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Analysis Law and Policy

Meet the Trump Judge Who Handed Texas Its Abortion Ban

Lisa Needham

In this new monthly column, we examine Trump-appointed judges, including Kyle Duncan, who are upending long-standing civil and human rights.

Over the past three years, President Donald Trump has appointed nearly 200 federal judges, to say nothing of his two appointments to the U.S. Supreme Court. In doing so, Trump has reshaped the judiciary, installing conservative jurists who will do his bidding for decades to come.

In this new monthly column, Rewire.News will examine some of those appointees and their jurisprudence, which is already upending long-standing civil and human rights. Trump has appointed 137 judges at the district court level and 51 at the appellate circuit court level. By some estimates, Trump is on track to appoint a quarter of federal judges, who serve life terms, by the end of the year, according to Politico. Combined with his Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, we are seeing the systematic unraveling of legal precedent and an attack on human rights, including reproductive rights.

We’re kicking off this column with a close look at Kyle Duncan, Allison Jones Rushing, Elizabeth Branch, and Neomi Rao. Collectively, these judges are responsible for the worst decisions of the past two months.

Kyle Duncan, Fifth Circuit

In the U.S. Court of Appeals for the Fifth Circuit this week, Trump appointee Kyle Duncan helped ensure that Texas’ abortion ban exploiting the COVID-19 crisis took effect. Anti-choice Texas officials are using the COVID-19 outbreak to stop abortions, arguing that abortions are nonessential and that providing abortions diverts medical resources away from treating COVID-19 patients.

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Born in 1972, Duncan has a long anti-choice history. Prior to joining the bench in 2018, he served as counsel for the Becket Fund for Religious Liberty, which represented Hobby Lobby in its quest to refuse to provide birth control to its employees. He also worked with the Alliance Defending Freedom, an anti-LGBTQ, anti-abortion legal group.

In Texas, a federal district court judge initially issued a temporary restraining order blocking the abortion ban from going into effect, holding that “[t]he benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy[.]”

However, on March 31, Duncan joined with George W. Bush appointee Jennifer Elron in staying the lower court’s order and allowing the ban to go into effect immediately. The Fifth Circuit is notoriously anti-choice, and Duncan is fitting right in.

Allison Jones Rushing, Fourth Circuit

Allison Jones Rushing, one of the youngest federal judges appointed by Trump, was confirmed to the U.S. Court of Appeals for the Fourth Circuit last year. Rushing interned for the Alliance Defending Freedom and has gone on the record opposing the Supreme Court’s 2013 decision in United States v. Windsor, which held that the Defense of Marriage Act was unconstitutional. At only 37 years old at the time she ascended to the bench, Rushing has a long judicial career ahead of her.

From the start, Rushing has worked to enact Trump’s conservative agenda. Shortly after taking the bench, she voted, along with fellow Trump appointee Julius Richardson, to allow the administration’s domestic “gag rule” to go into effect, even though a lower court had enjoined it. The gag rule bars Title X funds from going to any health-care clinic that performs abortions or refers patients for abortion services.

More recently, Rushing has displayed a Trumpian anti-immigrant mindset in two cases. In Bah v. Barr, a case decided in February, she and Richardson upheld the deportation of Hassan Bah, a Sierra Leone native who had been in the United States since 1999, when he entered as a child on a temporary visitor visa. Bah was convicted of possession of a controlled substance, which the government asserted warranted his removal. However, the original conviction was, as the dissenting judge pointed out, “ambiguous.”

That’s because Bah’s conviction was for a substance that, while chemically similar to MDMA, known as ecstasy or molly, was not MDMA, and therefore may not have been properly the sort of conviction that would trigger removal from the country. The dissenting judge noted that Rushing’s analysis rested on one Virginia state court decision that the judge called “ambiguous” and one unpublished Virginia state court decision. The judge said that to allow that flimsy reasoning to lead to Bah’s removal was “too harsh a consequence.” Rushing had no such reservations and upheld Bah’s removal.

Rushing wasn’t in the majority in Perez v. Cuccinelli, also decided in February, instead joining a dissent written by another Trump appointee, Marvin Quattlebaum. In that case, the U.S. Citizenship and Immigration Service (USCIS) denied Felipe Perez special immigrant juvenile (SIJ) status. SIJ status can be granted if reunification with one’s parents is not viable, which was the case for Perez, who had been abused by his parents and was seeking to stay with his brother in the United States. The Fourth Circuit overturned the USCIS decision, holding it had misinterpreted federal law. Quattlebaum’s dissent said the majority, in overturning USCIS, had approved of a “brazen scheme to game our federal immigration system.” This was despite the fact that neither the North Carolina federal court nor USCIS had found Perez acted “dishonestly or corruptly.”

In just a year on the Fourth Circuit, Rushing has already had several opportunities to rule in favor of the Trump administration’s worst impulses, and there’s no reason to think that will change.

Elizabeth Branch, 11th Circuit

Elizabeth Branch, 52, has been on the U.S. Court of Appeals for the 11th Circuit since March 2018. In February of this year, Branch issued a remarkable dissent in Alabama State Conference of the NAACP v. Alabama. The NAACP had sued the state over its method of electing state judges, arguing it violated the Voting Rights Act (VRA). The state countered that private parties couldn’t sue Alabama under the VRA, despite the fact that every district court and circuit court of appeals that had considered a similar case had previously rejected such an argument. Those courts did so because, as the majority noted, “private parties remain the primary enforcers of [the portion of] the VRA which prohibits states from imposing election practices that result in racial discrimination.”

In spite of this, Alabama argued it was immune from these sorts of suits. However, if a state is immune from private party suits under the VRA, it would be nearly entirely immune, as the only entity that could sue would be the federal government. The majority noted that a different section of the VRA specifically allows for “an aggrieved person” to bring suit under the law.

Branch dissented, pointing out that under the 11th Amendment, citizens cannot sue a state in federal court unless the state explicitly consents. That is generally true, but as the majority held, the VRA itself is “a carefully designed remedial statute—one that is predicated upon suits against States.” Put another way, the VRA is specifically designed to allow states to be sued when they engage in racial discrimination.

In Branch’s view, that’s wrong. And, as Mark Joseph Stern noted at Slate, much of her dissent rested on Congress’ choice of preposition. Branch asserted the text of the VRA allows an aggrieved person to enforce voting rights “in any State” but, if Congress had intended to allow suits, it should have said “‘against’ a State.” Branch’s argument here is a very thin reed on which to base overturning 50-plus years of civil rights actions.

Unfortunately, Branch’s views are not that far outside the mainstream of other judges appointed by Republican presidents. In Shelby County v. Holder, Chief Justice John Roberts, a Bush appointee, in 2013 wrote an opinion that invalidated another part of the VRA—the pre-clearance requirement. That section had required jurisdictions with a history of racial discrimination to submit any proposed revisions to their electoral laws to the U.S. Department of Justice (DOJ) so the DOJ could evaluate those plans to see if they furthered discrimination. Were Branch’s views to take hold more widely, it would be yet another blow to the VRA.

Given that the Trump administration has never filed a new VRA case, there’s clearly no commitment on the part of the federal government to bring cases to enforce voting rights. Branch’s view would remove the right of private parties to bring those cases as well, rendering the law essentially useless.

In a different case, Branch put forth a dissent arguing that the DOJ can’t go to the court to enforce a key portion of the Americans with Disabilities Act (ADA). That’s a stance that would leave people with disabilities vulnerable to discrimination in public services from cities and states. Last year, she wrote a majority opinion that refused to allow a man on death row with an IQ of 78 a hearing on the issue of his intellectual disability. Instead, she held the man, who had also received ineffective assistance of counsel, should be executed.

Branch has made clear that she doesn’t see the importance of protecting people from racial discrimination or discrimination based on disability. She’s well in keeping with the Trump administration’s stances on both of those issues.

Neomi Rao, D.C. Circuit

Neomi Rao, 47, is perhaps the most high-profile of Trump’s recent judicial picks, in part because she had a documented history of blaming sexual assault victims for their own assaults. During college, she wrote that women made sexual assault allegations because they regretted their own actions. She also blamed women for what they might wear or do, saying “misunderstandings occur from subtle glances, ambiguous words.”

While Rao was the administrator for the Office of Information and Regulatory Affairs at the U.S. Office of Management and Budget, she sought to block the collection of pay data. That pay data would help workers fight inequities, including closing the gender and racial pay gaps.

Rao now sits on the D.C. Circuit Court of Appeals. Last year, that court heard Trump v. Mazars, in which Trump sought to block Congress from enforcing a subpoena for financial records from his accountants and bankers. The D.C. Circuit ruled that the subpoena issued by Congress should be enforced because it was for a “valid legislative purpose” and that Congress had the authority to issue the subpoena and therefore Mazars had to comply. The case is now before the Supreme Court.

Rao dissented in the case, arguing for a near-limitless view of presidential power. She wrote that “investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power.” Rao argues the only way Congress can investigate Trump is via impeachment. Of course, given that the administration stonewalled much of the impeachment proceedings, this view would render it near-impossible to investigate the president.

Rao doubled down in March, when the D.C. Circuit decided In re: Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials. The case concerned the availability of grand jury materials to outside investigators. In particular, it pertained to whether the House Judiciary Committee could access certain grand jury materials from the Robert Mueller investigation as part of an impeachment proceeding.

The D.C. Circuit held that the material should be made available because an impeachment proceeding is a form of a judicial proceeding and there are circumstances in which grand jury materials are available in connection with a judicial proceeding. Rao again dissented, saying that since the materials were currently in the possession of the executive branch, which housed the Mueller investigation under the DOJ, the court couldn’t force the executive branch to give up those materials.

In Rao’s dissent, she argued that because the Judiciary Committee no longer needed the material for impeachment proceedings, it couldn’t have the grand jury information unless it went back to the trial court. This path would allow Trump to drag the proceedings out, likely past the 2020 elections.

No matter the approach Congress takes, Rao appears ready to block Trump from being the subject of any inquiry. Fortunately, the rest of the D.C. Circuit doesn’t seem to agree.

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