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The Indy Explains: The federal court system and the Republican quest to reshape the judiciary

A woman carries an American flag behind Lloyd George Federal Courthouse after the jury refused to convict four men involved in the Cliven Bundy ranch standoff on Tuesday, Aug. 22, 2017. Ricky Lovelien and Steven Stewart were found not guilty on all 10 charges, and Scott Drexler and Eric Parker were found not guilty on most charges. (Jeff Scheid/The Nevada Independent)

Although it’s the cancellation of DACA, efforts to repeal Obamacare and a major tax code overhaul that garner the most attention, one of the most enduring legacies of the Trump administration and Republican congressional rule will be something less flashy: judicial appointments.

Republicans are moving at breakneck speed — and breaking some conventions along the way — to fill a huge number of empty federal judge positions with conservatives who can hold the job for the rest of their lives. Trump’s appointment of conservative Supreme Court justice Neil Gorsuch will help tip close decisions on the nine-member panel, but dozens of judges at lower levels are also expected to create a sea change throughout the system.

Courts have decided the fate of Obamacare rules, immigration orders, same-sex marriage bans, gun-control laws and more. And the prospect of having a Republican appoint those decision-makers prompted some conservatives with misgivings about Trump to hold their noses and vote for him.

Republicans also hold major sway over a position that will determine if and how much the federal government will crack down on the marijuana industry. U.S. Attorney General Jeff Sessions has appointed Dayle Elieson of Texas as the interim U.S. attorney, and has given her discretion on how to approach a federal marijuana ban.

Her office has declined comment on how she would enforce federal marijuana law and hasn’t made her available for interviews.

For those unfamiliar with the federal courts, here’s a primer on how they work and how Republicans are reshaping them:

How is a state crime different than a federal one?

State crimes are ones that are policed and prosecuted by local or state-level law enforcement, such as the Las Vegas Metropolitan Police Department, the Reno Police Department or the Nevada Highway Patrol.

They include crimes such as robbery, assault and homicide.

Federal crimes typically involve federal agencies, such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), the Internal Revenue Service (IRS) and the Border Patrol.

They include drug trafficking, immigration crimes, tax fraud and organized crime.

Federal courts can only hear cases that are authorized by the U.S. Constitution or federal laws.

But there’s a lot of overlap. Federal prosecutors might pursue what appears to be a low-level case that involves a gun, arguing that the gun only came about because of interstate commerce. And the state can usually still charge crimes such as drug trafficking under state laws.

As a practical matter, federal prosecutors usually only deal with cases that involve large sums of money or large quantities of drugs.

Some federal cases you may have heard of: a prosecution against rancher Cliven Bundy over a 2014 standoff and Operation G-String, a corruption investigation into Clark County officials in the early 2000s.

Some state cases you may have heard of: a death penalty case involving Scott Dozier and a suit over how Clark County counted signatures on a petition that could lead to recall elections.

Practical differences

Federal judges and state judges are completely different, and they operate in different courthouses that have their own rules.

In Las Vegas, state crimes work their way through the Regional Justice Center, while federal crimes are tried in the Lloyd D. George federal courthouse.

Both are downtown, but they feel different — while the Regional Justice Center is abuzz with activity and people from all walks of life, the federal courthouse often feels deserted. That’s not only because the state courts handle vastly more cases than federal courts, but also because state court has more of an oral practice and federal courts move through their cases more through paper filings, with fewer in-person appearances.

If it’s quiet in the federal courthouse, it’s probably because the judges are behind closed doors reading.

Nevada’s state court system starts with courts in 11 different judicial districts. After someone is convicted, he or she can appeal to the Nevada Supreme Court, which decides if it wants to handle the case or send it back to an intermediate step — the new appeals court.

The outcomes of state and federal cases can differ widely. Because of mandatory minimum sentencing requirements set by Congress, sentences in federal crimes tend to be much longer than state sentences.

The prisons themselves are different. While federal prisons generally have a larger proportion of white-collar offenders, state prisons usually have a significant proportion of people convicted of a violent crime.

The largest group in the federal Bureau of Prisons — 46 percent — was convicted of drug offenses, while only about 3 percent were convicted of homicide, aggravated assault or kidnapping. In the Nevada Department of Corrections, the largest group — 38 percent — is people convicted of violent crime.

At all levels, judges in the state court system are elected, and their terms last six years. (Not all states have elected judges; the practice is controversial because it forces judges to campaign and raise money from the lawyers who plead cases in front of them, and also because the offices are so “down ballot” that the average voter has very little information about them).

Because they need to campaign, state judges and judicial candidates are more likely to be out at public events, shaking hands with voters or advertising on billboards, while federal judges are more often behind the scenes.

The federal court structure

Federal court cases start in the District Court — Nevada is a district unto itself, while some states such as California have multiple districts. In all, there are 94 judicial districts in the country.

The districts are organized into 13 different “circuits.” Nevada cases feed into the U.S. Court of Appeals for the Ninth Circuit, which is headquartered in San Francisco and has about twice as many active judges as most of the other circuits. Others included in the circuit are Arizona, Idaho, California, Montana, Washington and Oregon, as well as Alaska, Hawaii, Guam and the Northern Mariana Islands.

In addition to the 11 regional circuits, one circuit covers the District of Columbia — it has a reputation as the most prestigious and reviews administrative decisions made by federal agencies in Washington — and another is called the federal circuit and deals with miscellaneous cases.

The Ninth Circuit has long had a reputation as a liberal court, even earning the nickname “Ninth Circus” from conservative radio host Rush Limbaugh. It was the source of a ruling that the mention of “God” in the Pledge of Allegiance was unconstitutional, and it ruled in 2012 that California’s same-sex marriage ban was unconstitutional, although experts note that it’s home to well-respected conservative jurists as well as liberal ones.

It’s also been the target of Trump’s ire in several tweets. He appeared to blame the Circuit Court last week for a ruling on DACA that actually came from a lower court and called for the large circuit to be broken up.

Trump has also panned the court for having a reversal rate of nearly 80 percent. While the number is high, it’s not far from the rate at which the Supreme Court reverses lower courts in all the appeals it takes up (the high court is, after all, more likely to take up controversial appeals that it might overturn). And the number of Ninth Circuit cases that make it to the U.S. Supreme and are reversed is a tiny fraction of the total number of cases the Circuit Court handles.

Circuit court decisions (and, in some cases, state Supreme Court decisions) can be appealed to the U.S. Supreme Court, although that court only accepts a small fraction of requests. Of the more than 7,000 cases it is asked to review each year, only about 100-150 are selected, according to the court’s website.

Filling vacancies

Judges in the federal court system are nominated by the president, confirmed by a simple majority vote in the U.S. Senate, and serve for life unless they resign, retire or are impeached by Congress. There are a total of 890 authorized federal judgeships (677 in district courts, 179 in the courts of appeal, nine in the Court of International Trade, 16 in the Court of Federal Trade and nine in the U.S. Supreme Court).

As of Jan. 13, there are 145 vacancies, including one in Nevada.

Senators play a major role in finding candidates for district courts in their state. Sometimes, they personally know a potential nominee, and at other times, different sources supply names to senatorial staffers who will vet the candidates before proposing them to the senator.

Prospective nominees also face a deep background check process by the FBI and the Department of Justice.

There is no criteria set in the Constitution for the qualification of judges. However, since the Eisenhower Administration, the American Bar Association has assisted by evaluating nominees’ professional backgrounds, interviewing large numbers of people who have worked with them and rating them “well qualified,” “qualified” or “not qualified.”

The Trump administration broke with tradition when it told the organization in Spring 2017 that it wouldn’t have the ABA evaluate candidates before they were nominated. The administration said it welcomed ABA’s evaluations after a person was nominated by the president, but wouldn’t help the group in the process by providing it with a detailed questionnaire from the nominee.

Many of Trump’s nominees have ties to the Federalist Society, a group of conservative and libertarian lawyers who consider themselves originalists — of the belief that the Constitution’s meaning doesn’t change over time. The group, which positions itself as a counterweight in a legal profession that is “dominated by a form of orthodox liberal ideology,” is organized and well-connected to elite lawyers, and has provided an efficient pipeline of conservative nominees to the Trump administration.

“I would say I think the Federalist Society has come to play over the last 30 years for Republican presidents something of the role the American Bar Association has traditionally played for Democratic presidents,” Steven Calabresi, co-founder of the group and the chairman of its board, said in an interview with The Hill. “The last two Republican presidents have disregarded ABA ratings, and I think they are relying on the Federalist Society to come up with qualified nominees.”

It hasn’t just been Republican presidents who have disagreed with ABA ratings — even Democrats have found the system favors “establishment” credentials and doesn’t always give high marks to more unorthodox picks. In President Obama’s quest to diversify the federal bench, the ABA reportedly deemed numerous prospects unqualified, but because the rating process happened before candidates were actually nominated, the rating was not public.

Blocking nominations

The nomination process can be highly partisan — nominees tend to align politically with the president who chooses them. But especially in the district court judge selection process, the president exercises what’s called “senatorial courtesy” and seeks a recommendation from that state’s senators.

In a state like Nevada, which has one senator from each party, the process of trying to come up with a consensus candidate is likely to yield someone more moderate than in a state with single-party representation.

But senators don’t always come to an agreement. In a high-profile episode in 2012, Republican Sen. Dean Heller refused to support Clark County District Court Judge Elissa Cadish after Democratic Sen. Harry Reid recommended her and then-President Barack Obama nominated her to a federal judge position that was deemed a “judicial emergency.”

Heller cited a response she gave in 2008 on a questionnaire in which she said she didn’t believe the 2nd Amendment established a right to bear and keep arms and that it allowed for reasonable restrictions on gun ownership.

She told Reid that the response was not a political view, but reflected what she believed was an unsettled legal question before the U.S. Supreme Court ruled otherwise in 2010. Nevertheless, she withdrew her nomination and remains a state District Court judge, although she’s mounting a bid for Nevada Supreme Court.

Political hangups have led to a high number of vacancies in the federal court system. Trump started his term with more than 12 percent of federal judgeships vacant, and had more than twice the number of vacancies that Obama did at the start of his term.

That can be attributed to the Senate — the body that confirms the president’s nominees — flipping to Republican control in 2014. For two years, Republicans declined to consider Obama’s nominees, including his pick to replace Antonin Scalia on the Supreme Court — Merrick Garland.

By the time Obama left, 54 of his judicial nominees were pending before the Senate, and he failed to nominate anyone else for an additional 67 spots. Seventeen prior candidates withdrew from consideration or weren’t nominated again.

The Republicans’ gamble that they would retake the White House and thus have the power to appoint nominees turned out to be a smart one. The deficit they helped build at the end of the Obama years leaves Trump much room for making appointments. And with congressional Republicans fast-tracking the process, he is on pace for a significantly higher number of judicial appointments than past two-term presidents, if he is elected to a second term.

Blue slip process

A century-old practice in the Senate known as the blue slip has been a way to achieve consensus on a nominee and for a senator to “veto” picks they don’t like.

When a nominee is sent to the Senate Judiciary Committee, the chairman sends a blue slip — literally a blue piece of paper — to the two senators in that nominee’s state. The senators can either indicate on the slip whether they support or oppose the nominee.

They can also withhold the slip altogether. Some committee chairmen have responded to that move by not considering a nominee for a hearing.

But current Senate Judiciary Chairman Chuck Grassley (R-IA) bypassed that practice in November when he advanced two circuit court nominees even though one of their home-state senators didn’t turn in a blue slip.

“I must say … that he has outlined a sensible use of the blue slip, which involves consultation but does not lead to a one-senator veto of a nominee,” Republican Senate Majority Leader Mitch McConnell said from the Senate floor.

Grassley has said he’s less likely to disregard the blue slip tradition when it comes to district court nominations than with nominees to the circuit courts, which encompass more than one state and are more controversial.

Still, his move further erodes the power of the minority party in shaping the federal bench.

In the past, senators could filibuster a nominee they didn’t like, and that stalling tactic could only be ended through a process called “cloture.” If at least 60 senators voted for cloture, the Senate would wait one day and then take a floor vote.

After Republicans blocked numerous Obama nominees, Democrats led by Reid deployed the “nuclear option” in 2013 and reduced the threshold for cloture to 51 votes.

That opened up the floodgates for the Senate to approve Obama’s picks, but backfired when they lost the majority. Now, the lower vote threshold makes it easy for Republicans in the majority to approve Trump’s picks even if Democrats wholly oppose them.

Reshaping the judiciary

President Trump has described his nominating spree as the untold story of his presidency.

“Nobody wants to talk about it … but when you think of it … that has consequences 40 years out,” he said at a Cabinet meeting last year, according to The Associated Press. “A big percentage of the court will be changed by this administration over a very short period of time.”

Republicans, buoyed by a thin majority in the Senate and control of the White House, have been on a judge-appointing spree since Trump took office. Trump set a record in December when his 12th pick for circuit court judge was confirmed — the most of any president in his first term.

A quest for conservative judges has led to some to argue that unqualified judges are ending up in the pool — a criticism perhaps best encapsulated by one nominee’s inability to answer legal questions from Republican Sen. John Kennedy in a mid-December hearing. (That nominee later withdrew from consideration). The speed, which includes sometimes vetting multiple nominees at the same hearing, makes it difficult for congressional staffers charged with reviewing the picks to keep up.

Of nearly 60 nominees from the Trump administration that have been evaluated so far, four were rated “not qualified” by at least a majority of the American Bar Association rating committee’s members.

Heller has been outspoken in his calls for the Senate to quickly confirm Trump’s nominees to the federal bench, calling on his colleagues to work 24/7 to get the job done and accusing Democrats of causing “purely political” gridlock.

“Confirming federal judges is a unique duty of the U.S. Senate, and we cannot allow obstructionism from Democrats to prevent us from filling vacancies throughout the country,” Heller said in a blog post. “Bottom line is that the Democrats know they can delay the process and keep us from getting conservatives on the bench. The way to beat them is to keep the Senate in session around the clock. We can get this done if we stop taking breaks and work until the job is done.”

Trump’s critics point out that his choices are significantly less diverse than those of his predecessors since the time of George H.W. Bush. That could lead to a judiciary that’s notably less diverse than the populace, and distrust between the two, some say.

The U.S. attorney

The U.S. attorney is the top prosecutor representing the federal government in cases against offenders. The job involves significant day-to-day involvement with local law enforcement agencies, especially as part of joint task forces that include federal and local agencies.

The frequent coordination with local officials is what makes it unusual for someone out-of-state to be selected for Nevada’s position. Elieson is one of just two of the 17 interim U.S. attorneys among the Sessions appointments who isn’t from the state or territory she’ll oversee.

Usually, the person selected is either a career prosecutor — someone who’s risen through the ranks of a U.S. attorney’s office — or a political appointee, with some strong connection to that state’s U.S. senators. It’s common for a new top prosecutor to be selected at the beginning of a new presidential administration, upon recommendation of home-state senators, although lower-level employees generally don’t change.

While they are employees of the Department of Justice, and they coordinate with Washington, U.S. attorneys exercise a high level of autonomy.

Their politics might come out in the decisions they make about how aggressively to prosecute a case, although their typical work is nonpartisan.

A change of presidential administrations might mean new directives flowing from the Department of Justice, such as more relaxed sentencing guidelines, guidance on marijuana enforcement through the Cole Memo or the revocation of that memo. The chances that they would be dismissed by an incoming administration could depend on their perceived resistance to the direction of new leadership.

One lingering question about Elieson’s selection is what role Heller played, because it’s unclear whether he has connections to him and the powerful position is usually bestowed upon political friends. Was he consulted or did he sign off on her appointment to the seat, or was it a non-traditional, top-down directive from Sessions?

It’s unclear whether Elieson, who hails from Texas, will remain in Nevada as the permanent U.S. attorney after her 120-day interim stint ends. Nevada’s senators did not comment to The Nevada Independent about the circumstances of her selection or the status of their quest for a permanent replacement, although Heller did comment to the Reno Gazette-Journal.

“Just as he has for months, Senator Heller continues to work with the White House and the Department of Justice on who will ultimately be appointed as the U.S. Attorney for Nevada,” spokeswoman Megan Taylor wrote in an email to the newspaper on Friday.

Recent U.S. attorneys in Nevada and their backgrounds

1993 – Kathryn Landreth was proposed by Sen. Harry Reid, who had met her when she was his debate coach in 1986. Landreth, who grew up in South Dakota, was the first woman to hold the post.

2001 – Daniel Bogden, nominated by George W. Bush, was confirmed. He had served for more than a decade in the U.S. attorney’s office in Reno before that. In a rare mid-term purge, Bogden and seven other U.S. attorneys were ousted from their positions in 2006. The move was never fully explained.

2007 – Greg Brower, who had been a Nevada assemblyman, a Justice Department employee and a Bush Administration lawyer, was nominated by George W. Bush. He left in October 2009, when Obama renamed Bogden to the post.

2009 – Bogden was re-appointed to the role by President Barack Obama in 2009 and served until early 2017, when the Trump administration asked him and 45 other holdovers to resign. Such mass resignations are more typical when there’s a change in presidential administration.

2017 – Steven Myhre, the first assistant attorney general, took the role as acting U.S. attorney. He had 210 days to serve in that position before his authority lapsed.

2018 – U.S. Attorney General Jeff Sessions named Dallas-area federal prosecutor Dayle Elieson as interim U.S. attorney, a position that has authority for 120 days before the Senate needs to act. Elieson has been an assistant U.S. attorney for the Northern District of Texas, and previously served as an assistant district attorney for Dallas County and Denton County in Texas.

She has a law degree from the Brigham Young University J. Reuben Clark Law School. Myhre moved back into his old position as first assistant U.S. attorney when Elieson arrived.

Implications for marijuana enforcement

Sessions announced in early January that he was rescinding the Cole Memo — Obama-era guidance that directed federal prosecutors not to spend time on shutting down marijuana operations that were in compliance with state law. Instead, U.S. attorneys will have discretion on how many resources they would dedicate to enforcing a federal marijuana ban.

While U.S. attorneys in other states have issued statements about the matter, the marijuana industry is still trying to determine the effect of Elieson’s appointment on Nevada’s pot policy. She hasn’t made any declarations about her stance and her office has so far declined comment.

“Texas doesn’t have it, she doesn’t know much about it. We don’t know what that means, whether she’s going to be aggressive or not,” said Democratic Rep. Dina Titus.

Experts say she’s at a disadvantage compared with someone who might have been plucked from Nevada.

“The federal law would be the same. But what is the issue is she may not know the Nevada law, the people, the politics, the sentiment in Nevada,” said Lynn Fulstone, a lawyer with Fennemore Craig who represents marijuana industry clients.

Republican Gov. Brian Sandoval said he isn’t sure she’s moved here yet and said he hopes to be her first meeting. But the governor added that he’s not concerned simply on the basis that she came from out of state.

“This is a sophisticated, experienced federal prosecutor,” he said. “At this time, I don’t have any reason to be concerned until I sit down and talk with her and what direction she’s going to go.”

Sandoval and groups including the Nevada Dispensary Association have said they hope to meet with Elieson to discuss how Nevada has been regulating its marijuana industry.

“I don’t think you can lobby the U.S. attorney, but maybe you can educate,” Titus said.

Riley Snyder contributed to this report.


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