The Week Ahead

June 9, 2024

Thirteen Senate Republicans have vowed that, in “retaliation” for the conviction of Donald Trump, they will not confirm any more federal judges or Biden appointees. The idea that a jury’s decision to convict a defendant in a state prosecution merits “retaliation” by Senate Republicans is nuts. Like every other defendant in a criminal case who gets convicted, Donald Trump can appeal to a higher court if he believes the verdict was in error. And Senate Republicans need a lesson in basic federalism if they think that refusing to confirm federal nominees has any impact on a local district attorney’s office.

This nonsense is a convenient hook for a position the senators likely planned to adopt in any event. Currently, there are 46 judicial vacancies and another 24 judges have announced their intention to take senior status, a sort of working retirement that opens their seat for a new nominee, in the near future. Two hundred and one of President Biden’s nominees have been confirmed to positions on the federal bench since he took office.

A president is entitled to nominate new judges to positions that come open during their time in office and see them confirmed by the Senate if they pass muster. This announced Republican “retaliation” approach, blocking nominees without regard to qualification, has about as much merit as the hypocrisy used to justify refusing to hold a confirmation vote for Merrick Garland’s nomination to the Supreme Court because it was an “election year” while speeding through Amy Coney Barrett’s confirmation in the days following Ruth Bader Ginsburg’s death—after the start of early voting in the 2020 election.

As a result of obstructionist Republican gamesmanship, President Obama left office with 105 unfilled judicial vacancies following a virtual Republican blockade on nominees after they took control of the Senate two years into his presidency. Donald Trump crowed about their “success” at the time.

Vacancies occur when judges are elevated to a higher court, go senior status, retire, resign, or die. Some of these events are predictable, and others, obviously, are not. The Biden Administration has stayed on mission after the issues experienced during President Obama’s time in office, appointing new judges at record rates and with impressive diversity that has expanded minority representation on the bench and brought on more judges with experience on the defense side of the aisle as well as former prosecutors.

Democrats in the Senate still hold a majority of sorts since Independents Bernie Sanders, Angus King, Kyrstin Sinema, and now Joe Manchin still caucus with them. It’s not clear that all of them will back all of the President’s nominees, but they should be able to confirm some of the pending nominees before the end of the administration, although it’s clear Republicans will try to make that as difficult as possible, trying to hold judicial seats open in hopes they can fill them themselves after the election.

The first step to ending this sort of political maneuvering with the supposedly independent institution of our courts is to build awareness and focus on it. This is part of what we’re talking about when we say the courts are on the ballot this year. It’s not too early to start discussing this with friends, family, and neighbors, especially those who are concerned about the ethical issues on the Supreme Court. More is emerging on that in the week ahead, when highly regarded former District of Columbia Circuit Judge David Tatel publishes his memoir on Tuesday.

A review in the Washington Post notes, “Tatel’s commentary is notable because he only recently left the bench, and because he prided himself on judicial restraint and for his friendships with judges nominated by Republican presidents while serving on the influential federal appeals court in D.C.” In an unstinting criticism of the Supreme Court, Judge Tatel reveals he stepped down from the U.S. Court of Appeals for the D.C. Circuit in January at least in part because he was tired of having his work reviewed “by a Supreme Court that seemed to hold in such low regard the principles to which I’ve dedicated my life,” and that “It was one thing to follow rulings I believed were wrong when they resulted from a judicial process I respected. It was quite another to be bound by the decisions of an institution I barely recognized.”

The courts, in general, are on the ballot, but especially so, the Supreme Court. Justice Samuel Alito may have slipped off the front page, but we won’t forget. And there was new reporting last week documenting around $4 million in “gifts” to Justice Clarence Thomas from people who weren’t his friends until he was confirmed to the Supreme Court. It’s clear that there must be reform on that Court, and they must remain front and center in the coming election.

Trump meets with his probation officer on Monday. While these meetings usually take place in person, New York law permits them to be remote—Trump’s will take place on Zoom—if a defendant is out of state or exigent circumstances exist. Rather than being special treatment for the former president, this procedure will avoid stressing court security resources further and exposing other people visiting their probation officers to a media spotlight.

Probation conducts a presentence investigation for every convicted defendant to aid the Judge’s sentencing decision. The report produced is confidential—we will not see it unless Trump makes some or all of it public, although it’s possible some of the information contained in it will be discussed during his July 11 sentencing hearing. That hearing will be public, although not available for us to watch or listen to, barring dramatic changes in policy.

The interview with the defendant is just one part of the investigation the probation office conducts. The goal, as you can see from state guidelines below, is the provision of accurate information to the judge and other state agencies involved in the incarceration and treatment of a defendant.

When it comes to the interview with the defendant, the goal is to provide the judge with information and observations about a defendant’s behavior, attitudes, and character, so this could get interesting. The probation office will interview Trump regarding his social background, criminal history, financial resources, and mental health, physical, or addiction issues. There will be an assessment of his living situation in order to help the judge understand what a sentence of probation would look like and whether there is reason to believe the defendant would comply with conditions (like not associating with anyone with a prior felony conviction) and be amply supervised by a responsible person he lives with.

Trump’s lawyer will be alongside him during the interview to ensure his rights are scrupulously observed. Something I’ll be looking for later in the week is whether Trump will comment on and criticize this process as part of his ongoing attack on the criminal justice system.

Also on Monday, the defense’s case draws to a close in the prosecution of President Biden’s son Hunter in a federal courthouse in Delaware. We’ll learn tomorrow if Hunter Biden will take the stand in his own defense to hammer home what appears to be the focus of the defense’s efforts, establishing that at the time he signed a form to purchase a gun and said he didn’t use illegal drugs, he believed he was being truthful because he was in recovery.

It’s very unusual for a defendant to take the witness stand. Whether Hunter Biden does or not, this case will be in the hands of the jury early this week for deliberations to begin.

We expect to hear from the Supreme Court later this week. They have Thursday on their calendar as the next date to announce opinions in this year’s cases. Still outstanding are the two abortion cases, one involving restrictions on mifepristone and the other whether an almost total ban on abortion in Idaho is in conflict with federal law. The presidential immunity case is still outstanding, as is a challenge by a January 6 defendant to the application of an obstruction of justice statute Trump is also charged with violating. There could be big news from the Court this week as they draw closer to the end of the term.

Trump’s post-trial motions in Manhattan are also due on Thursday. This is his opportunity to ask Judge Merchan to set aside the verdict as the result of error Trump alleges in the trial. Don’t hold your breath. The prosecution’s responses are due at the end of the month.

On Friday, Trump owes Judge Aileen Cannon a response to a request by the Special Counsel to modify Trump’s conditions of release so he can’t continue saying the FBI was trying to “take him out” when they were in fact carefully executing a lawful search warrant authorized by a federal judge. We don’t know when we can expect a ruling on that motion. There still isn’t a trial date for the case.

Many thanks to all of you who celebrated Civil Discourse’s second anniversary last Friday! I really appreciated all your messages on our forum and social media. I’m looking forward to pictures of you with your new Civil Discourse swag—the first few have come in and they’re great! Apparently, a lot of us drink coffee with cats on our laps. I can’t wait to see more.

We’re in this together,

Joyce