How Trump's Judicial Nominees Paved the Way to Restart Federal Executions
President Trump's judicial nominees on the D.C. Circuit, Seventh Circuit and the U.S. Supreme Court all handed down rulings on the administration's reinstatement of the federal death penalty.
July 14, 2020 at 11:03 AM
7 minute read
The U.S. Supreme Court's ruling early Tuesday that allowed authorities to conduct the first federal execution in 17 years was the latest of several court orders issued in part by President Donald Trump's judicial nominees in favor of the execution.
The fight over the new federal death penalty protocol, announced by Attorney General William Barr last year, was tied up in the courts for several months as attorneys for the men scheduled to be executed argued the new policy was unlawful.
U.S. District Judge Tanya Chutkan in Washington, D.C., twice issued injunctions against the federal protocol, which uses a single chemical—pentobarbital sodium—to carry out lethal injections. Chutkan, appointed to the bench by President Barack Obama, first blocked the policy last year, finding it violated the Federal Death Penalty Act.
That order swiftly moved to the Supreme Court, but the justices declined to stay Chutkan's order, and directed the U.S. Court of Appeals for the D.C. Circuit to hear the appeal "with appropriate dispatch."
Justice Samuel Alito, joined by Trump appointees Justices Neil Gorsuch and Brett Kavanaugh, wrote in a separate statement that they believed the administration "has shown that it is very likely to prevail when this question is ultimately decided."
And a divided three-judge panel on the D.C. Circuit, consisting of Clinton appointee, Judge David Tatel, and two Trump nominees, Judges Neomi Rao and Gregory Katsas, earlier this year reversed Chutkan's ruling. Rao and Katsas split on their rationale but both agreed the protocol was lawful. Tatel dissented.
The D.C. Circuit also declined to take up an en banc rehearing of that case, with Tatel saying he believed the case was "en banc worthy" but pointing to the prior direction from the justices to rule promptly on the case.
The Supreme Court late last month declined to take up the case in an unsigned order, over dissents from Justices Sonia Sotomayor and Ruth Bader Ginsburg, giving its blessing to the administration to begin conducting executions.
But on Monday Chutkan again blocked the federal protocol, setting off a dizzying series of filings at a number of courts as the government sought to throw out the district judge's ruling. Her opinion allowed the men to litigate other legal claims, including potential violations of the Eighth Amendment's protections against cruel and unusual punishment, over the newly instated protocol.
"The succession of last-minute rulings is the result of the government's decision to set short execution dates even as many claims, including those addressed here, were pending," Chutkan wrote Monday. "The government is entitled to choose dates, but the court cannot take shortcuts in its obligations in order to accommodate those dates."
The Justice Department swiftly asked Chutkan to stay her ruling, which she rejected, and also asked the D.C. Circuit and the justices to pause her injunction or throw it out entirely. In a response filed with the D.C. Circuit on Monday, attorneys arguing on behalf of the men panned the Justice Department's request to vacate the injunction before a full briefing as "nothing short of extraordinary."
"To plaintiffs' knowledge, neither the Supreme Court nor this court has ever vacated a stay or preliminary injunction against an execution based on the assertion—implied but never outright argued by the government—that the district court's factual findings were clearly erroneous. This case should not be the first," the filing reads.
A number of Big Law firms are representing the federal prisoners in the case, including Hogan Lovells; Wilmer Cutler Pickering Hale and Dorr; and Skadden, Arps, Slate, Meagher & Flom, as well as federal public defenders.
A D.C. Circuit panel consisting of Tatel, Obama nominee Judge Patricia Millett and Judge Thomas Griffith, tapped by President George H.W. Bush, set a rapid briefing schedule over the request for a stay. And in a per curiam order issued late Monday, the judges found at that stage of the proceedings, "we cannot conclude that 'the circumstances justify an exercise of [our] discretion' to issue a stay." They set an expedited briefing schedule, set to culminate with oral arguments toward the end of July.
But just hours later, the Supreme Court issued a 5-4 ruling that threw out Chutkan's injunction and allowed the executions to move forward. The unsigned per curiam order issued by the court found that "the plaintiffs have not established that they are likely to succeed on the merits of their Eighth Amendment claim. That claim faces an exceedingly high bar."
"The plaintiffs in this case have not made the showing required to justify last-minute intervention by a federal court," the opinion reads. "'Last-minute stays' like that issued this morning 'should be the extreme exception, not the norm.'"
In a dissenting opinion, joined by Justices Elena Kagan and Ginsburg, Sotomayor warned the court was setting a "dangerous precedent" and argued the decision to throw out the injunction conflicts with the court's prior decision to let the D.C. Circuit review the execution protocol.
"The court forever deprives respondents of their ability to press a constitutional challenge to their lethal injections, and prevents lower courts from reviewing that challenge. All of that is at sharp odds with this court's own ruling mere months earlier," Sotomayor wrote. "In its hurry to resolve the government's emergency motions, I fear the court has overlooked not only its prior ruling, but also its role in safeguarding robust federal judicial review."
In a separate dissent, Justices Stephen Breyer and Ginsburg called for the court to review the constitutionality of the death penalty altogether.
Other appeals courts had also considered the executions. Family members of the victims of Daniel Lewis Lee, the first man executed under the protocol, had sued in the Southern District of Indiana to delay the execution, arguing they couldn't attend due to health concerns caused by the COVID-19 pandemic.
Chief U.S. District Judge Jane Elizabeth Magnus-Stinson, an Obama nominee, on Friday ordered the execution be delayed. But a three-judge panel on the U.S. Court of Appeals for the Seventh Circuit threw out the injunction over the weekend, finding the alleged violation of the Administrative Procedure Act "lacks any arguable legal basis and is therefore frivolous."
Chief Judge Diane Sykes, a George W. Bush appointee, authored that opinion and was joined by Judges Frank Easterbrook, a Reagan nominee, and Amy Coney Barrett, a Trump nominee. The same panel also rejected a separate appeal by Lee.
However, another panel on the Seventh Circuit, consisting of a majority of Trump appointees, did issue a brief stay for the execution of another federal inmate, Wesley Ira Purkey. In an order issued Monday declining the DOJ's request to reconsider its ruling, Judge Diane Wood, a Clinton nominee, alongside Trump-appointed Judges Michael Brennan and Amy St. Eve, found they "are not persuaded" that their temporary stay "should be set aside."
"This brief stay is necessary in order to complete our proceedings in an orderly way. The government has offered no reason why we should fore‐shorten the time for the filing of a petition for rehearing, or why we should order the mandate to issue forthwith," the order reads. "Nor has it provided any reason to support a finding that it would experience difficulty in re‐scheduling Purkey's execution date for a time after our court has completed its review."
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