- The Washington Times - Tuesday, October 17, 2017

A top White House lawyer President Trump nominated to be a federal circuit judge refused Tuesday to detail his role in helping craft some of the president’s most controversial policies, drawing a rebuke from Democrats who said they wanted more transparency before giving him a lifetime judgeship.

Greg Katsas, who has served as deputy White House counsel since January, said he would be violating his duty as a lawyer if he disclosed the legal advice he’s given the president.

“No lawyer is at liberty to disclose the substance of advice to the client,” Mr. Katsas told Sen. Sheldon Whitehouse, Rhode Island Democrat, who asked Mr. Katsas to describe his involvement with planning the White House response to the ongoing probe into Russian interference in the 2016 election.

The lawyer said he did not advise the president on the firing of former FBI Director James B. Comey, but he did answer questions about issues related to the special counsel’s investigation of claims the Trump campaign colluded with Russia.

Mr. Katsas has also worked on the president’s travel ban policy, his voter integrity commission, the challenges to Mr. Trump’s business arrangements under the Constitution’s Emoluments Clause, immigration policy and the Obamacare contraception mandate.

Mr. Trump has picked Mr. Katsas for a seat on the U.S. Circuit Court of Appeals for the District of Columbia, which hears so many cases from federal agencies that it’s considered the second-most powerful court in the country, behind the Supreme Court.

That makes nominations to the circuit particularly controversial, and Democrats signaled they’ll battle Mr. Katsas.

The top Democrat on the committee, Sen. Dianne Feinstein of California, said she was concerned Mr. Katsas might end up with a problem because of the ongoing Russia probe.

“The possibility exists that current or former White House officials may be fact witnesses,” she said.

Sen. Richard Blumenthal, Connecticut Democrat, asked Mr. Katsas if he had any role in advising the president on an Emoluments Clause challenge, where Mr. Blumenthal is the plaintiff.

Mr. Katsas said he did advise the president on the issue and would recuse himself if a case came before him dealing with Mr. Blumenthal’s legal challenge.

Mr. Katsas refused to answer a question from Sen. Christopher A. Coons, Delaware Democrat, about whether the president’s pardon of former Sheriff Joe Arpaio undermined the rule of law. Sen. Richard J. Durbin, Illinois Democrat, questioned the nominee about waterboarding and whether it’s a form of torture.

Mrs. Feinstein also took issue with two of the district court nominees who appeared before the committee Tuesday, saying the panel had not received their American Bar Association (ABA) scores. She said, historically, ABA ratings have played an important role during confirmation hearings.

In particular, she raised concerns with Brett Talley, who was nominated to be a district judge for the Middle District of Alabama.

Mr. Talley did not have an ABA score reported to the committee yet, and he also had published a pro-gun blog post five years ago after the mass shooting at Sandy Hook Elementary in 2012, in which he said President Obama and allied Democrats were “about to launch the greatest attack on our Constitutional freedoms in our lifetime.”

“I have never seen anyone in 24 years before this committee with the strong statements you have made on weapons, and when I think of what just happened in Las Vegas, it makes it very difficult for me,” said Mrs. Feinstein.

Mr. Talley told the committee he created the blog post to start a discussion between both sides of the gun control debate, but he promised to be impartial as a judge, ruling on the law and facts rather than his personal thoughts.

Mr. Trump currently has 50 federal court nominees pending before the Senate, and expressed frustration with Democratic opposition to his judges on Tuesday during a press conference with the prime minister of Greece.

“They’re not getting approved — they are getting slow-walked by Schumer and the group of Democrats. It’s really disgraceful,” said Mr. Trump.

Some Democrats have promised to use the Senate’s blue slip tradition to block Mr. Trump’s judicial nominees from their home states since the filibuster for lower court judges was eliminated by then-Senate Majority Leader Harry Reid, Nevada Democrat, in 2013 for Mr. Obama’s picks. 

Blue slips are traditionally returned to the committee by home-state senators as a sign of support for the pick, and if a blue slip isn’t returned, the nominee would not be given a confirmation hearing or a vote.

But Sen. Mike Lee, Utah Republican, said only two of the last eight chairmen of the committee since 1955 treated the blue slip as a complete veto of a nominee during Tuesday’s hearing, and the Senate should be careful eliminating rules like the filibuster because all that’s left to rely on are inconsistent traditions.

Sen. Chuck Grassley, Iowa Republican, currently leads the committee, and he has not yet decided whether he will continue to honor the blue slip process. 

But because the District of Columbia doesn’t have home-state senators, and both of Alabama’s senators are Republicans, the Democrats are left without a tool to block Mr. Katsas or Mr. Talley.


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