An Insider's Perspective On President Trump's Transformation Of The Federal Judiciary
Mike Davis, former Chief Nominations Counsel to former Senate Judiciary Chairman Chuck Grassley, played a key role in the confirmation process.
President Donald Trump will soon achieve a major milestone: 100 federal judges confirmed during his administration.
During the first two years of his presidency, two Supreme Court justices and 83 lower-court judges secured confirmation, in the 115th Congress. In the second half of his term to date, the 116th Congress, he’s seen 12 judges confirmed, bringing his total number of Article III judicial appointees to 97. With the Senate now back from its Easter recess and with 43 nominees out of the Senate Judiciary Committee and awaiting floor votes, President Trump should hit — and, in fact, blow past — the 100-judge marker very soon.
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President Trump will go down in history as an extremely effective and consequential president on judicial nominations, even if his administration ends tomorrow (as many of his detractors fervently hope). But he shouldn’t get all the credit for confirmations; so much of it belongs to his former White House Counsel, Don McGahn, and the Senate Republicans, ably led by Majority Leader Mitch McConnell (R-Kentucky).
They’re not the only ones who deserve kudos. Congratulations — and thanks, if you’re a supporter of the Trump appointments — should also go to Senator Chuck Grassley (R-Iowa), former chairman of the Senate Judiciary Committee. The SJC plays a key gatekeeper role when it comes to judicial nominations, and then-Chairman Grassley worked tirelessly to keep that gate open for Trump’s judicial picks in the last Congress, even in the face of strong Democratic opposition.
Gratitude also goes to the wind beneath the senators’ wings: the staffers who work tirelessly, for much less pay than they could earn in the private sector, to make sure the senators can do their jobs effectively. (Senator Amy Klobuchar, we’re looking at you.)
A critical staffer on judicial nominations, Michael Davis, former Chief Nominations Counsel to then-Chairman Grassley, spoke earlier this month before the Columbia Federalist Society. I refer to Davis as “critical,” but that might be an understatement. He played a crucial role in the Trump judicial revolution, which is why the Republican National Lawyers Association (RNLA) recently honored him with the 2019 Betty Murphy Award.
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Davis opened his remarks by saying how nice it was to be back on the Columbia campus — which he last visited in December 2016, when he and a few other former law clerks to then-Judge Neil M. Gorsuch tagged along with Judge Gorsuch when he came to New York to interview with President-elect Donald Trump at Trump Tower. On that same trip, they paid a visit to Columbia, Gorsuch’s undergraduate alma mater.
As it turns out, Justice Gorsuch was just the beginning of Trump’s tremendous transformation of the federal judiciary. The same Senate that confirmed Gorsuch went on to confirm Justice Brett Kavanaugh, a record-setting 30 circuit judges, and 53 district judges on top of that. (After Judge Gorsuch became Justice Gorsuch, Mike Davis clerked for NMG at SCOTUS, then went to work for Senator Grassley on the Senate Judiciary Committee.)
Davis offered effusive praise for Senator Grassley and his former colleagues on the Grassley staff. Senator Grassley and his team vetted nominees, worked both behind the scenes and in public to build support for them, and overcame what Davis described as “historic obstruction by Senate Democrats,” who required cloture votes (procedural votes to end debate) on 63 percent of Trump’s judicial nominees — compared to fewer than 6 percent of all judges confirmed since 1949.
Davis praised Senator Grassley especially for his handling of the Kavanaugh nomination process, criticizing the Democrats for how they conducted themselves. According to Davis, from the opening moments of the initial hearings, when the Democratic Senators acted like “petulant children” by lodging baseless procedural objections, to their launching of “outrageous allegations” against the nominee after their initial attacks failed, the Democrats engaged in “mob-like behavior” that turned “what should have been a normal confirmation process into anything but.”
During an extended question-and-answer session, Davis fielded a wide range of questions about the nomination and confirmation process. I asked a two-part query: did Davis put much stock in the rumors about the possible retirement of Justice Clarence Thomas, and if another vacancy on the Supreme Court were to arise, did he have a favorite as to who might get the nod?
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On whether he puts any stock in the Thomas retirement rumors, Davis was succinct: “No.” (See also this recent comment from Justice Thomas himself.) Davis added that if Justice Ruth Bader Ginsburg were to leave the Court during the Trump presidency, the resulting confirmation battle “will make Kavanaugh look like a walk in the park.”
As for possible future SCOTUS nominees, Davis said that if another vacancy arises, “there will be no shortage of great candidates” – thanks in part to all the talented jurists that President Trump has already added to the federal bench.
Of course Davis mentioned Judge Amy Coney Barrett of the Seventh Circuit, widely regarded as a (if not the) top contender for the next vacancy. But he also gave shout-outs to other finalists for the nomination that ultimately went to Justice Kavanaugh, including Judge Raymond Kethledge and Judge Amul Thapar of the Sixth Circuit, who both have long and distinguished track records as superb (and solidly conservative) jurists.
As for newer additions to the federal bench — Judge Kethledge and Judge Thapar were both first appointed by President George W. Bush, although Judge Thapar was elevated by President Trump (his first circuit-court appointment, in fact) — Davis highlighted a number of prominent women judges appointed by President Trump. They included Judges Neomi Rao of the D.C. Circuit (“a very good addition to that court”), Allison Jones Rushing of the Fourth Circuit (“she’ll be a star”), Joan Larsen of the Sixth Circuit, Allison Eid of the Tenth Circuit, and Britt Grant of the Eleventh Circuit.
Davis also had warm words for a number of white male Trump appointees, including Judge Greg Katsas of the D.C. Circuit and Judge Andy Oldham of the Fifth Circuit. But he acknowledged that when it comes to making it to SCOTUS, being a white male is politically not a plus right now; Davis opined that if Judge Katsas “were a female or a minority, he’d be on the short list.”
A number of questions asked about Senator Grassley’s handling of “blue slips,” which his predecessor as SJC chairman, Senator Patrick Leahy (D-Vermont), treated as giving home-state senators effective “veto power” over nominees from their state. Senator Grassley adopted a more flexible approach, at least as to circuit-court nominees, treating blue slips as requiring consultation between the White House and the home-state senators, but not treating them as a veto. (For district-court and U.S. attorney nominees, the “blue slip as veto” approach remains in effect.)
Davis made a number of observations. First, although blue slips have been around for about a century (since 1917), for most of the 100 or so years, they have not been treated as vetoes. In fact, only two former chairmen, Senator Patrick Leahy (D-Vermont) and Senator James Eastland (D-Mississippi), treated them as vetoes.
Second, Senator Eastland’s use of blue slips was particularly ignominious. A segregationist Democrat, Eastland crafted his blue-slip policy so that fellow southern senators could block judicial nominees sympathetic to civil rights.
Third, much of the original rationale for blue slips has eroded over time. Decades ago, home-state senators and their staffers were in a much better position than outsiders to know about what nominees from their states were truly like. But in today’s information age, in which information and individuals flow freely across state and even national lines, the “what’s this person really like” rationale no longer carries the same weight.
At the same time, even if blue slips aren’t treated as vetoes, Davis acknowledged that the support of home-state senators still matters. He said that, regardless of the formal or technical treatment of blue slips, “it’s very hard to run over both home-state senators – when both senators oppose a nominee, the nominee lacks a champion in the Senate.”
Davis made this observation in response to a question from me about what I view (and what Davis also views) as the deeply unfair treatment of Ryan Bounds, whose nomination to the Ninth Circuit was defeated based primarily on articles he wrote more than two decades ago as an undergraduate at Stanford.
“Ryan Bounds, who is a friend of mine, was clearly qualified — and not a rabid right-wing bomb thrower like me,” Davis said. “So he wrote some stupid things in college -– that doesn’t make him a racist, sexist, or homophobe.”
“Is this really the standard we’re going to use? Take some politically incorrect thing someone wrote back in college and treat it as a career death sentence?”
Davis urged Senator Tim Scott and Senator Marco Rubio, whose opposition to Bounds proved fatal to the nomination, to reconsider their positions — and argued that Bounds should be renominated and confirmed.
At the end of the day, the current treatment of blue slips reflects the current state of the nomination and confirmation process: for better or worse, it’s all about politics. Individuals who are interested in working on judicial nominations – whether in the White House, the Justice Department’s Office of Legal Policy, or the Senate Judiciary Committee – need to think not just like lawyers, but also like political operatives. Whether a nominee wins confirmation turns not just on their legal record and résumé, but on a whole host of complex considerations relating to the broader political climate.
Playing this game of three-dimensional chess is part of what makes working on judicial nominations so enjoyable; indeed, one could tell from his enthusiastic speaking style that Davis loved the work. And the importance of the judicial confirmation process, whether you’re a conservative or libertarian who belongs to the Federalist Society or a liberal or progressive who belongs to the American Constitution Society or Demand Justice, cannot be denied.
“I’m deeply proud of my work on judicial nominations and my service to Senator Grassley, my home-state senator,” Davis said. “And I hope all of you will consider stints in public service as well.”
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David Lat, the founding editor of Above the Law, is a journalist, speaker, and novelist. His first book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
