July 06, 2018
By Bill Rankin
President Donald Trump’s plan to quickly reshape the nation’s federal appeals courts has taken hold in Atlanta, with the infusion of two conservative jurists and another one on the way.
Trump’s imprint on the 11th U.S. Circuit Court of Appeals all but guarantees it will remain one of the nation’s more conservative courts for years to come. The 11th Circuit, which presides over Georgia, Alabama and Florida, often takes on some of the most hotly contested issues of the day: abortion, police brutality, gun control, immigration, the death penalty, gay rights, and discrimination and harassment in the workplace.
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“But it’s often overlooked that 99-plus percent of all cases are decided by the lower courts,” said Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network.
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Trump and Senate Majority Leader Mitch McConnell, R-Ky., have made packing the courts with conservative judges a top priority. During 2017, the Senate confirmed 12 of Trump’s appeals court judges, a record for any president’s first year in office. Nine more have been confirmed this year.
“They’re trying to remake the courts for generations, if they can,” University of Richmond law professor Carl Tobias, who closely tracks judicial nominations, said. “So far, they’re well on their way.”
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Of the 13 federal appeals courts, the 11th Circuit is the second or third most conservative in the country, said Tobias, the Richmond law professor who tracks judicial nominees. “And now, Trump is replacing conservative judges on the 11th Circuit with even more conservative judges,” he said.
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Last year, for example, the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers because they are lesbian or gay. But the federal appeals courts in Chicago and New York later issued contrary opinions, ruling that federal law forbids workplace discrimination based on someone’s sexual orientation.
The 11th Circuit has also made it extremely difficult for plaintiffs to prevail in hostile work environment claims. Following 11th Circuit precedent, lower court judges dismiss most sexual harassment claims before they go to trial.
“As pro-business as the 11th Circuit is, sexual harassment cases are on life support,” Atlanta lawyer Lee Parks said. “It’s like the first feel is free, unless it’s something almost as bad as rape. A lot — and I mean a lot — has to happen to make a successful sexual harassment claim in the 11th Circuit.”
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Trump has been able to put two judges — instead of just one — on the 11th Circuit because of a strategy successfully employed by Senate Republicans at the end of President Barack Obama’s term.
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Just as they refused to vote on Merrick Garland, Obama’s nominee for the U.S. Supreme Court, Senate Republicans also declined to vote on Abdul Kallon, Obama’s pick for a seat on the 11th Circuit. If confirmed, Kallon, a federal judge in Birmingham, would have been the first African-American from Alabama to sit on the Atlanta appeals court.
After Kallon’s nomination died on the vine, the newly elected Trump nominated Newsom to fill the vacancy. The Senate quickly approved him with a 66-31 vote.
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In May, however, Newsom made his mark as a conservative jurist in a case involving allegedly squalid conditions at the Brevard County, Fla., jail.
The suit was filed by inmate Oberist Saunders, who contended the jail’s mental health unit was stifling hot with little or no air circulation. Saunders said he and fellow inmates had to walk barefoot through human feces and urine and sleep on soiled mats placed on the filthy floor, the suit said. It contended jail officials were deliberately indifferent to the inhumane conditions.
In a 2-1 decision, Newsom and Judge Stanley Marcus wrote, “We do not doubt that such tight quarters may cause discomfort,” particularly given the close proximity of the cell’s toilet to the beds. “But for better or worse, comfort is not the Constitution’s test,” they said.
The judges ultimately found that the jail officials were immune from liability and added they took “no particular pleasure” in throwing out Sanders’ case.
Amendment VIII to the U.S. Constitution:•••••
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Nan Aron, president of Alliance for Justice, a liberal judicial advocacy group, expressed concern about Trump’s appointments on the Atlanta appeals court. “(He) is nominating individuals who have troubling records on issues ranging from workers’ rights, to women’s rights, to being on the side of big corporations rather than consumers and everyday people,” she said. “(This) will pose a threat to people who rely on the courts for help when they are harmed or facing injustice.”
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The judges on the 11th U.S. Circuit Court of Appeals, with the years of their appointments and the presidents who nominated them.
» Chief Judge Ed Carnes, 68, 1992, George H.W. Bush
» Judge Gerald Tjoflat, 88, 1975, Gerald Ford
» Judge Stanley Marcus, 72, 1997, Bill Clinton
» Judge Charles Wilson, 63, 1999, Bill Clinton
» Judge Bill Pryor, 56, 2004, George W. Bush
» Judge Beverly Martin, 62, 2010, Barack Obama
» Judge Adalberto Jordan, 56, 2012, Barack Obama
» Judge Robin Rosenbaum, 51, 2014, Barack Obama
» Judge Jill Pryor, 55, 2014, Barack Obama
» Judge Kevin Newsom, 45, 2017, Donald Trump
» Judge Elizabeth Branch, 50, 2018, Donald Trump
» Vacancy created on June 18 when Judge Julie Carnes became a senior judge
Trump has nominated Britt Grant to fill this position.
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