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Trump’s Excellent Judges

The Wall Street Journal, October 1, 2017

By: The Editorial Board

The start of a new Supreme Court term is a good moment to note some under-reported news: President Trump is rapidly remaking the federal appellate and district courts, with highly qualified nominees who fulfill his campaign promise to pick “constitutional conservatives.”

The White House announced its eighth batch of judicial nominees on Thursday, including four excellent choices for the Fifth Circuit Court of Appeals. They include a pair of Texans: Don Willett, who is now on the Texas Supreme Court and is well known for his witty Twitter feed; and James Ho, a Gibson, Dunn partner in Dallas who clerked for Justice Clarence Thomas and was Texas solicitor general.

The other two Fifth Circuit nominees have notable legal achievements to their credit. Stuart Duncan was solicitor general of Louisiana and general counsel for the Becket Fund for Religious Liberty. He was counsel of record in Burwell v. Hobby Lobby Stores, the landmark 2014 decision allowing closely held companies to be exempt from regulations they object to on religious grounds.

Kurt Engelhardt is chief judge for the federal district court for eastern Louisiana. In 2013 he wrote a withering 129-page opinion documenting misconduct by the Justice Department’s Civil Rights Division and the U.S. Attorney in prosecuting New Orleans police. Prosecutors attempted to inflame the potential jury pool against the officers with prejudicial public comments, including the use of a fake name on the website of the Times-Picayune. Justice appealed, but Judge Engelhardt was upheld by the Fifth Circuit he will join if he’s confirmed.

The speed of the nominations and the quality of the nominees is a result of the close ties between White House judicial vetters and the Federalist Society that is a national clearinghouse for conservative legal talent. Judicial nominations are arguably the most successful part of the Trump Presidency.

By our count—and we may have missed a name or two—Mr. Trump has made 18 nominations to appellate courts, 39 to district courts and three to the U.S. Court of Federal Claims. The Senate has confirmed only four for the appellate courts as Democrats use every possible delaying tactic. They’re even trying to disqualify Amy Coney Barrett, a nominee for the Seventh Circuit, because she’s an “orthodox Catholic,” as Senator Dick Durbin put it in a question at a Senate hearing.

With confirmation politics increasingly polarized, Mr. Trump and Republicans are wise to move quickly to take advantage of this moment of Senate and White House control. If Democrats take the Senate in 2018, Chuck Schumer will try to block the confirmation of any conservative nominee. Mr. Trump deserves more credit than he’s getting for his judicial-nominating operation.