuesday, July 10

Trump administration proposes tariffs on $200 billion of Chinese goods

The Office of the United States Trade Representative (USTR) called for a 10 percent tariff on $200 billion worth of goods from China. On June 15, 2018, the Trump administration announced a 25 percent tariff on approximately $50 billion worth of Chinese goods. Chinese officials responded to this action by imposing duties on U.S. goods, prompting the July 10 USTR proposal. U.S. Trade Representative Robert Lighthizer said, "For over a year, the Trump Administration has patiently urged China to stop its unfair practices, open its market, and engage in true market competition. We have been very clear and detailed regarding the specific changes China should undertake. Unfortunately, China has not changed its behavior – behavior that puts the future of the U.S. economy at risk. Rather than address our legitimate concerns, China has begun to retaliate against U.S. products. There is no justification for such action." In response to the announcement, Hua Chunying, a spokeswoman for China's foreign ministry, said, "We will take firm and forceful measures." Chunying did not detail specific proposals.

Trump issues executive order changing ALJ hiring process

President Trump issued an executive order, titled "Excepting Administrative Law Judges from the Competitive Service,” that removed administrative law judges (ALJs) from the hiring requirements of the competitive civil service and reclassified ALJs subject to the hiring procedures of the excepted service. Issued in light of the U.S. Supreme Court's June 2018 decision in _Lucia v. SEC_, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff, the reclassification allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications. The change also removes ALJs from the cause removal protections of the competitive civil service, allowing them to be fired at-will as members of the excepted service.
Prior to the executive order, ALJs were required to undergo a recruitment and examination process administered by the U.S. Office of Personnel Management (OPM) as part of the competitive civil service. After candidates had been vetted by the OPM, agencies could hire ALJs from the OPM's candidate pool. Reclassifying ALJs under the excepted service allows them to now be fired at-will.
ALJs, in the context of federal administrative law, are officials who preside over federal administrative hearings. They have the authority to hold hearings, issue subpoenas, review findings, and administer rulings. The Administrative Procedure Act requires that administrative law judges preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties.

Ads highlighting Supreme Court vacancy appear in battlegrounds in MO, FL, and MS

Sens. Claire McCaskill (Mo.) and Bill Nelson (Fla.), two Democratic incumbents in states that backed Donald Trump in 2016, are facing pressure on their future confirmation vote for Brett Kavanaugh for the Supreme Court.
“The eyes of a nation are on our Missouri. We decide which values control the Senate and the Supreme Court,” Missouri Attorney General Josh Hawley (R) says in a $500,000 ad campaign released this week. “Claire McCaskill wants liberals in charge. That's how she votes. That's not Missouri's way.”
In Florida, the Rick Scott campaign released an ad stating that Nelson did not oppose any judicial nominations by Democratic presidents. The clip’s narrator concludes, “Nelson obeyed party bosses every time. Now Nelson opposes this president’s choice before the choice has been made. You can’t get more party line than that.”
Both McCaskill and Nelson voted against Trump’s first Supreme Court nominee, Neil Gorsuch.
The Supreme Court vacancy is not only affecting general elections, but also primary battlegrounds. Appointed Sen. Cindy Hyde-Smith (R) is running to keep her seat in a special election in November and she has released an ad implying her chief rival, state Sen. Chris McDaniel (R), would not be a safe vote for Kavanaugh.
The clip highlights footage of McDaniel saying that Trump is not a constitutional conservative "Mississippi needs a senator who will stand strong with our president and his [judicial] nominees," the ad's narrator says.

Kavanaugh begins meeting with senators

Brett Kavanaugh met with Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, chairman of the Senate Judiciary Committee.

Delaware filing deadline

The filing deadline for major party candidates to run in Delaware’s statewide elections was Tuesday. In 2018, Ballotpedia is covering elections in Delaware for one U.S. Senate seat, one U.S. House seat, three state executive positions including attorney general, 10 state Senate seats, and all 41 state House seats. The primary election will be held on September 6, 2018, and the general election will be held on November 6, 2018.
- The filing deadline in Delaware marks the second-to-last filing deadline of 2018. Louisiana’s filing deadline is July 20, 2018, and will be the final candidate filing deadline this year.

Georgia independent filing deadline

Tuesday, July 10, was the deadline for independent candidates in Georgia to file for the general election, which will be on November 6, 2018. Georgia is having elections in 2018 for the U.S. House, governor and eight other state executive offices, the state legislature, judicial seats, school boards, and local governments.

Wednesday, July 11

Senate approves non-binding resolution calling for congressional role in implementing tariffs

The United States Senate voted 88 to 11 to approve a resolution calling for lawmakers to include in a government funding bill language that would provide for a congressional role in implementing tariffs for national security reasons. The resolution is non-binding, meaning that lawmakers are not required to include such language in the legislation. Senate Majority Whip John Cornyn (R-Texas), who voted for the resolution, said, "I think it's significant that, as many of us have discussed with the president and his Cabinet, that there's some anxiety about ... tariffs. I think it's just a way to make that point." Sen. David Perdue (R-Ga.), who voted against the resolution, said, "I just don't understand why this body continues to try to tie the hands of this president at every turn. The president is committed to creating a more level playing field for our workers and our companies here at home to compete."

Kavanaugh meets with more senators, GOP conference meeting held

Brett Kavanaugh met with more senators such as Orrin Hatch (R) and Lindsey Graham (R).
The entire Republican Conference also met on Wednesday to discuss Kavanaugh’s nomination.

Thursday, July 12

Trump attends NATO meeting, says allies commit to increased defense spending

At the conclusion of a two-day visit with NATO allies, Trump announced at a press conference that he had obtained commitments from allies to increase defense spending. Trump said, "Yesterday I let them know that I was extremely unhappy with what was happening. They have substantially upped their commitment and now we're very happy and have a very, very powerful, very, very strong NATO." Trump also reiterated the United States' commitment to the alliance, saying, "The United States' commitment to NATO remains very strong."
- In 2014, member nations agreed to spend 2 percent of their gross domestic product on defense by 2024. At the time of Trump's July 12 press conference, NATO officials estimated that 15 of the 28 member nations were on track to meet that goal. At the July 12 press conference, Trump said, "Some are at 2 percent, others have agreed definitely to go to 2 percent, and some are going back to get approval, and which they will get to go to 2 percent." On July 11, Trump said, via Twitter, "Where are there only 5 out of 29 countries that have met their commitment? The U.S. is paying for Europe's protection, then loses billions on Trade. Must pay 2% of GDP IMMEDIATELY, not by 2025."
- French President Emmanuel Macron, at a separate press conference on July 12, denied that member nations committed to increased defense spending beyond the aforementioned 2 percent goal. Macron also denied that Trump had threatened to leave the alliance, as some media reports suggested: "President Trump never at any moment, either in public or in private, threatened to withdraw from NATO."

Colorado filing deadline for unaffiliated candidates

The filing deadline for unaffiliated candidates—candidates not running with either a minor or major political party—to run in Colorado’s statewide elections was July 12. In 2018, Ballotpedia is covering Colorado elections for seven U.S. House seats, governor and 10 additional state executive seats, 17 state Senate seats, and all 65 state House seats. Ballotpedia is also covering municipal elections in Adams County, Arapahoe County, and El Paso County. Primary elections were held on June 26, 2018, and the general election will be held on November 6, 2018.

Federal officials announce reunification of 57 migrant children previously separated from parents who crossed into the U.S. illegally

Federal officials announced that 57 children under 5 years of age had been reunited with their parents who had crossed into the U.S. illegally. Officials noted that another 46 children were not eligible for reunification (e.g., because their parents hadn't cleared background checks, had criminal records, or had been deported).
- On June 26, Judge Dana Sabraw of the United States District Court for the Southern District of California ruled that migrant families separated at the border must be reunited. Sabraw issued a nationwide injunction against separating migrant families at the border. The ruling specified that children under the age of 5 held in federal shelters should be returned to their parents by July 10 and children older than the age of 5 should be returned by July 26. Sabraw stated in the injunction that families were not to be separated unless parents were deemed unfit and added that parents were entitled to speak with their children within 10 days. Federal officials had asked Sabraw to extend these deadlines. Sabraw denied the request.

Friday, July 13

Ballotpedia spoke with Dr. Richard Vining on Justice Kennedy’s retirement

Dr. Richard Vining is an associate professor in the Department of Political Science at the University of Georgia and an expert in judicial politics. Ballotpedia spoke with him about Justice Anthony Kennedy’s announcement that he was leaving the Supreme Court and taking senior status.

Ballotpedia: What is the difference between taking senior status and retiring?

Vining: Justice Anthony Kennedy will leave the Supreme Court by taking senior status rather than retiring from the bench altogether. This is permitted by 28 U.S. Code § 371, which allows federal judges to select either option once they are eligible for a pension. Lower federal court judges have been able to take senior status since 1919, and it was extended to Supreme Court justices in 1937.

Judges in senior status leave regular active service but retain their attachment to the federal courts. They contribute part-time service to their federal courts, either on the bench or in an administrative capacity. Senior status judges are eligible for pay raises given to their colleagues despite their reduced workload. Retired federal judges no longer work for the judicial system and receive an annual pension equivalent to the salary they earned during their final year on the bench.

Judges in senior status make hefty contributions to the work of the lower federal courts. For example, in recent years senior status judges have handled about one-quarter of the caseload in the federal district courts. Notably, Supreme Court justices in senior status hear cases only in the lower federal courts. This service comes at little additional cost to the government beyond the pension they would receive whether they retired or left regular active service.

Ballotpedia: Have other Supreme Court justices taken senior status instead of retiring? What does their typical workload look like?

Vining: Since the mid-1960s, Supreme Court justices have regularly taken senior status when they leave the bench voluntarily. With the exceptions of Chief Justice Rehnquist and Justice Scalia, who both died in office, all Supreme Court justices since Chief Justice Warren in 1969 have left office via senior status rather than resignation or retirement (15 of 17 departures). All recent justices but John Paul Stevens have heard cases at the circuit level after leaving the Supreme Court, with some doing so regularly. These activities usually take place near the justice’s home area. For example, Justice O’Connor tends to hear cases in Arizona while Justice Souter does so in Boston. It would not be surprising if Justice Kennedy participated in cases with the Ninth Circuit, D.C. Circuit, or Federal Circuit given his personal history and institutional affiliations.

Read more about federal judicial retirements:

Congress is in session

The House will be session Monday through Thursday. The Senate will be in session Monday through Friday.

SCOTUS is out of session

The Supreme Court has finished its argument scheduled for the term. To learn more about this term, read our review.

WHAT'S ON TAP NEXT WEEK

Saturday, July 14

Constitution Party convention to be held in South Dakota

Members of the Constitution Party in South Dakota will hold their state party convention on July 14. At the convention, party members will nominate statewide and legislative candidates for the November 6 general election ballot. Candidates will be nominated for the following offices: U.S. House, governor, lieutenant governor, attorney general, secretary of state, treasurer, auditor, public lands commissioner, public utilities commissioner, and the state legislature.
- Democrats held their state convention from June 15 to June 16. Republicans held their state convention from June 20 to June 23. Libertarians held their convention on June 9.

Monday, July 16

Rhode Island independent filing deadline

The filing deadline will pass for independent candidates to return nomination papers if they wish to run in Rhode Island’s statewide elections in 2018. This year, Ballotpedia is covering elections for one U.S. Senate seat, two U.S. House seats, governor and four additional state executive positions, all 38 state Senate seats, and all 75 state House seats. The primary election will be held on September 12, 2018, and the general election will be held on November 6, 2018.

South Carolina independent filing deadline

The filing deadline will pass for independent candidates to submit petitions to run in South Carolina’s statewide general elections in 2018. This year, Ballotpedia is covering the election of seven U.S. House seats, governor and seven additional state executive positions, all 124 state House seats, and the election of 20 school board members across four school districts. The election will be held on November 6, 2018.

Tuesday, July 17

Alabama primary runoff election preview

The Alabama primary runoff election is on Tuesday, July 17, for races where no candidate received a majority of the vote in the primary election. There are Republican runoffs for the Alabama 2nd congressional district seat, lieutenant governor, attorney general, agriculture commissioner, one state board of education seat, one state supreme court seat, and two intermediate appellate court seats. There will also be five primary runoffs for the state senate and 12 for state house. Ballotpedia is also covering the primary runoff election for several seats in Jefferson County.
- In the 2nd District runoff, incumbent Rep. Martha Roby and former Rep. Bobby Bright are facing each other. President Trump endorsed Roby in a tweet June 22. Early on, the race was seen as a test of whether voters would support GOP incumbents who criticize Trump. Roby disavowed the President while he was running in 2016, but later distanced herself from those comments, emphasizing her work with the President after his election. Bobby Bright represented the district for one term as a Democrat before losing to Roby by two points in 2010. He is seeking a rematch, this time running as a Republican. Bright said he’s running because Alabama residents told him they felt they were not well-enough represented in Washington, D.C.

Thursday, July 19

Exclusive: Sign Up for Ballotpedia webinar about Trump’s recent executive order

Caitlin Styrsky of Ballotpedia will host a webinar on President Trump’s Executive Order title “Excepting Administrative Law Judges from the Competitive Service”
Issued in light of the U.S. Supreme Court's June 2018 decision in _Lucia v. SEC_, the order allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications. The change also removes ALJs from the cause removal protections of the competitive civil service, allowing them to be fired at-will as members of the excepted service.
- Register for the webinar here.

Independent candidate filing deadline in Michigan

The Michigan statewide filing deadline for independent candidates is July 19. Interested candidates must file an affidavit of identity and a qualifying petition. To appear on the general election ballot, candidates must file a certain number of nominating papers based on the number of voters in their electoral division. For example, candidates for statewide offices such as governor must file between 30,000 and 60,000 signatures.
Ballotpedia will cover a total of 262 seats during the Michigan general election. These include positions at the federal and state levels as well as Wayne County. The filing deadline for partisan candidates was on April 24, 2018. The primary is on August 7, and the general election is on November 6, 2018.

Friday, July 20

Candidate filing deadline in Louisiana

The filing deadline for candidates running for election in Louisiana is on Friday, July 20. The general election is on November 6, 2018. In Louisiana, all candidates, regardless of party affiliation, run in the general election. If a candidate receives more than 50 percent of the vote in the general election, he or she wins outright. If no candidate reaches that threshold, a runoff election will be held between the top two vote-getters on December 8.
Federal elections that will be on the ballot are races for the state’s six congressional districts. Louisiana is currently represented in the U.S. House of Representatives by one Democrat and five Republicans. All six incumbents are running for re-election.

Where was the president last week?

On Monday, President Donald Trump announced at the White House his nomination of Brett M. Kavanaugh for the Supreme Court of the United States.
On Tuesday, Trump arrived in Brussels, Belgium, for a North Atlantic Treaty Organization (NATO) summit.
On Wednesday, Trump remained in Brussels for the NATO summit.
On Thursday, Trump departed Brussels and arrived in England for meetings with Prime Minister Theresa May and Queen Elizabeth II.
On Friday, Trump remained in England for continued meetings with May.

Federal Judiciary

146 federal judicial vacancies
85 pending nominations
31 future federal judicial vacancies

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The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

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