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The Federal Tap: Rebooting the Ninth Circuit

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August 25, 2017Issue No. 78

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Week in review
On tap next week

THE WEEK IN REVIEW

Here's what happened in federal politics last week. To see what happened in state and local politics, click here.

Monday, August 21

Trump outlines strategy in Afghanistan

  • During a nationally televised speech from Fort Myer military base in Arlington, Virginia, President Donald Trump announced that his administration would expand U.S. involvement in Afghanistan, put more pressure on Pakistan for harboring terrorists, and execute a military strategy based on conditions on the ground instead of arbitrary timetables to win the nearly 16-year-old war in Afghanistan. Trump said, “From now on, victory will have a clear definition: attacking our enemies, obliterating ISIS, crushing al Qaeda, preventing the Taliban from taking over Afghanistan, and stopping mass terror attacks against America before they emerge.” He acknowledged that his “original instinct was to pull out” of Afghanistan, but, instead, he has decided to remain engaged in the region based on the advice of his Cabinet and military generals. Trump said that battle plans will not be announced, nor will troop increases or decreases. He said, “America’s enemies must never know our plans or believe they can wait us out.” He also said that the goal of the U.S. in Afghanistan is to kill terrorists, not nation build. Here are the main points from his speech:
    • On national unity: Before he announced his strategy in Afghanistan, Trump addressed recent acts of hate. He said, “When we open our hearts to patriotism, there is no room for prejudice, no place for bigotry, and no tolerance for hate. The young men and women we send to fight our wars abroad deserve to return to a country that is not at war with itself at home. We cannot remain a force for peace in the world if we are not at peace with each other. As we send our bravest to defeat our enemies overseas -- and we will always win -- let us find the courage to heal our divisions within. Let us make a simple promise to the men and women we ask to fight in our name that, when they return home from battle, they will find a country that has renewed the sacred bonds of love and loyalty that unite us together as one.”
    • On the consequences of a rapid exit from Afghanistan: “A hasty withdrawal would create a vacuum that terrorists, including ISIS and al Qaeda, would instantly fill, just as happened before September 11th. And, as we know, in 2011, America hastily and mistakenly withdrew from Iraq. As a result, our hard-won gains slipped back into the hands of terrorist enemies. Our soldiers watched as cities they had fought for, and bled to liberate, and won, were occupied by a terrorist group called ISIS. The vacuum we created by leaving too soon gave safe haven for ISIS to spread, to grow, recruit, and launch attacks. We cannot repeat in Afghanistan the mistake our leaders made in Iraq.”
    • On ending nation-building: “Ultimately, it is up to the people of Afghanistan to take ownership of their future, to govern their society, and to achieve an everlasting peace. We are a partner and a friend, but we will not dictate to the Afghan people how to live, or how to govern their own complex society. We are not nation-building again. We are killing terrorists.”
    • On a conditions-based strategy: “A core pillar of our new strategy is a shift from a time-based approach to one based on conditions. I’ve said it many times how counterproductive it is for the United States to announce in advance the dates we intend to begin, or end, military options. We will not talk about numbers of troops or our plans for further military activities. Conditions on the ground -- not arbitrary timetables -- will guide our strategy from now on. America’s enemies must never know our plans or believe they can wait us out.”
    • On Pakistan: “We can no longer be silent about Pakistan’s safe havens for terrorist organizations, the Taliban, and other groups that pose a threat to the region and beyond. Pakistan has much to gain from partnering with our effort in Afghanistan. It has much to lose by continuing to harbor criminals and terrorists. … But Pakistan has also sheltered the same organizations that try every single day to kill our people. We have been paying Pakistan billions and billions of dollars at the same time they are housing the very terrorists that we are fighting. But that will have to change, and that will change immediately. No partnership can survive a country’s harboring of militants and terrorists who target U.S. servicemembers and officials. It is time for Pakistan to demonstrate its commitment to civilization, order, and to peace.”
    • On having a clear definition of victory in Afghanistan: “From now on, victory will have a clear definition: attacking our enemies, obliterating ISIS, crushing al Qaeda, preventing the Taliban from taking over Afghanistan, and stopping mass terror attacks against America before they emerge.”

Ten U.S. Navy sailors dead after USS McCain collides with oil tanker

  • Ten U.S. Navy sailors were reported missing and five others were injured after the USS John S. McCain, a guided-missile destroyer, collided with an oil tanker east of the Straits of Malacca and Singapore. None of the five injured sailors had life-threatening injuries. It is the second ship to be involved in a collision resulting in the deaths of U.S. sailors in the last two months. On June 17, seven sailors were killed after the USS Fitzgerald collided with a cargo ship off the coast of Japan. In response to these two deadly collisions, the U.S. Navy relieved Vice Adm. Joseph Aucoin of his duties as commander of the U.S. 7th Fleet based in Yokosuka, Japan, "due to a loss of confidence in his ability to command." The Navy also ordered pause in operations to examine operating procedures. The Navy is continuing its search for the bodies of the missing sailors. They sailors who lost their lives in the collision are:
    • Electronics technician 3rd class Kenneth Aaron Smith, 22, from New Jersey;
    • Electronics technician 1st class Charles Nathan Findley, 31, from Missouri;
    • Interior communications electrician 1st class Abraham Lopez, 39, from Texas;
    • Electronics technician 2nd class Kevin Sayer Bushell, 26, from Maryland;
    • Electronics technician 2nd class Jacob Daniel Drake, 21, from Ohio;
    • Information systems technician 2nd class Timothy Thomas Eckels Jr., 23, from Maryland;
    • Information systems technician 2nd class Corey George Ingram, 28, from New York;
    • Electronics technician 3rd class Dustin Louis Doyon, 26, from Connecticut;
    • Electronics technician 3rd class John Henry Hoagland III, 20, from Texas; and
    • Interior communications electrician 3rd class Logan Stephen Palmer, 23, from Illinois.

White House rapid response director leaves post

  • Andy Hemming—a communications specialist who has worked for the Republican National Committee, Mitt Romney, and Rick Perry—left his position as White House rapid response director. Hemming’s duties included monitoring television and social media for news stories that reflected well on the Trump administration and conveying those news stories to media outlets. White House press secretary Sarah Huckabee Sanders said the Hemming’s departure was a “mutual decision that he could best help promote the president's agenda on the outside. Andy is smart and very talented and we wish him all the best.”

Moore holds nearly 20-point lead over incumbent Strange in Alabama Senate special election

Tuesday, August 22

President Trump states he would be willing to shut down government over border wall funding

  • At a rally in Phoenix, Arizona, President Donald Trump (R) discussed the building and funding of the proposed border wall, stating, "We are building a wall on the southern border which is absolutely necessary. The obstructionist Democrats would like us not to do it. But believe me, if we have to close down our government, we're building that wall."
  • President Trump was referencing upcoming legislative discussions over passing a federal budget and raising the debt ceiling, which Congress will turn to in September. If Congress could not agree on a spending bill or President Trump vetoed the bill, the government would suspend non-essential operations until a bill was enacted.
  • In July, Rep. Joseph Crowley (D-N.Y.) said, “I won’t speak on behalf of all the Democratic Caucus … [but] I do think the overwhelming — overwhelming — majority of our membership are not interested in a single penny towards the wall.” In April, the last time the government negotiated funding levels, Senate Democrats said they would not vote for any spending bill that included money for a border wall.
  • In response to Trump’s statement, U.S. Speaker of the House Paul Ryan (R-Wis.) said, "I don't think a government shutdown is necessary and I don't think most people want to see a government shutdown, ourselves included.”

Fourteen members of Alabama State Legislature endorse Moore in special election

Wednesday, August 23

U.S. Department of Energy releases electric grid study

  • The U.S. Department of Energy released its four-month study of electricity markets and electric grid reliability. The report cited the low cost of natural gas as the primary cause of coal and nuclear power plant closures in recent years. In addition, the report also referenced low growth in electricity demand, increased electricity from renewable sources, and federal environmental regulations from the Environmental Protection Agency (EPA) as partially responsible for the declining share of electricity from coal and nuclear plants. The report’s authors encouraged the federal government to adopt policies for further maintaining electric grid reliability and preventing future closings of coal-fired and nuclear plants.

Former Sen. Boxer launches super PACs ads

  • Former Senator Barbara Boxer (D-Calif.) began running ads against Rep. Darrell Issa (R-Calif.) through her super PAC, PAC for a Change. Boxer began the group after the election of Donald Trump. She told POLITICO that the goal of the group is to target California Republicans who she considers to have stayed out of debates over healthcare. She said the anti-Issa ad running on social media is part of the organization’s “Resist and Replace” campaign.

CREW sues Treasury Department over Mnuchin’s trip to Kentucky on eclipse day

  • Citizens for Responsibility and Ethics in Washington (CREW) filed a Freedom of Information Act request to view records related to Treasury Secretary Steven Mnuchin's use of a private government plan to travel to Lexington, Kentucky. The group alleges that statements by Mnuchin's spouse, Louise Linton, show that the two traveled to Kentucky to get a better view of the total solar eclipse. CREW's statement read, in part, "The requested records would shed light on the justification for Secretary Mnuchin’s use of a government plane, rather than a commercial flight, for a trip that seems to have been planned around the solar eclipse and to enable the Secretary to secure a viewpoint in the path of the eclipse’s totality."

First member of Congress endorses Moore in Alabama special election

Thursday, August 24

Mark Meadows and Ed Henry speak with Ballotpedia about Alabama Senate special election

Ninth Circuit judges offer testimony over whether to split the circuit

  • The Senate Judiciary Committee's subcommittee on Privacy, Technology, and the Law met at the Sandra Day O'Connor courthouse in Phoenix for a meeting entitled "Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems." The meeting was the most recent hearing on proposed legislation introduced to split the Ninth Circuit into two or more judicial circuits. Testifying in favor of a circuit split were Senior Judge Diarmuid O'Scannlain and Judge Richard Tallman. Beau Roysden, the deputy division chief of the Arizona attorney general's civil division, also testified in favor of splitting the Ninth Circuit. Testifying against a circuit split were Chief Judge Sidney Thomas and Senior Judge Mary Schroeder. The American Bar Association also submitted a policy letter reaffirming its opposition to splitting the Ninth Circuit. The subcommittee met under the chairmanship of Sen. Jeff Flake (R-Ariz.), who cosponsored legislation in February 2017 with Sen. John McCain (R-Ariz.) to split the Ninth Circuit, which is the largest circuit court in the federal judicial system.
    • For more on proposals to split the Ninth Circuit, read our analysis.

Friday, August 25

Trump signs presidential memo directing DoD to prevent transgender people from enlisting in the military

  • President Donald Trump signed a presidential memo instructing the Defense Department (DoD) to prevent transgender people from enlisting in the military and requested that the department develop a plan to implement the ban by March 23, 2018. The memo also directed the DoD to stop paying for gender reassignment surgeries, unless the surgeries are already in progress. Secretary of Defense James Mattis will have to decide how to handle transgender people currently serving in the armed forces. On July 26, 2017, Trump tweeted about the policy change, writing, "After consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail."

Trump pardons Joe Arpaio


Congress is not in session

The House and Senate are on August recess. Both chambers will return on September 5. Both chambers are technically still in session because some members are conducting pro forma sessions every three days. No legislative business will be worked on during these sessions.

SCOTUS is NOT in session

The U.S. Supreme Court has concluded its 2016 October term. The court will continue to act on emergency petitions throughout the summer and consider petitions for case review in advance of the court’s 2017 October term, which begins on Monday, October 2, 2017.

For more on the court’s recently completed term, read our review.

WHAT'S ON TAP NEXT WEEK

Here's what is happening in federal politics this week. To see what happened in state and local politics, click here.

Tuesday, August 29

Whittemore to take senior status, first of four new judicial vacancies next week

Thursday, August 31

Janice Rogers Brown, D.C. Circuit judge, to retire from judicial service

Andre Davis, senior 4th Circuit judge, to become Baltimore city solicitor

  • Andre Davis, a senior federal judge on the United States Court of Appeals for the 4th Circuit, will retire from judicial service to become the city solicitor of Baltimore, Maryland. A May 3, 2017, report in The Baltimore Sun stated that Davis would begin as city solicitor on September 1. In a statement released on the Fourth Circuit website, Davis said, “The mayor’s invitation to me to join in this profound effort has prompted me to make a decision that I could not have imagined making until the moment I actually made it. In agreeing to join her administration, I take advantage of a unique opportunity to contribute meaningfully to the revitalization of the City I love, and to a community that has nurtured and encouraged me for more than six decades. … With the critical assistance of the dedicated lawyers and staff of the city Law Department, I look forward to the opportunity to tackle the myriad challenges that await us upon the commencement of my work for the Mayor and City Council of Baltimore starting in September.” Under Baltimore’s city charter, as city solicitor, Davis will serve as the city’s legal adviser and will have general supervision and direction over the city’s legal business. The city’s law department has over 85 attorneys and a budget of $10 million dollars. Davis was first appointed to the federal bench by President Bill Clinton, who nominated Davis as a judge on the United States District Court for the District of Maryland. Davis served on that court from 1995 until 2009. In 2009, he was elevated to the Fourth Circuit after a nomination from President Barack Obama. Davis elected to take senior status on the Fourth Circuit in 2014 and was succeeded on the court by Judge Pamela Harris. Davis’ decision to retire therefore will not create a new judicial vacancy on the Fourth Circuit.

Jackson, federal judge in Missouri, to retire from judicial service

  • Judge Carol Jackson of the United States District Court for the Eastern District of Missouri will retire from active judicial service on August 31, 2017. From 2002 to 2009, Judge Jackson served as the chief judge of the district court. Judge Jackson’s decision will create the lone vacancy on the nine-member Missouri court. As an Article III judicial position, Jackson's successor must be nominated by the president, and that nomination is subject to the U.S. Senate's authority to advise and consent on judicial nominees. Since taking office, President Donald Trump (R) has not nominated any federal district judges in states represented by at least one Democratic senator. Missouri is represented in the U.S. Senate by Roy Blunt (R) and Claire McCaskill (D).

Voorhees to take senior status on N.C. federal court, creating vacancy

  • Richard Voorhees, a judge on the United States District Court for the Western District of North Carolina, will opt to take senior status beginning on August 31, 2017. Voorhees’ decision will create the only vacancy on the 5-member North Carolina court. From 1991 to 1998, he served as the chief judge of the district court. Voorhees will be the 29th federal district court judge to leave or change active status this calendar year. By comparison, in 2016, 38 federal district court judges left or changed their active status. As an Article III judicial position, Voorhees’ successor must be nominated by the president and confirmed by a vote of the U.S. Senate. The current vacancy percentage among federal district court judges is over 17%. Only one federal district court nominee, David Nye of the District of Idaho, has been confirmed during the 115th United States Congress.

Where was the president last week?

  • On Sunday, President Donald Trump returned to the White House after a 17-day working vacation.
  • On Monday, Trump participated in a swearing-in ceremony of Woody Johnson as the United States Ambassador to the United Kingdom of Great Britain and Northern Ireland. He then traveled to Fort Myer, Virginia, to outline his administration’s strategy in Afghanistan and South Asia.
  • On Tuesday, Trump traveled to Arizona to tour the border. He then held a campaign-style rally in Phoenix.
  • On Wednesday, Trump signed the Veterans Appeals Improvement and Modernization Act. He then addressed the National Convention of the American Legion in Reno, Nevada.
  • On Friday, Trump departed for Camp David.

Federal Judiciary

  • 134 judicial vacancies in life-term, Article III judicial positions
  • 30 pending nominations to life-term, Article III judicial positions
  • 21 future vacancies to life-term, Article III judicial positions


About

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

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