- The Washington Times - Tuesday, November 28, 2017

The Senate confirmed one of President Trump’s lawyers to become a judge on the federal appeals court in Washington, D.C., overcoming concerns that he could end up deciding the legality of key parts of the Trump agenda — including decisions he was part of.

On a 50-48 vote, Gregory Katsas became the first Trump-appointed judge on the D.C. circuit. One Republican, Sen. John Kennedy of Louisiana, voted against Mr. Katsas while one Democrat, Sen. Joe Manchin of West Virginia, joined the GOP in support.

“He does an extraordinary job for President Trump, but to me, there’s an appearance of a conflict if on one day he’s representing the president and the next day he is on the D.C. Circuit deciding cases in which the president is a party,” Mr. Kennedy told reporters Tuesday. “A first-year law student would see this and I’m surprised the advisers to the president did not.”

Mr. Katsas will join the court just as a series of high-profile Trump cases are winding their way through lower courts and could soon reach the appeals court.

On Tuesday, a Trump-appointed judge on the district court tentatively upheld the president’s pick to lead the Consumer Financial Protection Bureau, in a case all sides expect to quickly reach the appeals court where Mr. Katsas now sits.

Other challenges to Mr. Trump’s election integrity panel, equal pay rules, his travel ban policy and other parts of his immigration agenda are also playing out in the courts here in Washington, as is a challenge to Mr. Trump’s business holdings, in a case with major constitutional implications.

“I don’t think it is an accident that President Trump — Republicans — are rushing to fill the courts and that’s because Trump himself is challenged in so many cases,” said Dan Goldberg, legal director for Alliance for Justice, a progressive court watchdog.

With Mr. Katsas, the D.C. circuit now has four full-time GOP-appointed judges compared to seven Democratic-named judges. When senior judges are included in the tally, the GOP holds a 9-8 advantage.

Knowing the power of the D.C. Circuit to shape presidents’ legacies, President Obama made a special push to pack the court with his picks. When the GOP balked at three of them, Democrats triggered the nuclear option, using a shortcut to change the rules to curtail the power of filibusters.

“This is a much more friendly venue for suits against President Trump,” said Josh Blackman, a professor at South Texas College of Law.

He said conservatives who wanted to challenge Mr. Obama would instead gravitate toward courts with more GOP appointees, such as the 5th U.S. Circuit Court of Appeals.

Mr. Trump has moved quickly to try to even out the numbers.

In addition to Mr. Katsas, the president has appointed three judges to the lower district court in Washington. Going into this year the court had 11 full-time judges, all of them Democratic appointees. The tally is now 11-3 in favor of Democrats.

Among senior judges the split is six from each party.

Liberal activists are turning to the courts to try to slow or stop many of Mr. Trump’s first-year moves.

“Courts are really important to, sort of, trying to move an agenda that has a lot of the American public really concerned, so it’s not surprising the courts are getting this level of attention,” said Marge Baker, executive vice president for the progressive People For the American Way.

Carrie Severino, chief counsel for the conservative Judicial Crisis Network, said conservatives also challenged a number of Mr. Obama’s policies, including in the federal courts in Washington.

“They just consistently have very significant challenges going on,” she said.

Curt Levey, president of the Committee for Justice, said the courts are an attractive venue for challenging Mr. Trump “because a majority of the district and circuit courts seats are still held by Democratic appointees, whereas the other two branches of government are controlled by Republicans.”

“It is part of the larger self-styled ‘resistance’ — that is, the effort of progressive opponents of the president to fight him at every turn,” he said.

Democrats worry Mr. Katsas’ won’t be independent of the president, whom he served as deputy White House counsel.

Mr. Katsas told the Senate Judiciary Committee during his confirmation hearing last month he worked on the president’s travel ban policy, the voter integrity commission, challenges to Mr. Trump’s business arrangements under the Constitution’s Emoluments Clause, immigration policy and the Obamacare contraception mandate — all issues that are pending in the circuit.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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