Much has been made of President Donald Trump's “transformation” of the federal judiciary, thanks to the record number of appeals court judges that have been confirmed to the bench within the last two years. But how has that transformation actually played out? We have a look at a few opinions written by Trump-appointed judges below, plus a recap of this week's news.

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(l-r) Don Willet, James Ho, and Amul Thapar.

 

Trump Judges Making Waves

When then-White House Counsel Don McGahn spoke at CPAC earlier this year, he described the Trump administration's ideal judicial nominee as someone who had “courage.” That means, as one in-the-know lawyer recently told me, someone who's shown guts, proven they've got a backbone, and basically has a record of taking stances that might be considered unpopular or provocative.

Now that Trump's vaunted judicial machine has been at work for nearly two years, we're starting to get a sense of what exactly McGahn might have envisioned. Trump's picks have written opinions questioning U.S. Supreme Court precedent, and occasionally deploying what has been seen as overly-political rhetoric. Here's a look at some of the opinions that have raised interest, and for some, alarm:

On Auer Deference

The latest opinion to make waves was one released Monday by Judge Amul Thapar on the Sixth Circuit, who took on Auer deference, or broadly the judicial doctrine where courts defer to an administrative agency's interpretation of its own regulation.

The case, U.S. v. Havis, concerned a man who pleaded guilty to a firearm possession charge, and who also has a prior state drug-related conviction. The district court increased his base offense level as a result of the prior conviction, which increased his sentence. In his appeal, Jeffery Havis argued that his drug-related offense shouldn't have led to an enhanced sentence, because U.S. Sentencing Commission guidelines only spelled out an increased sentence for completed drug deal crimes, not attempts.

Thapar wrote the 2-1 majority opinion siding against the Havis, citing circuit precedent. But Thapar took the occasion in a concurrence to cast doubt on the logic of Auer. It even compares the commission's interpretation of sentencing guidelines—which he says the U.S. interprets the text by “adding” to it—to “interpreting a menu of 'hot dogs, hamburgers, and bratwursts' to include pizza.” Read Thapar's hot take—which follows Justices Clarence Thomas and Neil Gorsuch's call last term to reconsider Auer—here.

On Qualified Immunity

Another Trump appointee and SCOTUS shortlister—social media favorite Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit— also stirred some reaction by penning an opinion that questions Supreme Court precedent.

Willett weighed in on the issue of qualified immunity in a case dealing with Texas Medical Board investigators' search of a Dallas man's medical office, through an administrative subpoena. It was a warrantless search, and the Fifth Circuit panel said it violated the man's rights—but also found the agents were entitled to qualified immunity.

But Willett became the latest big voice to take up the mantle against qualified immunity when he questioned in a “concurring dubitante” what he described as the “kudzu-like creep of the modern immunity regime,” arguing that it should not be “immune from thoughtful reappraisal.”

“The current 'yes harm, no foul' imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations,” he wrote.

You can read the opinion here. It invited this reaction from USC Gould School of Law professor Orin Kerr, who tweeted: “I also have concerns with qualified immunity. But if judges want to criticize the Supreme Court's decisions, they should express their personal opinions in law review articles instead of the F.3d.”

On Campaign Contribution Limits

In his first opinion as a Fifth Circuit judge, former Gibson Dunn partner Jim Ho raised plenty of eyebrows. The case dealt with restrictions on campaign contributions, setting a $350 campaign contribution limit for city council elections in Austin, Texas. A three-judge panel upheld the limit, with a majority of the court later declining to rehear the case en banc.

Ho, in a dissenting opinion from the court's denial of the en banc request, derided the contribution limit as an unconstitutional violation of the First Amendment. But in the coda to his opinion, he railed against “big government,” painting campaign contributions as its only antidote.

“[I]f you don't like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter,” Ho wrote. “When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen's prerogative—it becomes a human necessity. This is the inevitable result of a government that would be unrecognizable to our Founders.”

This Week in Trump Watch

>> “The Manhattan federal judge presiding over a lawsuit against the Trump administration over its decision to ask about citizenship on the 2020 U.S. Census rejected a motion from the U.S. Department of Justice on Friday to delay the trial past its scheduled start date in November,” Dan M. Clark reports. The Second Circuit declined to hit pause on the proceeding hours later.

>> There was more movement out of DOJ this week: Matthew Collette, the deputy director of the Civil Division's appellate staff, is leaving his job. The 30-year DOJ veteran joins the list of other career civil servants who've left in the last year, including Doug Letter, formerly the director of Civil Appellate, as well as Joel McElvain, a long time attorney in the division's Federal Programs Branch. More here.

 

>> The Senate Judiciary Committee held a confirmation hearing for four judicial nominees this week, including two Ninth Circuit picks: Perkins Coie partner Eric Miller and Magistrate Judge Bridget Bade. The other two nominees were Covington & Burling of counsel Richard Hertling, nominated to a seat on the U.S. Court of Federal Claims (an Article I court), and former U.S. attorney and Oregon county judge Karin Immergut, up for a district judgeship in Oregon. The hearing, you might have heard, lasted around 40 minutes, with only two Republican senators present. Read our coverage of the hearing here, plus a look at the nominees.

Thanks for checking out our Gavel Tracker! How do we count up these numbers? The count on Article III pending nominations is the sum of all of Trump's nominees to Article III courts, including the U.S. Court of International Trade. Our court-by-court breakdown, however, only looks at Supreme Court, appellate, and district court nominees. Additionally: Our figure for pending nominations includes nominations for future vacancies, as well as existing vacancies.