Making The Courts Great Again:
President Trump’s Transformation of the
Federal Judiciary
Prepared Remarks By
Mike Davis
President of The Article III Project (A3P)
To The
Minnesota Lawyers’ Chapter of the
Federalist Society
Via Zoom (from The Swamp)
Wednesday, April 8, 2020
Noon (Minnesota time)
Good afternoon, everyone. Thank you to Adam Hanson and the rest of the Minnesota Lawyers’ Chapter of the Federalist Society for inviting me to speak today. I am a native Iowan, from Des Moines, so it’s always nice to talk with people who have Midwestern sensibilities – especially after following Justice Gorsuch back to The Swamp more than three years ago.
I also want to thank Lisa Ezell and the rest of national leadership team at The Federalist Society for sponsoring today’s talk.
FedSoc continues to help perform the critical task of building the farm team of constitutionalists, originalists, and textualists across America who can go on to serve in senior government roles, including in the federal judiciary.
We understand that a judge’s job is to interpret the law as written (which is textualism) and commonly understood by the public at the time of the law’s enactment (which is originalism) – not how the judges wish the law were written if they were senators (which is judicial activism).
Thank you for getting involved with FedSoc. And thank you for hearing me out today about President Trump’s historic transformation of the federal judiciary.
Grassley’s Legacy as Senate Judiciary Chairman
Last Congress, I served as the chief counsel for nominations to then-Chairman Chuck Grassley from Iowa on the United States Senate Committee on the Judiciary, which was an honor of a lifetime.
I am particularly pleased to join you today to discuss one of Senator Grassley’s most significant achievements of his 60-year career in public office. Last Congress, Grassley led the historic and record-shattering effort to confirm President Trump’s lifetime-appointed judicial nominees and help the President transform the federal judiciary.
During the first two years of the Trump presidency, Grassley led the effort in confirming 85 new federal judges. This included Justice Gorsuch, Justice Kavanaugh, an all-time record 30 circuit judges, and 53 district judges. At 85 judges appointed under President Trump, we confirmed nearly twice as many judges as the 43 judges that President Obama appointed in his first two years in office.
Moreover, in 2017, President Trump set the all-time record for federal circuit judges appointed during a president’s first year in office, at 12 circuit judges.
And last year, President Trump set the all-time record for federal circuit judges appointed during a president’s first two years in office. The previous record was 22; Trump smashed this record, by appointing 30 federal circuit judges in less than 2 years. And we could have confirmed 36, but then-Senator Jeff Flake blocked us.
Even the liberal American Bar Association rated a sizable number of these judicial nominees as unanimously “well qualified” to serve. The Democrats used to claim that this was their “gold standard.” Yet, the Democrats voted in near-lockstep to oppose most of them. And the reason is clear: Democrats care more about appointing unaccountable liberal judicial activists, who will improperly re-write the laws to reach policy results that Americans do not support.
Senator Grassley’s hard work ensured that the confirmation process was setup and operated in such a way so that President Trump could – and still does – enjoy his record-breaking success in the transformation of the federal judiciary.
In addition to the 85 new federal judges Grassley helped shepherd through the Senate last Congress, he also held hearings for another 50 judicial nominees, including 6 circuit nominees, who he readied for confirmation votes last year. And all 6 of those circuit nominees are now lifetime-appointed federal appellate judges.
While Senator Grassley made this look easy, it certainly was not. Grassley and his team thoroughly vetted these nominees, carefully examined their backgrounds and qualifications, understood their judicial philosophy, and carefully assessed their character and fitness to serve.
Grassley held 38 nomination hearings last Congress – 18 in 2017 and 20 in 2018, generally every other Wednesday that the Senate was in session.
And he generally held committee meetings for debates and votes on nominees almost every Thursday that the Senate was in session. He worked both behind the scenes and in public, to build support for these judicial nominees.
This took a significant amount of his time. But Senator Grassley understands the critical importance of appointing judges who follow the law – instead of re-writing the law. And he also understands the dangers to liberty – in fact, the tyranny – when judges think it is their job to substitute their policy preferences for those of the American people and their elected representatives in Congress.
Fortunately, we are winning. The President is fulfilling his promise to the American people to nominate and appoint judges who are constitutionalists, textualists, and originalists.
Grassley Fights Democrats’ Obstruction and Wins
Battle to Confirm Justice Kavanaugh
We had to overcome historic obstruction by Senate Democrats. The Senate Democrats forced time-wasting and unprecedented cloture votes on 48 of the judicial nominees brought to the Senate floor. How rare are cloture votes for judicial nominees? Only 2 of President Obama’s nominees in the first two years faced cloture votes. Only 3 of President George W. Bush’s nominees from the first two years faced cloture votes. Only 1 for Clinton; 0 for H.W. Bush; 0 for Reagan.
And the Senate Democrats’ obstruction tactics were on full display during the confirmation process for Justice Brett Kavanaugh, who the Senate confirmed on October 7, 2018. Senator Grassley oversaw the most comprehensive and transparent confirmation process in history, including fully investigating a number of allegations against Justice Kavanaugh that turned out to be completely meritless.
We reviewed the most documentation in Supreme Court nomination history – including more than 500,000 pages of Justice Kavanaugh’s records from his prior government legal service.
Additionally, we also reviewed more than 300 written opinions – more than 10,000 pages – that Justice Kavanaugh wrote or joined in his more than 12 years of service on the D.C. Circuit, the most important federal circuit court in America. We also reviewed more than 17,000 pages of Justice Kavanaugh’s academic writings, speeches, and other materials provided to the Senate Judiciary Committee in response to its most expansive questionnaire ever submitted to a nominee.
Even after the 4-day hearing, in which Justice Kavanaugh testified for more than 32 hours, Senate Democrats submitted 1,287 written questions for the record – more than the total number submitted to all prior Supreme Court nominees in our history, combined.
The normal hearing process confirmed for Senator Grassley that Justice Kavanaugh was one of the most qualified, if not the most qualified, Supreme Court nominee in our history. The Senate Democrats and their liberal allies landed no punches. Justice Kavanaugh had gone through 6 prior FBI full-field background investigations, going back to 1993. He had served in the highest positions in the White House and on the second most important court in the land for more than a dozen years. It was very clear that Justice Kavanaugh unquestionably had the character and fitness to serve.
The Senate Democrats and their liberal allies ensured that what should have been a “normal” confirmation hearing was anything but normal. From the opening moments, Senate Democrats conducted themselves more like petulant children than United States senators. They interrupted the Chairman with inappropriate motions and wild yelling. Indeed, throughout the hearing, we experienced Senator Cory Booker – who proclaimed to become Spartacus – willfully leaking confidential records, another senator – Senator Kamala Harris – asking misleading innuendo-laced questions with no basis, and other senators doing other outrageous things.
Leftwing allies followed the disgraceful lead of these senators. With Justice Kavanaugh’s two young daughters in the room, paid protestors shouted vile things, disrupting the hearing and dragging the process on for hours longer than necessary. This mob-like behavior was apparent throughout the process, as angry paid protestors harassed senators, their families, and their staffs.
When the hearing days were over and it was clear that Justice Kavanaugh was a good man with impeccable credentials, Senate Democrats and their leftwing allies went back to their playbook from the Justice Thomas confirmation. But this time, Senate Democrats and their leftwing allies went even farther, accusing Justice Kavanaugh of being a serial gang-rapist who drugged women at parties in his teenage years and even through his 20s. While the FBI found no evidence of this in any of its 6 previous full-field background investigations conducted during Justice Kavanaugh’s 25 years of public service, talking to 150 people who knew him best going back to his childhood, Senator Grassley nonetheless took the allegations seriously.
More than 40 members of Senator Grassley’s staff immediately began investigating these 6 decades-old claims. We interviewed 45 individuals, took 25 statements, and took sworn testimony from both Dr. Christine Blasey Ford and then-Judge Brett Kavanaugh. We worked around the clock. Our work was thorough and comprehensive. Senator Grassley was satisfied it contained all the answers he needed, but some senators demanded a supplemental FBI investigation.
The FBI interviewed 10 people, in addition to the 150 people in the prior 6 FBI full-field, single-scope background investigations. All senators were able to review that supplemental report, and most were satisfied that it confirmed what we already knew and what Justice Kavanaugh had been saying from the beginning: Justice Kavanaugh was innocent of the outrageous allegations made against him. There was no corroboration for any of the 6 claims against Justice Kavanaugh.
The Senate confirmed Justice Kavanaugh by the razor-thin margin of 50 to 48. Elections matter.
After Justice Kavanaugh’s confirmation, Senator Grassley’s staff produced a 414-page report, which documented the tireless work we did in investigating these allegations. This report made clear that some of the people who made the wild accusations against Justice Kavanaugh deserved to be criminally referred to the Justice Department. And Senator Grassley made four criminal referrals, including against Michael Avenatti, also known as the Creepy Porn Lawyer.
The Justice Department apparently has done nothing with these four criminal referrals for more than a year. And The Left felt emboldened to repackage their smears and lies against Justice Kavanaugh – a very good man – at the one-year anniversary of his appointment to the Supreme Court this past October. Senator Grassley sent a follow-up letter seeking an update and answers. We’re still waiting. A year and a half later. We cannot have two systems of justice in America: one of the liberals, and one for the rest of us.
Senator Grassley felt strongly about making public the 414-page report, because it demonstrates his commitment to process – something many Senate Democrats wanted none of. To them, due process is inconvenient when it stands in the way of achieving their political ends. Grassley, however, knows that upholding the constitutional cornerstone of due process, of the presumption of innocence, was worth fighting for.
I strongly believe that the #MeToo demand that we automatically “believe all survivors” – the presumption of guilty – is un-American. And the bogus allegations – the lies and smears – peddled by the likes of Michael Avenatti prove the danger of the #MeToo mob.
Indeed, the #MeToo mob has recently exposed their blatant partisanship with their deafening silence in response to the allegations by Tara Reade. She served as an aide to then-Senator Joe Biden, and she alleges that Biden raped her with his finger – on the job, in the United States Senate. Reade’s allegations are much more relevant, serious, and credible than Dr. Christine Blasey Ford’s. So why the “mainstream” (meaning, liberal) media blackout? Where are the Democrat politicians’ calls for investigations? Where are the #MeToo mob’s demands for Biden’s head? Don’t they #BelieveAllSurvivors?
After coming under intense criticism for her deafening silence, Alyssa Milano recently did a radio appearance. In her worst acting performance ever – even worse than every episode of “Who’s the Boss?” – Milano now claims she wants due process and the presumption of innocence for people accused of sexual assault – because she’s a fan of Joe Biden.
Milano and the #MeToo mob are nothing more than partisan Democrat hacks who weaponize (bogus) sexual-assault allegations against Republicans — and then turn into contortionists to protect Democrats, like Joe Biden.
Thankfully, Senator Grassley helped deliver justice; Justice Kavanaugh prevailed. The American people clearly felt the same way. Indeed, in an election that showed big gains for Democrats across the country, Republicans actually gained two seats in the Senate. Voters booted out of office four Trump-state Senate Democrats who voted against Justice Kavanaugh – Joe Donnelly from Indiana, Heidi Heitkamp from North Dakota, Claire McCaskill from Missouri, and Bill Nelson from Florida. The one Senate Democrat who actually voted the way his constituents wanted him – Joe Manchin from West Virginia – won reelection.
The Article III Project
Even after Justice Kavanaugh’s confirmation and the Senate Republican wins in the 2018 elections, it became crystal clear that The Left would not stop their unrelenting attacks, smears, and lies against Justice Kavanaugh – a very good man – along with many other judicial nominees and judges. They are trying to cow a new Supreme Court justice, before he rules on key cases.
This was a driving force for why I launched The Article III Project – or A3P – last May.
At A3P, we focus on 5 things:
(1) We fight to confirm President Trump’s judicial nominees;
(2) We defend these new judges, like Justice Kavanaugh, from left-wing attacks so they do not succumb to the Linda Greenhouse effect of moving to the left to stop the media criticism;
(3) We defend the integrity of the confirmation process, making it harder for the Democrats to trick weak-kneed Republicans into slowing down or derailing the judicial-confirmation train;
(4) We punch back against the Left’s assaults on judicial independence – including their unconstitutional or otherwise radical court-packing, term-limit, and even impeachment schemes; and
(5) We are preparing for the next Supreme Court vacancy, which will make Justice Kavanaugh’s confirmation look like a walk in the park.
You can check out A3P’s website at article3project.org. Article Number Three Project Dot Org.
And you can follow us on Twitter @Article3Project. At Article Number 3 Project.
Grassley Puts Ball On Tee For Successor
After Grassley handed off the Senate Judiciary gavel to Senator Lindsey Graham this year, Graham has continued Grassley’s outstanding work as the new Senate Judiciary Chairman.
Chairman Graham and Senate Majority Leader Mitch McConnell are showing bold leadership and continuing to help President Trump with his record-breaking success in the confirmation of federal circuit judges and the overall transformation of the federal judiciary.
Over the last 15 months, the Senate has confirmed 108 new Article III judges, including 21 new federal circuit judges — bringing President Trump’s total to 193 new Article III judges, including 51 federal circuit judges.
The Article III Project has an online tool called JudiciaryTracker.com. A3P’s research shows that President Trump continues to set the all-time record for the number of federal circuit judges appointed at this point in any prior presidency. And President Trump beats all but only 1 prior president for the pace of all Article III judges.
At 51 federal circuit judges, President Trump has appointed over 25% of the active judges on the courts of appeals. To put this in perspective, President Obama appointed 55 federal circuit judges in 8 years; President Trump has already appointed 51 in just over 3.
President Trump will easily appoint over 200 Article III judges before the end of his first term. And for Republican-appointed federal judges who are eligible to go senior or retire, there is still a short window over the next few months where President Trump can replace them before we get too close to reelection.
With the appointments of Justice Gorsuch and Justice Kavanaugh, President Trump has reclaimed a Republican-appointed majority on the Supreme Court.
On the critically important federal courts of appeals — the last stop for almost all federal appeals — President Trump has “flipped” the 2nd, 3rd, and 11th Circuits from majority Democrat-appointed to majority Republican-appointed judges, along with building Republican-appointed domination on the 7th Circuit.
The change in the Ninth Circuit is particularly remarkable. There are 29 active judges on this massive court. When President Trump took office, the Democrat-appointed judges outnumbered the Republicans by 11. Remarkably, that number has shrunk to just 3, thanks in big part to the great work of President Trump, current-Senate Judiciary Chairman Lindsey Graham, and Senate Majority Leader Mitch McConnell over the last year. And when President Trump wins re-election, there is the real possibility that President Trump could actually flip the once-out-of-whack Ninth Circuit — something thought impossible before the Trump presidency.
One of the new Ninth Circuit judges is Judge Lawrence VanDyke, President Trump’s 50th circuit judge. Judge VanDyke filled a Nevada-based seat, and he is building out his chambers right now in Reno.
Judge VanDyke:
-Graduated Magna from Harvard Law School;
-Served as the Editor of the Harvard Law Review;
-Clerked for Judge Janice Rodgers Brown on the DC Circuit, the second highest court in the land;
-Is the only person to have served as state solicitor general for 2 states (Nevada and Montana);
-Made 24 federal appellate arguments;
-Served as counsel of record for 39 Supreme Court briefs
Yet the liberal American Bar Association, in a political drive-by shooting timed literally on the eve of VanDyke’s confirmation hearing, inexplicably claimed that VanDyke was “not qualified” to serve. The ABA claimed that VanDyke was biased, especially against the LGBT community — yet the ABA refused to provide any evidence to backup the outlandish claim.
The Article III Project kicked into high gear, highlighting the ABA’s fatally flawed “black box” evaluation process, exposing that the ABA’s lead evaluator donated to VanDyke’s political opponent in the Montana Attorney General race, and showing that the ABA violated its own procedures in handling the evaluation.
The Senate say through the ABA’s political antics and confirmed Judge Lawrence VanDyke for life, while the ABA is still licking its wounds. My friend and former colleague Judge Patrick Bumatay, another new Ninth Circuit judge who happens to be an openly gay Filipino, swore in Judge VanDyke while former Judge Janice Rogers Brown, the trailblazing conservative African-American woman for whom VanDyke clerked, held the Bible.
Like Judges VanDyke and Bumatay, the judges that President Trump have appointed have been stellar. Don’t simply take my word for it: left-wing commentator Ian Millhiser recently wrote the following gems:
-“In less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.”
-“Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement.”
-“It’s tempting to assume that Trump’s judicial appointees share the goonish incompetence of the man who placed them on the bench, but this assumption could not be more wrong.”
-“His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.”
-“In other words, based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”
-“There is simply no recent precedent for one president having such a transformative impact on the courts.”
Does President Trump secretly have Ian Millhiser on his payroll?
In all seriousness, there is still a lot of work to do. There are currently 42 vacancies awaiting judicial nominees, 78% of which are district courts from states where Democrat home-state senators are blocking President Trump’s ability to move forward with nominations by withholding their blue slips. There is 1 vacancy in Minnesota. Once Senator Amy Klobuchar stops running for vice president, we may be able to fill it.
With liberal-activist district judges improperly legislating from the bench through nationwide injunctions, these district-court fights are critically important – and the Article III Project will put pressure on these obstructionist Democrats who are blocking President Trump’s district-court nominees.
Finally, we only have 2 vacancy on the courts of appeals, and President Trump has announced outstanding nominees for each.
We are thrilled with President Trump’s nomination of Judge Justin Walker of Kentucky to serve on the D.C. Circuit, a key federal appellate court that protects all Americans from the arbitrary, harmful government actions by Washington’s out-of-control administrative state.
Judge Walker will bring to the Second Highest Court in the Land his everyday-American upbringing, Midwestern sensibilities, impeccable credentials, conservative judicial philosophy, and brilliant legal mind.
He understands that his modest, but critical, role as a judge is to interpret the law as written — not how he wishes it were written if he were a senator.
We strongly support Judge Walker’s nomination and urge the Senate to confirm his nomination swiftly.
We also strongly support Judge Cory Wilson for the Fifth Circuit.
– Currently serves on the Mississippi Court of Appeals;
– Former Member, Mississippi House of Representatives;
– Former Senior Advisor and Counsel to Mississippi Treasurer
– Former Mississippi Deputy Secretary of State
– Mississippi Aide to Secretary Rumsfeld
– Mississippi 11th Circuit law clerk
– Yale Law School (and Law Journal).
He will be outstanding.
The coronavirus is not going to stop the Senate from safely performing its constitutional duties. The Senate divides up its work among committees. The Judiciary Committee traditionally waits at least 28 days after the nomination and receipt of the paperwork to hold a hearing. Anytime on May 6th or after, the Senate can safely hold hearings in a bigger room, spacing out and rotating senators to ask questions. Senators can also submit written questions. And the Judiciary Committee can safely hold committee votes on these nominees 29 days after the hearing, which is the normal course. The Senate can walk and chew gum at the same time.
President Trump campaigned on the promise of appointing judges in the mold of Justice Scalia. And President Trump has delivered on that promise.
Promises made; promises kept.
Thank you for your continued efforts in helping to find, credential, and appoint judges who share our judicial philosophy.
I am happy to answer your questions or discuss any issue.