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Constitutional Law

DOJ nominees hedge on whether court orders must always be followed

By Debra Cassens Weiss

February 27, 2025, 3:24 pm CST

Two Department of Justice nominees refused to say whether court orders must always be followed during questioning before the Senate Judiciary Committee on Wednesday.

D. John Sauer, the U.S. solicitor general nominee, said, “Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” Law.com reports.

But Sauer also said “some historians might think we’d be better off” if the 1944 U.S. Supreme Court decision Korematsu v. United States had not been followed. Korematsu upheld an executive order calling for the imprisonment of Japanese Americans during World War II.

In any event, Sauer said, the idea that President Donald Trump would defy a court order is “not a plausible scenario.”

Sauer is a former Missouri solicitor general who clerked for the late Justice Antonin Scalia. He successfully represented Trump before the Supreme Court in the 2020 election-interference case against him. The July 2024 decision held that presidents have “absolute immunity” from criminal prosecution when exercising core constitutional powers.

Other publications with Senate Judiciary Committee coverage include Bloomberg Law, Law360, the Washington Post and Politico.

Aaron Reitz, nominated to lead the DOJ’s Office of Legal Policy, told senators that it would be “too hypothetical” to comment on whether litigants can defy court orders based on a moral disagreement. Reitz is currently the chief of staff for Republican U.S. Sen. Ted Cruz of Texas.

The Washington Post highlighted two other answers given by Reitz.

The first: “There is no hard and fast rule in all instances in which a litigant must comply with all or some or various parts of a judicial decision,” Reitz said. “It is so fact-, law- and case-specific that one cannot speak generally.”

The second: “My position reflects a fairly mainstream view within right-of-center jurisprudential circles, which is simply to suggest that various Supreme Court or Court of Appeals decisions are more limited in scope than maybe our friends who share a different jurisprudential view of Supreme Court holdings would suggest.”

During the hearing, Reitz was asked about his post on X, formerly known as Twitter, after a federal judge blocked a Texas abortion ban enacted during the COVID-19 pandemic.

Reitz wrote that the judge “has made his decision. Now let him enforce it.” The social media post echoed an “apocryphal quote attributed to Andrew Jackson in response to a much earlier court ruling,” according to the Washington Post.

According to Law360, Reitz said the social media post reflects “a conservative view of Article III and the role of courts and their ability to bind parties that are not litigants to the case before it.”

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3. Can Trump constitutionally install his nominees…

Constitutional Law

Can Trump constitutionally install his nominees with recess appointments? Would Scalia be ‘aghast’?

By Debra Cassens Weiss

November 18, 2024, 11:58 am CST

Updated: Can President-elect Donald Trump use recess appointments to install his Cabinet nominees?

A 2014 U.S. Supreme Court decision that blocked recess appointments by former President Barack Obama shows a path forward. But some commentators are suggesting that conservatives on the current court could repudiate the opinion and narrow that path.

Trump raised the idea of recess appointments in a post on X, formerly known as Twitter, writing Nov. 10 that any new U.S. Senate leader must agree to recess appointments.

“We need positions filled immediately!” Trump wrote.

Article II, Section 2 of the U.S. Constitution provides that a president nominates officers of the United States “with the advice and consent of the Senate,” according to an overview by the Guardian.

The recess appointments clause in Section 2 provides, however, that a president “shall have power to fill up all vacancies that may happen during the recess of the Senate” by granting commissions that expire at the end of the next session.

Trump’s plan could play out with a concurrent resolution by the U.S. House of Representatives to adjourn the House and Senate, according to Edward Whelan, a senior fellow at the Ethics and Public Policy Center, a conservative Washington, D.C.-based think tank and advocacy group.

The Senate could adopt the resolution, with an adjournment of at least 10 days, during which Trump makes his recess appointments, Whelan wrote at the National Review.

An “obscure and never-before-used provision of the Constitution,” Article II, Section 3, could be used if the Senate and the House fail to go along with Trump’s call for adjournment, according to an op-ed in the Washington Post by Whelan. The provision states that “in case of disagreement” between the houses of Congress “with respect to the time of adjournment,” a president “may adjourn them to such time as he shall think proper.”

Trump would then call his adjournment lasting at least 10 days and would make his recess appointments during the intrasession recess.

And if there is a legal challenge, the 2014 Supreme Court decision would come into play, according to a post at Balls and Strikes by Madiba K. Dennie, an attorney, a columnist and the author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back.

The decision, NLRB v. Canning, held that Obama lacked the power to make recess appointments during a three-day recess because the period was too short. Looking to historical practice, the opinion by then-Justice Stephen Breyer said a recess of less than 10 days is “presumptively too short” for a recess appointment.

At the time, the Senate was holding pro forma sessions every Tuesday and Friday in an effort to block recess appointments by Obama.

A concurrence by then-Justice Antonin Scalia would have gone further than Breyer’s opinion, according to Balls and Strikes. Scalia said recess appointments can only be made between formal intersession breaks of Congress—which are the breaks between legislative sessions—and only when vacancies happen during those breaks.

Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito joined Scalia’s opinion.

The Supreme Court might adopt Scalia’s position, Whelan wrote in another post at the National Review. Roberts, Thomas and Alito already indicated that they agree with Scalia’s concurrence.

And “it’s a very safe bet” that Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett would agree if “looking at the issues afresh,” Whelan wrote. They may not be so inclined now, however, because of stare decisis or justiciability issues.

If Scalia was alive today, Whelan wrote in the Washington Post, he “would be aghast at the notion” that a president could call an intrasession recess for bypassing Senate consent to nominations.

The debate over recess appointments came amid Trump’s plan to nominate former U.S. Rep. Matt Gaetz of Florida as the U.S. attorney general. Gaetz withdrew Thursday.

Hat tip to the Volokh Conspiracy and How Appealing.

See also:

House speaker moves to block Senate Judiciary Committee from seeing Gaetz ethics report

Gaetz resigned days before ethics investigation report expected

Updated Nov. 21 at 4:15 p.m. to report on the nomination withdrawal of former U.S. Rep. Matt Gaetz of Florida.

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3. Conservative faction pushes judge nominees…

Judiciary

Conservative faction pushes judge nominees who are ‘even more bold and more conservative’

By Debra Cassens Weiss

October 15, 2024, 10:02 am CDT

Former President Donald Trump has broken with leaders of the conservative Federalist Society, who failed to voice their support when he tried to overturn the 2020 election and when prosecutors charged him with crimes.

Instead, the Wall Street Journal reports, Trump “has gravitated to more-combative lawyers outside the conservative legal establishment who have said they want to hobble regulatory agencies and concentrate power in the White House.”

These lawyers are part of a rising conservative faction that includes America First Legal, a conservative legal group founded by nonlawyer and former Trump adviser Stephen Miller to combat “the left’s radical and lawless agenda.”

One Republican legal activist pushing for pro-Trump judicial nominees is Mike Davis, according to the Wall Street Journal. Future nominees must be “even more bold and more conservative and more fearless” than those appointed in Trump’s first term, Davis said.

Davis likes judges following the model of conservatives on the 5th U.S. Circuit Court of Appeals at New Orleans. The Wall Street Journal described the appeals court as “a hothouse of conservative jurisprudence under the influence of some of the brashest and most aggressive first-term Trump appointees.”

The up-and-coming conservative faction wants to see Trump appoint more judges like U.S. District Judge Aileen Cannon of the Southern District of Florida, who dismissed the classified documents case against Trump, according to the article. She was mentioned as one of the “up-and-comers to watch” by former White House counsel Donald McGahn during a September conference.

Hat tip to the Volokh Conspiracy.

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3. ‘Kennedy quiz’ stumps some federal judicial…

Judiciary

‘Kennedy quiz’ stumps some federal judicial nominees; subjects include collateral estoppel and Article V

By Debra Cassens Weiss

February 28, 2024, 1:42 pm CST

Federal judicial nominees can expect a grilling on the law from Republican U.S. Sen. John Kennedy of Louisiana, a member of the Senate Judiciary Committee.

Kennedy, a lawyer who was an adjunct law professor at Louisiana State University, asks nominees about legal concepts, the U.S. Constitution, recent U.S. Supreme Court cases and other legal information.

Bloomberg Law has the story.

Nick Xenakis, former general counsel for the Senate Judiciary Committee, told Bloomberg Law that every nominee he spoke with before their committee hearings was trying to get ready for the “Kennedy quiz.”

Kennedy asked one nominee of President Joe Biden who later won confirmation, Sara E. Hill, to define collateral estoppel, to contrast a stay order with an injunction, to explain multidistrict litigation and to answer questions about constitutional amendments, ABC 15 News reported in November.

But some nominees asked to withdraw their nominations following Kennedy’s questioning. Charnelle Bjelkengren, another nominee of Biden, was one of them. According to Bloomberg Law, she “flubbed a quiz about Articles II and V of the U.S. Constitution.”

Another was former Federal Election Commission chair Matthew Petersen, a nominee of former President Donald Trump. According to Bloomberg Law, he “wasn’t able to answer any Kennedy questions about trial procedure and the law. Petersen had exclusively practiced administrative law and never tried a case.”

Kennedy told Bloomberg Law that he taught law students for 15 years, “and these are the kinds of questions that I would expect my students to know the answer to.”

But critics say Kennedy’s quizzes don’t reflect the realities of judging.

Kennedy “doesn’t seem to recognize that judges have access to libraries,” said Jake Faleschini, justice program director at the Alliance for Justice, in an interview with Bloomberg Law. “It is far more important that judicial nominees have the humility and research skills to look up the issues in each case than to have memorized them before a hearing.”