- The Washington Times - Thursday, September 7, 2017

President Trump took the unusual step Thursday of nominating White House lawyer Gregory G. Katsas to a seat on the influential U.S. Circuit Court of Appeals for the District of Columbia, a court that former President Barack Obama fought to turn into an institution dominated by Democratic appointees.

Mr. Katsas currently serves as deputy counsel to the president in the White House Counsel’s Office. The nomination could set off a contentious confirmation battle in the Senate, with lawmakers likely to question Mr. Katsas about thorny legal issues such as the White House response to Russia-related investigations and the drafting of the president’s order on “extreme vetting” of travelers from predominantly Muslim countries.

“I expect that Katsas will receive questions regarding many legal issues on which he worked at the White House and with the Department of Justice, but he may not choose to answer all of them,” said Carl Tobias, a professor at the University of Richmond law school.

Dan Goldberg, legal director at the progressive Alliance for Justice, said the Senate should scrutinize Mr. Katsas’ involvement “on some of the most controversial decisions that this president has made.”

“This is somebody who is a top adviser to the president — a president who has repeatedly demonstrated his contempt for the rule of law and the courts,” he said.

The D.C. appellate court is considered the most important federal appeals court in the nation, and often serves as a steppingstone to the Supreme Court. The court also hears cases involving disputes over federal separation of powers, and challenges to executive branch authority.

When Mr. Obama took office in 2009, the court was dominated by conservative appointees, 6-3. Senate Democrats got so frustrated by Republicans’ refusal to confirm Mr. Obama’s nominees to the D.C. Circuit that they adopted the so-called “nuclear option” in November 2013, eliminating the filibuster for all judges below the Supreme Court.

Today, Democratic appointees hold a 7-3 advantage on the court. Among them is Chief Judge Merrick Garland, Mr. Obama’s nominee to the Supreme Court who was blocked by Senate Republicans last year.

Conservative activists praised Mr. Trump’s nomination of Mr. Katsas.

“In addition to being an exceptionally well-qualified nominee to the D.C. Circuit Court, Greg Katsas is one of the kindest and most humble people I know,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network. “As a widely respected Supreme Court advocate with more than 20 years of experience in government and private practice, Katsas has shown he will honor the Constitution and fairly apply the law.”

Stephen Gillers, a law professor at New York University, said he doesn’t see any ethical issue with a White House counsel being nominated to a federal court, noting that solicitors general and officials from the Justice Department also have been put on the Supreme Court.

“He’ll have to weather the confirmation process like everyone else, and his [White House] affiliation will yield some questions pertinent to that work, but there is no issue in the nomination as such,” Mr. Gillers said.

Presidents tap judicial nominees from the ranks of their White House legal advisers infrequently. In 2005, President George W. Bush nominated White House Counsel Harriet Miers to become an associate justice on the Supreme Court, but he withdrew the nomination a few weeks later in the face of bipartisan opposition in the Senate.

Mr. Tobias noted that Mr. Bush also nominated associate White House counsel Brett Kavanaugh to the D.C. Circuit Court in 2003. That nomination stalled for three years amid charges of partisanship before the Senate confirmed him in 2006.

Prior to joining the White House, Mr. Katsas was a partner at Jones Day, the same firm that employed White House Counsel Don McGahn. Former Attorney General Michael Mukasey, who worked with Mr. Katsas in the Justice Department, said he “can think of no one more qualified by temperament, training, sound judgment and sheer legal skill to serve on the D.C. Circuit.”

Former White House Counsel C. Boyden Gray, who served under President George H.W. Bush, said Mr. Katsas is “uniquely qualified to serve on the D.C. Circuit. Greg’s whole career has been dealing with these issues and he will make an invaluable contribution.”

The nomination was among several that Mr. Trump announced Thursday in his seventh round of judicial appointments.

Among the other nominations by Mr. Trump are:

⦁ Ryan Wesley Bounds of Oregon, to serve on the powerful Ninth Circuit Court of Appeals. Mr. Bounds, an assistant U.S. in Oregon, was recommended by Rep. Greg Walden, Oregon Republican, whose chief of staff is Mr. Bounds’ sister. The nominee also is a member of the conservative Federalist Society.

⦁ Matthew Spencer Petersen of Virginia to serve as a District Judge on the U.S. District Court for the District of Columbia. Mr. Petersen is a commissioner on the Federal Election Commission; he was unanimously confirmed to that post by the Senate in 2008, and has served as the FEC’s chairman. He also served as Republican chief counsel to the Senate Committee on Rules and Administration, and as counsel to the House of Representatives Committee on House Administration.

⦁ ϑudge Elizabeth L. “Lisa” Branch of Georgia, to serve on the Eleventh Circuit Court of Appeals. Judge Branch currently sits on the Georgia Court of Appeals, where she has served 2012. Prior to the bench, Judge Branch was a partner in the commercial litigation practice group at Smith, Gambrell & Russell, LLP in Atlanta, and served as a senior official in various posts in the administration of President George W. Bush.

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