Trump stacking courts with activist judges

SCREEN CAPTURE / CSPAN

Judicial nominee Kenneth Kiyul Lee was interviewed by Sen. Kamala Harris during the Senate Judiciary Committee hearings Wednesday.

Even after Donald Trump is gone from the White House and his dark chapter is subjected to severe analysis, (hopefully, sooner than later) his impact will continue to haunt the country through the record number of conservative judges that he's placing on the bench.

In the first three years of the Trump, the Senate has already confirmed 200 federal judges, and the pace has accelerated under Senate Leader McConnell, who senses time is of essence because of Republican losses in the upcoming Nov. 2020 elections.

In a tense hearing in front of the Senate Judicial Committee, both California senators, Kamala Harris and ranking member Diane Feinstein, tried to delay a vote on Kenneth Kiyul Lee, Donald Trump’s nominee for the 9th U.S. Circuit Court of Appeals.
Democrats on the Senate Judiciary Committee on Wednesday (March 13) wasted no time confronting Lee about decades-old writings on race, HIV and LGBTQ issues.

Sen. Dianne Feinstein, D-Calif., the committee's ranking member, said that she was disappointed that Lee, a Los Angeles attorney and former counsel for the George W. Bush administration, had been granted a hearing at all and hoped that his nomination never makes it to a vote.

In a letter to chair Linsay Graham, Harris and Feinstein cited Lee's failure to turn over more than 75 documents as part of his confirmation questionnaire, including college writings about AIDS, political correctness and feminism.

The Senators noted that this not only reflects an intention to obstruct the vetting process, but also suggests Lee may continue to hold extreme and controversial views, which, if confirmed, would place him well outside the mainstream.

“Mr. Lee’s repeated failure to provide responsive materials to this Committee is a breach of the Committee’s standards and processes — it is not a partisan issue,” the senators wrote.

Since January 2019, Lee has supplemented portions of his record five times, revealing more than 75 articles that he initially failed to disclose.

During Wednesday's hearing, Harris, a former prosecuting attorney, pressed Kenneth Lee, a nominee to the U.S. Court of Appeals for the Ninth Circuit, on his views about voting rights for formerly incarcerated individuals. According to the Sentencing Project, as of 2010, 1 out of every 13 Black voters had lost the right to vote due to felony convictions, in contrast to the only 1 in 56 non-Black voters who had lost their voting rights due to felony convictions.

“Do you believe that disparate impact is relevant in deciding whether a law that disenfranchises an individual convicted of a crime should be upheld?” asked Harris.

Lee refused to answer the question, directly. "I will follow the precedent, whatever it may be," Lee said. In an attempt to end this line of questioning, Lee added, "As a judicial nominee, I think it’s inappropriate to opine on issues that may come up before me if I am confirmed ..."

Two other controversial judicial nominees, Neomi Reo, who had her hearing a day before Lee's hearing, and Brett Kavanaugh's infamous hearing months earlier, used similar phrasing to avoid answering tough questions from Democrats. All of Trump's  recent nominees for judges have been vetted by the Federalist Society, a conservative think tank.

Other writings by Lee that troubled Harris was on the subject of undocumented immigrants' work ethic and 

Feinstein grilled Lee about an article he wrote in 1994 in which he claimed that "nine out of 10 people with AIDS are gay or drug users.”

Like other Trump judicial nominees, when confronted with past writings, Lee expressed regret and embarrassment over the article and said his views have changed. He noted that at 18 he “didn’t know science.”

“I absolutely would not write that today,” Lee said. “I truly regret writing that ... Looking at that now, 26 years later, I am just embarrassed by it.” Lee said that he knows someone living with HIV, and the idea that that person could read his past writings was “mortifying.” He also said his writings were a “misguided attempt” to support the Reagan administration’s policy on HIV.

The two California senators failed to return the blue slip given to senators when a nominee would preside in their state. Senators would write on the blue slip their recommendations on a nominee and traditionally, the Judiciary Committee would abide by the home state senators' opinions. Not returning the blue slip was an obvious indication that Feinstein and Harris objected to Lee.

However, Graham bucked tradition and proceeded with the hearing, angering the senators. "Around here," warned Feinstein, "what goes around, comes around."

Despite objections from Harris and Feinstein, it appears that a vote on Lee's nomination will go forward. 

The reason there are so many openings on the bench is because the GOP dominated Senate, led by Mitch McConnell, stalled or refused to hold hearings on scores of Obama nominees including Merrick Garland, his  choice to replace U.S. Supreme Court Justice Antonin Scalia, who died in February of 2016.

After Trump was elected, the Senate -- still dominated by the Republicans --  has approved a record number of judges nominated by Trump successfully leaning the judiciary to the right and threatening Social Security, Medicare and all the gains in human and civil rights in the last 60 years.

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Senate confirms nomination of controversial Indian American for federal judgeship

NEOMI RAO

In a 53-46 vote strictly along party lines, the US Senate Wednesday (Mar. 13) approve a controversial Indian American for the D.C. Circuit Court of Appeals.

Neomi Rao is the first Indian American woman to serve in this role, which used to be held by now Supreme Court Justice Brett Kavanaugh. She will join Justice Sri Srinivasan, who also serves on the DC Circuit Court of Appeals. Rao is currently serves as the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget. In this capacity she played a key role in regulatory reform.

Before the vote, Sen. Mazie Hirono, D-HI, pointed out that Rao had used her position at  the Office of Information and Regulatory Affairs to strip away environmental protections. “She supported efforts to replace a clean power plan which would have reduced greenhouse gas emissions with a rule that would increase air pollution and could lead up to 1,400 additional premature deaths,” said Hirono.

During hearings before Senate Judiciary Committee, Sen. Kamala Harris questioned Rao on her college-day writings in which she blamed the women who were victims of sexual assault. “Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was her choice,” wrote Rao.

"I just voted NO on advancing Neomi Rao’s nomination to the D.C. Circuit," Harris tweeted. "It's wrong to suggest that sexual assault survivors are responsible for the trauma they've experienced."

Rao's judiciary committee grilling went so badly for her that a week later, she wrote a letter to the Judiciary Committee renouncing her earlier writings. “Sexual assault in all forms, including date rape, is abhorrent,” wrote Rao. “Responsibility for the rape is with the rapist. No woman or man should be subjected to sexual violence, regardless of the clothes they wear or how much alcohol they consumed,” she wrote.

Seventy prominent indian American women wrote a letter to the senate committee condemning Rao's nomination by Donald Trump."We are deeply alarmed by Neomi Rao’s record, particularly around gender rights, and we do not believe that she will bring independence and fairness to the federal bench," read the letter

Indian American activist Deepa Iyer, who is credited with spearheading the effort, told India-West after the Senate vote: "I am deeply disappointed. Through her college writings, her scholarly works, and her tenure at OIRA, Rao has established a pattern of gutting a lot of protections Americans rely on."

Vanita Gupta, president and CEO of The Leadership Conference and former head of the Department of Justice’s Civil Rights Division in the Obama administration on slammed the nomination of Rao.

Gupta said, “What we know of Neomi Rao’s record makes perfectly clear that she is unfit to serve as a fair and impartial judge.” She added, ‘She has demonstrated hostility toward racial and gender equality, sexual assault survivors, LGBTQ rights. and the dire need to address climate change.”

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70 Indian American women object to Neomi Reo's nomination for federal judgeship

WIKIMEDIA COMMONS

Neomi Reo is a controversial choice for judgeship.

IT'S RARE to see members of an ethnic group to publicly oppose the promotion of one of their own to a prominent position.

Yet, that's what's happening after Donald Trump nominated Neomi Rao to the United States Court of Appeals for the District of Columbia. The highly visible seat was formerly occupied by Justice Brett Kavanaugh who is now on the Supreme Court.

"We are deeply alarmed by Neomi Rao’s record, particularly around gender rights, and we do not believe that she will bring independence and fairness to the federal bench," reads the letter opposing Reo's nomination and signed by 70 prominent Indian American human rights activists, law professors, lawyers and survivors of sexual assault and their advocates.

In addition, Reo was sharply questioned by Indian American Sen. Kamala Harris, D-CA., who is on the Senate Judiciary Committee who must approve Reo's nomination.

Harris asked Rao to explain her argument, from her 1993 piece:

“Just as women want to control their education and then choose their career, similarly, they must learn to understand and accept responsibility for their sexuality. The terminology of ‘date rape’ removes the burden of sexual ambiguity from the woman’s shoulders. The controversy has been painted in terms of ‘yes’ and ‘no’, reducing sex to something merely consensual.” (The Feminist Dilemma, 1993)

“In your current view, when does no not mean no?” asked Harris, a former prosecutor and California's Attorney General.

“Senator, no means no,” said Rao. “I regret writing that when I was in college.”

According to HuffPost, Harris continued her aggressive questioning of Rao on her other claims in a 1994 piece:

“Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was a part of her choice.” (Shades of Grey (Yale, 1994)             

“Senator, I was only trying to make the commonsense observation about the relationship between drinking and becoming a victim,” said Rao.

“Do you stand by those comments?” asked Harris.

“I do not,” Rao replied. “I would not express myself that way today.”

If successful Reo, whose hearings began Tuesday (Feb. 6) in front of the Senate Judicial Committee, could be in line for the next SCOTUS opening.

SCREEN CAPTURE

Sen. Kamala Harris, right, questions the views of judicial nominee Neomi Reo.

As conservative as Kavanaugh is, Trump wants to replace him in the D.C. appeals court with Reo, who critics claim is even more extremely radical than the now-Justice Kavanaugh. The Indian Americans' views on LGBTQ rights, climate change, and other subjects have recently produced understandable outrage.

"These writings are not merely inflammatory or controversial," continues the letter. "This is victim-blaming and rape apologist language, and it has no place in our society, let alone the federal judiciary."

She has also questionable views on multiculturalism, LGBTQ rights, and affirmative action poo-poohing advocates. "Their touchy-feely talk of tolerance, they seek to undermine American culture,” Reo writes. 

The Senate Judiciary Committee, the same body that approved Kavanaugh's nomination along party lines, will decide Reo's fate in the coming weeks. With the GOP in the majority, if the committee members vote along party lines, Reo's nomination will most likely be sent to the full Senate for approval.

The question remains on how some Republicans in the committee3 will vote, especially Sen. Joni Ernst, R-Iowa, who recently revealed that she was raped in college. She told Rao that her past writings “give me pause.”

“Not just from my own personal experiences, but regarding a message that we are sending young women everywhere,” said Ernst. “I’ve said time and time again that we need to change the culture around sexual violence.”

Like her obviously coached answers to Harris and other Democrats, Reo said that her views have changed and she no longer believes what she previously wrote.

According to HuffPost, Rao largely ignored questions about whether she would recuse herself from cases that are related to her current job as the administrator of the Office of Informational and Regulatory Affairs. The agency is a division of the Office of Management and Budget that evaluates federal government regulations, and in her role here, Rao has helped the Trump administration weaken policies relating to clean power plants, sexual assault regulations and race discrimination in housing.

Unlike the successful nomination of Shri Srnivasan by President Obama to the same court, which drew the whole-hearted support of the Indian American community, Reo's nomination has drawn negative reactions from the South Asian community. 

"Her controversial writings set the stage for the damage she has done as President Trump's administrator of the Office of Information and Regulatory Affairs (OIRA), where she has led the Trump administration's aggressive regulatory agenda to undermine civil rights and public protections," said Vanita Gupta, CEO of Leadership Conference on Civil and Human Rights and former head of the Civil Rights division of the DOJ.

"Rao's demonstrated hostility to the civil and human rights of all should disqualify her from a lifetime appointment on the federal judiciary. We urge all senators to reject her nomination," Gupta said in a strongly worded statement.

"Neomi Rao made excuses for sexual assault, blocked women's access to reproductive health and would allow healthcare providers to deny care to LGBTQ patients," said Indian American Rep. Pramila Jayapal, D-Wash.

"This is simply not appropriate for someone who wishes to serve on a federal bench," said Jayapal, the first Indian American woman ever elected to the House of Representatives. The Senate Judiciary Committee "should reject" Rao, she said on Feb. 4.

Letter from 70 South Asian Women Civil and Human Rights Lawyers, Law Professors, and Survivor Advocates

February 4, 2019

Dear Chairman Graham and Ranking Member Feinstein:

We write to share our concerns with you and the members of the Senate Judiciary Committee regarding the confirmation of Neomi Rao to the United States Court of Appeals for the District of Columbia Circuit.

We are a group of 70 South Asian American women who are civil and human rights lawyers, law professors, and advocates of survivors of violence. We firmly believe in the importance of a diverse federal judiciary, and it is not lost upon us that if confirmed, Neomi Rao would be the first South Asian American woman to sit on a federal appellate court. However, we are deeply alarmed by Neomi Rao’s record, particularly around gender rights, and we do not believe that she will bring independence and fairness to the federal bench.

As the head of the Office of Information and Regulatory Affairs (OIRA), Rao is the Trump Administration’s point person to deregulate public protections that benefit all Americans. Rao’s policy decisions have led to the rollbacks of public protections relied upon by vulnerable communities including women, survivors of sexual violence, and LGBTQ people. In 2017, Rao gutted an equal pay initiative that required employers to collect data on wages by sex, race, and ethnicity,claiming that it was “unnecessarily burdensome.” OIRA also vetted the Department of Education’s draft proposed rules that seek to undermine civil rights protections for sexual assault survivors in schools under Title IX. According tocivil rights organizations, these proposed rules would discourage reporting of sexual assault, prioritize assailants over survivors, and only consider the cost savings to schools without any consideration of the costs of sexual violence on survivors. Rao is also in the process of finalizing a new rule that would allow health care providers to deny medical care to LGBTQ patients, women seeking reproductive health care, and others based on the provider’s “conscientious objections.” Rao’s proclivity to choose institutions and corporations over people is deeply troubling.

In addition, Rao has a long history of alarming viewpoints about sexual assault, multiculturalism, LGBTQ rights, affirmative action, and people with disabilities. Here are a few of them:

“Unless someone made her drinks undetectably strong or forced them down her throat, a woman, like a man, decides when and how much to drink. And if she drinks to the point where she can no longer choose, well, getting to that point was a part of her choice.” (Shades of Grey (Yale, 1994)             

“Just as women want to control their education and then choose their career, similarly, they must learn to understand and accept responsibility for their sexuality. The terminology of ‘date rape’ removes the burden of sexual ambiguity from the woman’s shoulders. The controversy has been painted in terms of ‘yes’ and ‘no’, reducing sex to something merely consensual.” (The Feminist Dilemma, 1993)

These writings are not merely inflammatory or controversial. This is victim-blaming and rape apologist language, and it has no place in our society, let alone the federal judiciary.

Similarly, Rao has expressed viewpoints on multiculturalism, LGBTQ rights, and affirmative action that are problematic. She has derided those working for diversity as “multiculturalists”  (“[U]nderneath their touchy-feely talk of tolerance, they seek to undermine American culture”), and diminished  the long-standing struggle for LGBTQ rights as part of “[t]rendy political movements.” More recently, in a 2009 law review article evaluating Justice Ginsberg’s equality jurisprudence, Rao wrote about affirmative action programs: “They confer benefits along the lines of race and use race as a proxy for disadvantage and inability to compete on an equal footing. This then perversely reinforces the historic associations between race and disadvantage.”  And in a 2013 law review article, Rao criticized the Supreme Court’s decision in United States v. Windsor (which struck down the Defense of Marriage Act) arguing that politicians, rather than courts, should resolve such issues.

Given the significant role that she has played to roll back public protections while at OIRA, and her history of troubling viewpoints and writings, we are concerned that Neomi Rao will not bring an independent and impartial perspective to the federal judiciary. We urge Senators to thoroughly and carefully vet and examine Neomi Rao’s record, and not fast-track her confirmation to a lifetime judicial appointment.

Sincerely,

(Signed by 70 Indian American women.)

Democratic senators will oppose Trump's Asian American judicial picks, and that's OK

ROLL CALL

California Senators Dianne Feinstein and Kamala Harris vow to oppose the nominations of Patrick Bumatay,
 lower left, and Kenneth Kiyul Lee, lower right, to the Ninth Circuit Court of Appeals

A POLITICAL HAND GRENADE was lobbed by Donald Trump at the Ninth Circuit Court of Appeals placing Senators Dianne Feinstein and Kamala Harris in tough spot.

Trump nominated five appeals court judicial nominees are Joseph F. Bianco and Michael H. Park for the 2nd Circuit Court of Appeals; Patrick J. Bumatay, Kenneth Kiyul Lee and Daniel P. Collins for the 9th Circuit Court of Appeals.

All five were all recommended by the ultra-conservative Federalist Society, which approves candidates based on their adherence to conservative values. The two Trump newest picks for the U.S. Supreme Court, Neil Gorsuch and Brett Kavanaugh were on the list of candidates approved by and are members of the Federalist Society.

So, even though Park, Bumatay and Lee are Asian Americans, their nominations are problematic and viewed as Trump's attempt an end-round against Feinstein's and Harris' expected opposition.

In nominating this latest wave of would-be jurists, Trump continues his mission to remake the federal judgeships to reflect his radical agenda.

The nominations for the 9th Circuit, in particular, were seen as a slap at Senators Diane Feinstein and Kamala Harris, both members of the Senate Judiciary Committee and outspoken to their opposition to the nomination of Kavanaugh.

Traditionally, the circuit court judges are approved by the home state senators prior to their nominations but negotiations between the senators and the White House couldn't come to an agreement. The California senators vowed to oppose Trump's nominees even though their opposition might appear to divide the Asian American and LGBTQ communities, which have largely thrown their support to the senators.

Bumatay, if appointed to the bench, would  become the second openly gay jurist on a circuit court of appeals but the first in the 9th circuit.

Bumatay, a Filipino American, is an Assistant United States Attorney in the U.S. Attorney’s Office for the Southern District of California, where he is a member of the Organized Crime and Drug Enforcement Task Forces Section. He is currently detailed to the Office of the Attorney General Jeff Sessions, where he serves as advisor to Sessions on the national opioid crisis and transnational organized crime.

Bumatay has also served in other positions in the DOJ and graduating fromfrom Yale University and his earning his J.D. from Harvard Law School, he clerked for several judges.

He is a member of the National Filipino American Lawyers Association (NFALA), the National Asian Pacific American Bar Association, the Tom Homann LGBT Law Association, and the Federal Bar Association. Bumatay is also a member of the Federalist Society.

Lee is a partner in the Los Angeles office of Jenner & Block LLP, where his practice focuses on appellate litigation and internal investigations, and where he serves on the firm’s Diversity & Inclusion Committee. Lee provides pro bono, or free, legal representation to indigent and incarcerated clients, according to his bio.

Lee also once served as Associate Counsel to President George W. Bush.

After law school, Lee clerked for Judge Emilio M. Garza of the U.S. Court of Appeals for the 5th Circuit. Lee earned his A.B. from Cornell University, summa cum laude,and his J.D., magna cum laude, from Harvard Law School. The Federalist Society likes him for his position on the Affordable Care Act.

Nominated for the 2nd Circuit Court of Appeals, Park is a partner in the New York City office of Consovoy McCarthy Park PLLC where he focuses on securities, criminal, commercial, administrative, and constitutional law, The White House said. Park served as an Attorney-Adviser in the U.S. Department of Justice, Office of Legal Counsel, where he advised the White House and other Executive Branch officials on a variety of complex matters, according to his bio.

Park earned his B.A. from Princeton University and his J.D. from Yale Law School, after which he clerked for Supreme Court Justice Samuel A. Alito.

He’s an adjunct professor at the Antonin Scalia Law School at George Mason University, a member of the Board of Trustees of the Supreme Court Historical Society, the Board of Directors of Operation Exodus Inner City, and the Asian American Bar Association of New York, which listed him one of the Best Lawyers Under 40’ in 2013.

Upon hearing about Trump's list of judges, Feinstein issued a sharp press statement:

I repeatedly told the White House I wanted to reach an agreement on a package of 9th Circuit nominees, but last night the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested.

I met with Don McGahn (Trump's White House counsel) on June 27 to discuss the vacancies and explained that Senator Harris and I strongly opposed Daniel Collins. I also told him Kenneth Lee had problems because he failed to disclose to our judicial selection committees controversial writings on voting rights and affirmative action.

Last week, a reporter contacted my office stating that multiple sources close to the White House said I had rejected an offer that included Lucy Koh, James Rogan and Daniel Collins. This was false; no offer had been made or rejected—either formally or informally. In fact, as soon as I learned from the reporter about this alleged package I immediately wrote to Don McGahn saying I would accept this White House proposal of Lucy Koh, James Rogan and a third nominee from the White House’s list. There was no response to my letter.

The decision to move forward with these nominees without consultation or responding to my acceptance of the White House offer reflects President Trump’s desire to remake the court. I expect my blue slips to be honored as I was acting in good faith.

The “blue slip” refers to a gentleman’s agreement, not a hard rule, that allows a U.S. senator to reject judicial nominees for their home state by refusing to return a positive blue slip to the Senate Judiciary Committee chairman.

If the Republicans on the Judicial Committee ignore Feinstein's objections, they could also see their "blue slips" ignored when they are in the minority.

The 9th Circuit Court is the largest in the nation with 29 judges. Largely seen as a liberal court, it has rejected or stayed several of Trump's attempts to make his executive orders into law, including the Muslim ban, the end of DACA and the withdrawal of federal funds from so-called sanctuary cities.

“Instead of working with our office to identify consensus nominees for the 9th Circuit, the White House continues to try to pack the courts with partisan judges who will blindly support the President’s agenda, instead of acting as an independent check on this Administration,” Lily Adams, Harris’ communications director, said in a statement.

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Michael Flynn: 'If I did a 10th of what she did, I would be in jail today!''

Gen. Michael Flynn, subject of a Senate investigation, during the Republican convention last summer.

CONSIDERING one of the biggest stories in decades is Russian involvement in the 2016 presidential elections, I thought it fitting that we take a look back.

During the Republican National Convention last summer, Gen. Michael Flynn gave a tough, no-mercy speech against Hillary Clinton's use of an unsecured server. During his speech, he encouraged the audience to chant, "Lock her up! Lock her up!"

Anybody see the irony here?

His ties to Russia and other foreign governments made him a security risk. Yet, despite warnings from President Obama and intelligence agencies, Donald Trump went ahead and appointed him as the National Security Advisor.

Flynn didn't mention that he was a lobbyist for Turkey, that he consulted with Russian envoys before Trump took office, that he was a favorite guest of the Kremlin and he lied to Vice President Mike Pence.

He was the subject of much of today's (April 8) hearings by the Senate Judiciary Committee. Former acting attorney general Sally Yates testified that she gave the White House three separate warnings about Flynn as a security risk yet the Trump staffers didn't heed her.

In this clip, he said, "If I did a 10th of what she did, I would be in jail!" Some of what Flynn did could be interpreted as treason, a much, much more serious charge than Hillary's carelessness with her emails.

All I have to say is, LOCK HIM UP!