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.
The country’s focus on the judiciary is now fixed on the U.S. Supreme Court, with Trump set to announce on Monday his nominee to replace outgoing Justice Anthony Kennedy.
“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. “So it’s important that the president is nominating judges who are fair, who are interpreting the laws as they’re written and not substituting their own policy preferences. And, of course, judges who are faithful to the Constitution as it’s written. It’s been very encouraging.”
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.”
Trump has filled two vacancies on the 11th Circuit with former Georgia Court of Appeals Judge Elizabeth Branch and former Alabama solicitor general Kevin Newsom. Both are expected to cast reliably conservative votes on the court.
Trump’s third nominee, Georgia Supreme Court Justice Britt Grant, was expected to be a slam-dunk confirmation in the full Senate. But Arizona Republican Jeff Flake is holding up her confirmation in protest of the administration’s imposition of tariffs on U.S. allies. Both Grant and Newsom are on Trump’s short list for the U.S. Supreme Court.
Flake has said he does not oppose Grant because of her qualifications, which indicates it’s only a matter of time before she’s confirmed.
The 40-year-old Grant, an Atlanta native who attended Westminster Schools, has impressive conservative credentials.
After college, she worked for President George W. Bush, serving in a number of domestic policy positions. During law school, she was president of Stanford University’s Federalist Society.
Grant’s nomination has been opposed by civil rights and anti-abortion groups. But she sailed through her confirmation hearing before the Senate Judiciary Committee in May without controversy.
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.
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.”
If Hillary Clinton had been elected president, her nominees might have led to the 11th Circuit becoming more liberal-minded for the first time in decades.
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.
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.
Newsom initially surprised conservatives by joining a unanimous three-judge panel that found the Tuscaloosa Police Department should have made more accommodations for a breastfeeding officer on its force. The 11th Circuit’s ruling said employees who are breastfeeding are protected under a federal law that prohibits sex discrimination in the workplace.
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.
Judge Beverly Martin, perhaps the 11th Circuit’s most liberal member, dissented and called the jail’s conditions “flagrantly” unconstitutional. “Our Constitution does not turn a blind eye to these types of conditions, and neither should we,” she wrote.
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.”
Curt Levey, president of the conservative Committee for Justice, praised Trump’s appointments on the 11th Circuit.
“It’s a circuit that Republicans have to have,” Levey said. “I feel very good about how it’s gone so far.”
AS COURT CHANGES, ONE THING STAYS THE SAME
One judge on the federal appeals court in Atlanta has made history. Gerald Tjoflat is now the longest-serving active federal appeals court judge, having surpassed 42 years on the bench.
In a recent interview, the 88-year-old judge said he has hung photos of his law clerks on the walls of his chambers in Jacksonville, Fla., since he became an appeals court judge. That’s become a problem, he said, because more than 200 clerks have now worked for him.
“I’m running out of room on the wall,” Tjoflat said with a chuckle.
Tjoflat was appointed by President Gerald Ford in 1975, six years before the court split into two separate circuits. One is now headquartered in Atlanta, the other in New Orleans.
“I’ve seen about three generations of judges on this court,” said Tjoflat, who’s recovering from recent hip replacement surgery. “Society has changed drastically as well, but we still see the same kinds of legal problems. And that’s the fun part — taking them apart, making them simple and arriving at a decision.”
On the bench, Tjoflat can be a formidable force during oral arguments, hurling one hypothetical question after another at backpedaling attorneys. They often find themselves scrambling to find an answer that avoids having them concede Tjoflat’s point.
Tjoflat said he still enjoys hashing out legal issues with bright young law clerks fresh out of law school. But he said it will be up to those same clerks and his wife, Marcia, to give him honest appraisals of his mental fitness.“When I start to slip,” Tjoflat said, “it’ll be time to hang it up.”
When asked about his appointment to the bench more than four decades ago, Tjoflat replied, “It still seems like yesterday.”
THE 11th U.S. CIRCUIT COURT OF APPEALS
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