On Monday, Donald J. Trump nominated Circuit Court of Appeals for the District of Columbia Circuit Judge Brett Kavanaugh to replace SCOTUS Associate Justice Anthony Kennedy. Rumblings and debates about the process, and what happened when, have begun nonstop. On Tuesday, two additional developments in the justice system emerged that should cause concern about our representative democracy.
The first was the latest Trump Executive Order, which he issued on July 10: “Executive Order Excepting Administrative Law Judges from the Competitive Service.” In previous Palmer Report articles, we have reported on the potential impacts of the SCOTUS case, Lucia v. Securities and Exchange Commission, which dealt with Administrative Law Judges (“ALJs”).
The Executive Order references the decision in Lucia and then takes away the competitive aspects, as well as removing the current process of selecting ALJs for a particular agency from the Office of Personnel Management Central Pool. The selections likely will be more political. A White House fact sheet stated, “agencies will be free to select from the best candidates who embody the appropriate temperament, legal acumen, impartiality, and judgment required of an ALJ, and who meet the other needs of the agencies.”
A second thing happened today- Senator Joe Manchin, a purported Democrat, voted with Republicans in the Senate to close debate on the nomination of Brian Benczkowski to become the Director of the Criminal Division of the Department of Justice. While Benczkowski is considered an experienced and talented litigator, as a partner at Kirkland & Ellis, he has no prosecutorial experience. In addition, while under consideration for an administration position last year, he represented for a brief time Alfa Bank, a subject of the Russian probe. Benczkowski could potentially have oversight of the investigation should Special Counsel Robert Mueller be fired.
Prominent Senate Democrats, in a recent letter to Donald Trump, cautioned, “Unanswered questions remain about Alfa Bank that should be resolved before the Senate even considers voting to confirm this bank’s lawyer to a top Justice Department position.” Deputy Attorney General Rosenstein has argued for Benczkowski’s confirmation and has noted that he is “highly qualified.” With this administration, we must watch closely so that these two seemingly independent movements do not result in the slippery slope of losing our representative democracy.
Daniel Cotter is a lawyer writing and teaching about SCOTUS, and married father of two boys living in Chicago, Illinois.