Why Trump Will Have To Work With The Senate, Including Democrats, To Get His Judges Confirmed

President Trump announces his nomination of Neil Gorsuch to the U.S. Supreme Court.

Kevin Lamarque / Reuters

WASHINGTON — If all goes according to Republicans’ plans, President Trump will have his first US Supreme Court nominee confirmed by the end of next week.

But the opportunity Trump has in front of him is greater than that: He could begin reshaping the rest of the federal judiciary — a branch that’s already proved to be a thorn in his side as he’s tried to advance his policies via executive action. In order to do so, though, he’ll have to find a way to work with Congress — including Democrats.

Trump inherited more than 100 federal district and appeals court vacancies. Under longstanding practice, senators of both parties have significant say in who ends up on the district courts within their states and influence over appeals court nominees as well.

As the healthcare bill debacle made clear, Trump has already run into trouble negotiating with Republicans in Congress. To fill judicial vacancies, he’ll have to contend with the wishes of both Republicans and Democrats. More than half of the vacant judicial seats are in a state with at least one Democratic senator. Thanks to a senatorial courtesy known as the blue slip process that Senate Judiciary Committee Chairman Chuck Grassley has said he’ll continue to honor, Democrats in those states will have the power to indefinitely hold up nominees if they don’t approve.

Senator Mazie Hirono

Joshua Roberts / Reuters

There are already signs Democrats intend to exercise that leverage. Two lawyers familiar with the process told BuzzFeed News that Hawaii Sen. Mazie Hirono, a Democrat, sent the White House a list of three lawyers she wants considered for a district court seat in the state — the very court where a judge has twice ruled against the administration in a challenge to Trump’s travel and refugee bans.

The three Hawaii candidates are the same lawyers that Hawaii’s senators recommended to President Obama for the same court vacancy. Obama’s nominee, who came from that list, never got a vote by the full Senate, and the nomination expired along with dozens of other Obama nominees at the start of the new Congress in January.

At a minimum, the move is a reminder to Trump that he won’t have free rein when it comes to the lower courts — at least not if he wants them to get out of committee, let alone confirmed.

“If [Democrats] wanted to play hardball on this and Grassley sticks to his guns, it could be a fairly serious limitation on the administration’s ability to fill those vacancies with people they want,” said Russell Wheeler, a visiting fellow at the Brookings Institution who tracks judicial vacancies and nominations.

While a White House spokesperson declined a request to speak with a member of the White House counsel’s office, and would not comment on how the White House planned to proceed on lower court nominations, BuzzFeed News has found signs the White House is adhering to past practice — at least in part — when it comes to lower court nominees.

Trump’s first lower court nominee, Kentucky federal judge Amul Thapar, was on the list Trump released last year during the presidential campaign of his potential US Supreme Court candidates — and comes with strong backing from Senate Majority Leader Mitch McConnell. The White House announced Thapar’s nomination earlier this month with no fanfare, a day after McConnell began sharing the news and in the midst of confirmation hearings for Supreme Court nominee Judge Neil Gorsuch.

Additionally, a Republican aide told BuzzFeed News that the White House had approached Utah Sen. Mike Lee’s judiciary staff and asked for possible names for district court seats.

Sen. Dianne Feinstein

Aaron P. Bernstein / Reuters

The White House has not only been working with Republicans on nominations. California Sen. Dianne Feinstein said in a statement to BuzzFeed News that she met with White House Counsel Don McGahn and Vice President Mike Pence in January and talked with them about lower court nominations.

Feinstein said she told McGahn and Pence that she would continue to use the same process she had used in the past for recommending nominees to the White House for California vacancies.

“Democratic senators each have their own process for recommending nominees. As the Obama administration consulted with Republican senators on nominees, we expect the Trump administration to do the same,” Feinstein said.

The White House does not intend to seek the opinion of the American Bar Association about lower court judicial nominees before announcing the president’s pick, according to a statement from ABA President Linda Klein to BuzzFeed News. The practice is in line with how President George W. Bush handled lower court nominations, but represents a break with every other president since President Dwight Eisenhower, according to Klein.

The decision is a marked contrast from the White House’s promotion of the ABA’s “well-qualified” rating for Gorsuch. As recently as Friday, White House press secretary Sean Spicer pointed to the ABA’s report about Gorsuch in urging his confirmation.

Blue-slip blues

Standing in Trump’s way is the blue slip process. When the president chooses a federal district or appeals court nominee, the judiciary committee chairman sends a letter — historically on blue paper, hence the name — to the two senators from the state where the judicial vacancy is located, asking them if they approve or disapprove of the nominee.

During Grassley’s time as chairman, he hasn’t moved on judicial nominees until both senators returned their blue slips. His predecessor, Vermont Sen. Patrick Leahy, a Democrat, had the same process. Grassley has said that he will continue to honor the blue slip process going forward. It’s not a formal rule, and chairs have enforced the courtesy more or less strictly over the years.

Democrats criticized Leahy for adhering to the blue slip process even when it empowered Republicans to hold up Obama’s nominees when they were in the minority, Wheeler said. But senators from both parties are likely to be protective of their power to influence who the president chooses for the federal bench, he said.

The White House historically has deferred to senators on nominees for the district courts — Trump will have to contend with the preferences of Republicans as well as Democrats. In some states, such as California and Texas, the senators have formal committees to screen and recommend applicants. In other states, it’s handled more informally, with the senators drawing on their own knowledge of the legal community and soliciting opinions from members of the bar.

For the circuit courts, the White House historically exercises more power, but still will often consult with home state senators, keeping the blue slips in mind. Of the 19 vacant appeals court seats, 11 are in states with at least one Democratic senator.

Jonathan Ernst / Reuters

Obama was thwarted in filling vacancies when Republicans felt that they didn’t get enough say in the process. When Jeff Sessions was under consideration for US attorney general earlier this year, Democratic senators asked him about his decision not to return a blue slip for Alabama federal judge Abdul Kallon’s nomination to the US Court of Appeals for the Eleventh Circuit; Kallon never got a hearing, and his nomination expired at the start of the new Congress in January.

Sessions — who had previously voted for Kallon’s nomination to the federal district court in Alabama — replied in writing that he didn’t feel that the White House engaged in “good faith negotiations” about the Eleventh Circuit nomination, so he chose not to return the blue slip.

“It’ll be interesting to see if Democrats turn around and weaponize the blue slip process,” Wheeler said.

With two Republican senators in Alabama, though, Trump shouldn’t have a problem putting forward a nominee with a conservative background for the Eleventh Circuit. In conversations with lawyers in Alabama, two names repeatedly came up as contenders — Kevin Newsom, an appellate attorney at a private firm who previously served as Alabama’s solicitor general under a Republican attorney generalgovernor, and US District Judge L. Scott Coogler, who has been backed by Alabama Sen. Richard Shelby.

Building on momentum

With just one nominee announced for a lower court so far, it’s not clear how quickly Trump will move on the rest of the vacancies. Republicans hope he’ll move fast to take advantage of their majority in the Senate; Democrats were frustrated with Obama’s pace in naming nominees when they held the Senate early in his first term.

Dan Goldberg, legal director for the liberal advocacy group Alliance for Justice, said that as the White House rolls out more lower court nominees, he expects advocacy groups on the left to try to capitalize on the momentum they’ve built up opposing Gorsuch.

“What’s been clear from the Gorsuch nomination is how critical the courts are to all Americans and I think what you’ve seen is a broad coalition that has fought for these critical constitutional values and legal protections,” Goldberg said. The role federal judges have played so far in blocking Trump’s travel and refugee bans have also helped to raise public awareness about the importance of the judiciary, he said.

Goldberg acknowledged that the left will be up against the well-funded Judicial Crisis Network, a group that has spent millions of dollars on ad campaigns in support of Gorsuch. Still, he said, “we’re confident that we have the voters and the American people on our side.”

A Judicial Crisis Network spokeswoman declined a request to interview chief counsel Carrie Severino. But Severino previously told BuzzFeed News that the organization was prepared to deploy resources to support Trump’s nominees if Democrats try to block them.

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Trump Says CNN Is Fake News — But That’s Where He Wants Surrogates

Jim Bourg / AFP / Getty Images

In tweets and tirades, President Donald Trump has made clear his opinion of CNN: “fake news.” But privately — to surrogates that boost his message across television networks — the president has an additional position: Get yourself some CNN airtime.

The dueling messages reflect Trump’s complex relationship with the network, which was both an early and important source of free media for his campaign and a pesky adversary with aggressive reporting that he has deemed unfair. Despite Trump’s barbs, people close to the president say that he ultimately recognizes the importance of CNN’s platform, especially as he eyes the future midterm elections and beyond.

During a March meeting, for instance, an administration surrogate regaled Trump with stories of how sad some CNN employees were the day after the election. “There was crying and anguish. You would have thought 9/11 happened,” the surrogate told Trump, as the president lapped it up. (A CNN source called that characterization “absurd.”)

Trump had advice for the surrogate, who now works at a rival network. “Looking to 2018 it would be better for us if you dive back into that fire at CNN,” the source recalled the president saying. Trump offered to help get the surrogate on CNN.

It’s not the first time Trump has demonstrated a more nuanced position on CNN behind closed doors. After an aggressive meeting at Trump Tower following Election Day — where Trump berated news executives and anchors — CNN chief Jeff Zucker stopped by a photo shoot with Trump shortly thereafter. As BuzzFeed News reported, Trump dropped the combative tone from prior meeting and became more schmoozy. (Zucker and Trump — who have a complicated personal history — have not spoken in months, according to a CNN source.)

The episodes highlight that while Trump may trash CNN and lump it in with his broader accusations of “fake news,” he also views the network as something important to swing voters, particularly in juxtaposition to its cable competitors of Fox News on the right and MSNBC on the left.

“I think that the president treats it like a negotiating position,” said longtime Trump friend Christopher Ruddy, CEO of Newsmax Media. “He personally despises CNN, and he has used that word to me to describe his feelings toward it.”

Ruddy said that a few days after an appearance on CNN’s Reliable Sources, Trump called him to say job well done. “I can’t go on CNN all the time to defend myself,” Trump said, according to Ruddy.

Some people close to the president told BuzzFeed News that they have not heard him advocate for pushing for more friendly faces on CNN. But Ruddy said that he counseled Trump that CNN treats pro-Trump guests fairly. “With CNN viewers, my experience is that they are somewhat open,” he said.

Jeffrey Lord, a CNN contributor who noted that he has never been an official Trump surrogate, said, “It wouldn’t surprise me that he would say to surrogates to get on CNN.”

What is too often overlooked, Lord said, is the president’s media savvy. “This is somebody who in his entire life came up in the media capital of the world of New York City. He’s been doing this for decades,” he said.

“If you read between the lines, you see the strategy,” said a CNN executive. “Strategically, it makes sense if he’s pushing contributors get on CNN. He knows that we are a critical lifeline.”

The White House did not respond to a request for comment.

Though Trump understands CNN’s importance in the media ecosystem, he hasn’t sat down for an interview with the network since August. Since taking office, Trump has given a series of prominent sit-down TV interview to the friendlier territory of Fox News with hosts like Sean Hannity, Bill O’Reilly, Jesse Watters, and Tucker Carlson.

Trump’s cable news obsession has been well documented, and staffers and executives at CNN, Fox News, and MSNBC know that the president is watching. Not like he tries to hide it. Earlier this month, half an hour after CNN referred to a new Gallup survey about Trump’s sinking approval numbers, the president tweeted: “Just heard Fake News CNN is doing polls again despite the fact that their election polls were a WAY OFF disaster. Much higher ratings at Fox.”

About 10 minutes after CNN’s “Reliable Sources” aired a segment about a New York Times TV ad, Trump took the bait again: “For first time the failing @nytimes will take an ad (a bad one) to help save its failing reputation. Try reporting accurately & fairly!”

“When there’s something that we report that he doesn't like, it’s ‘fake news.’ He may not like it, but he’s watching it,” the CNN executive said.

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Black Democrats Are Starting Their Own Groups To Work Outside Of The DNC

Tom Perez and Keith Ellison speak to reporters last month after Perez became DNC chair.

Chris Berry / Reuters

WASHINGTON — As the Democratic Party rebuilds after the 2016 election, a set of black-led political action committees has begun organizing as outside political groups, carving out their own lane for fundraising and their advocacy priorities — things black operatives say have been ignored by the major Democratic campaign committees.

By quickly moving to support black candidates, organize black donors, and lock into a tailored progressive agenda, though, the groups hope to create more leverage inside the party — akin to how EMILY’s List, Planned Parenthood Action Fund, and NARAL function.

“There's always been this longing for more support,” said Quentin James, a Democratic strategist behind one such group gaining traction, Collective PAC. “[The Democratic committees’] objective is not to elect black people to office. It’s to elect Democrats. We have to build independent power outside of any party that prioritizes our values and issues as a community, and to do that I think you have to consider that the DNC is not the sole vehicle to create that pathway and progress.”

Jessica Pierce, the national co-chair of Black Youth Project 100, said these new entities exist not just because of a lack of focus on disenfranchised communities and shared priorities — but because of an acknowledgement of the need to make changes at the infrastructure level, policy, staffing, and resources and that “essentially make us feel like we’re included” with having to deliver tangibly with changes.

“It's like we're in a bad relationship,” she said. “They say, ‘Hey, we hear you, we're going to change.’ Then they do worse. I think this moment is us finally saying, ‘This is not working for us.’”

These outside, splintered groups come at a challenging time for the party: The 2016 primary posed ideological and political questions about the party’s direction — how progressive its economic direction should be, what role money in politics should play, what kinds of candidates appeal to which kinds of voters — that remain unresolved. In the weeks after the election, media and some Democratic attention focused on white, working-class voters who voted for Donald Trump in once-Democratic strongholds like Wisconsin, and whether they should be the focus of new party efforts. That post-election emphasis irritated many black operatives; reduced black turnout in states like North Carolina and Michigan likely hurt Hillary Clinton, as well as the failure of the campaign to flip enough affluent white voters in states like Pennsylvania.

The DNC, under the new leadership of Tom Perez, has the slightly challenging task of unifying the various camps produced by the 2016 election. Even if opposing Trump, and doing so in lockstep, has become the driving issue of the early days of the new president’s administration — the new groups reflect one way that post-election debate is shaking out.

Donna Brazile, the former chair, called the group’s work “long overdue.”

“The best way to leverage the increasingly strong clout within the Democratic Party is to build a network of donors to support candidates running for office or those outside the party's mainstream for additional resource allocations,” she said in an email to BuzzFeed News.

Perez, asked about the new outside groups, struck the note of inclusion he has since his election to the position last month.

“For too long, the Democratic Party has told young people of color to take a seat at the table, sit down and shut up. That ends now,” Perez said in an email to BuzzFeed News. “We need to weave their ideas, their energy, and their leadership into everything we do as a party.”

“We talk a lot about millennials and people of color being the future of our party, but frankly that future is now,” he said in an email to BuzzFeed News. “Across the country, young people of color are mobilizing to fight for Democratic values. Our job is to turn that energy into electoral success. And the only way we do that is by ensuring that our leadership reflects the communities we represent in every zip code.”

The tensions do have a generational component: The new groups’ ideology is derived, in many ways, from Black Lives Matter, whose politics, tactics, and decentralized movement confounded Democrats, including, at points, Hillary Clinton’s campaign for president. Black Democrats in Washington support the groups, with leaders wary that Perez’s vision sound all too familiar saying they the DNC should engage them early and often instead of only a few weeks before an election.

(Not all Democrats, though: “The reality of it is what they’re doing ultimately is a good thing, and I applaud them,” said Jarvis Stewart, a veteran Washington-based communications strategist. “But I would simply caution that a tone that emphasizes race over a message about Democratic values alienates white voters they need to win, and it further plays into this notion of identity politics that the Democrats are trying to get away from.”)

The groups are prepared to deal with dissatisfaction. Higher Heights is organizing 1 million black women, to create a donor base and consolidate their economic and voting power. Groups like Black PAC and Power PAC are organizing black voters of just election years, organizing voters around issues related to the economy, criminal justice and voting rights. Collective PAC aims to identify, recruit, and support progressive black candidates at every level of government. And after a series of fits and starts during the campaign, a collection of organizers and strategists, led by the strategist Jessica Byrd of Three Point Strategies, are engaging to fix a dilemma in Washington: how to increase the political heft of — and coordination with — Black Lives Matter.

“There's a coordinated effort to organize black money to get behind candidates and political initiatives, and if the DNC doesn't follow through with these commitments, I can see these groups becoming stronger and black donors will start giving primarily to outside groups,” said James, of Collective PAC. “When that happens you have a much more leverage for demanding change.”

On a recent evening in Georgetown, inside a boardroom, Justin Fairfax, a candidate for Lt. Governor in Virginia, spoke quietly about his candidacy, giving a stump speech about his background for a collection of young lawyers.

James doesn’t believe that it’s fair that pressure has been put on the DNC to be this beacon of diversity and building political power for people of color. Perez could certainly make worthwhile changes, he said, but he and others are unsure if they will be to the level that donors, black political strategists, and activists want. In this shift, James and his wife, Stefanie Brown James, are a major part of a band of political action committees whose sole mission to elect black candidates.

“No one thinks of going to the DNC and saying, ‘This is the primary place where we go to elect pro-choice women,” said Quentin James. “They go to EMILY’s List or the Planned Parenthood Action Fund.”

To some Democrats, Perez represented the kind of establishment-backed candidate averse to change.

Strategist Jamal Simmons said the Democratic Party is going to have to get accustomed to a level of discomfort — like. increased transparency in processes, and attracting new grassroots candidates that may not seem viable in Washington.

“These groups have to be brought to the table or else the [rebuild] won't be considered legitimate,” Simmons said. “That's the kind of shifting that the establishment is going to have to accept — that it's not going to be congressional leadership making these decisions on its own.”

Collective PAC has a lofty goal: It’s already working behind the scenes to ready black gubernatorial candidates in Florida, Georgia, and Maryland.

“It’s a really galvanizing moment for all of these groups to exist,” said Kimberly Allen-Peeler, the co-founder of Higher Heights. “People are like, ‘Aren’t you guys in competition?’ Really for us to get to where we need to be in elected representation we need, like, 20 Black PACs, and [nonprofit organizations] doing this work because there's just so much to be done.”

“We’re at the point that we know it's up to us to mobilize our voters,” she said. “We can't rely on parties or other groups to necessarily do that in a way that's going to be really impactful for our community.”

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White House Won't Comment On Report That Trump Officials Helped Give Nunes Intel Reports

Chairman of the House Intelligence Committee Deven Nunes (R-CA) speaks to reporters on Capitol Hill.

Joshua Roberts / Reuters

White House Press Secretary Sean Spice — who previously said the idea of Trump administration aides giving House Intelligence Committee Chairman Devin Nunes info "doesn't pass smell test" — would not comment on a report that says two administration officials were involved in giving Nunes information that showed President Trump and his associates’ communications were incidentally collected in foreign surveillance exercise by US intelligence agencies.

On Thursday, the New York Times cited anonymous current US officials saying that Ezra Cohen-Watnick, the senior director for intelligence at the National Security Council, and Michael Ellis, a lawyer who works on national security issues at the White House Counsel’s Office who formerly worked on the staff of the House Intelligence Committee, assisted in disclosing the intelligence reports which Nunes then discussed with President Trump.

The Times report says that Cohen-Watnick, who was brought into the administration by Gen. Mike Flynn, former national security advisor, started reviewing “highly classified reports detailing the intercepted communications of foreign officials” after Trump tweeted that former President Obama had wiretapped him during the presidential campaign.

Nunes has come under fire for disclosing the intelligence to Trump while there is an open investigation into Russia’s meddling in the 2016 presidential election.

At his daily press briefing on Thursday, Spicer said that he read the Times report but refused to comment on the story, saying that commenting, “would be to validate certain things that I am not at liberty to do.”

Pressed by reporters to comment on Nunes’ trip to the White House to brief Trump, Spicer said, "If I start going down the path of confirming or denying one thing, we're going down a slippery slope"

When asked about a response to a question earlier this week about Nunes’ trip to the White House to brief Trump when Spicer said he would look into it, the press secretary continued to push back.

"I said we would look into it," Spicer said on how Nunes got into the White House grounds. "I never said we would give you answers."

A spokesperson for Nunes also declined to confirm the Times report.

"As he’s stated many times, Chairman Nunes will not confirm or deny speculation about his source’s identity, and he will not respond to speculation from anonymous sources," Nunes' office said in response to an email from BuzzFeed News.

Following the revelation from the Times, Rep. Eric Swalwell, a Democrat on the House intelligence committee, renewed the call for Nunes to recuse himself from the committee’s investigation.

"The House Intelligence committee must be independent, have credibility, and show progress to investigate Russia's attack on our election. It's time for Chairman Nunes to step aside from this investigation and for an independent commission to be created. If this report true, it reinforces why Chairman Nunes should be nowhere near this investigation,” Swalwell told BuzzFeed News.

“In last ten days he has cancelled a public hearing on the investigation and has spent more time at the White House than working with committee members. This was an attack on our country. It's bigger than one person. And America needs this investigation back on track,” Swalwell said.

In response to the report, Sen. Mark Warner, ranking member of the Senate intel committee, said that the situation surrounding Nunes get more "bizarre” every day.

"I can't make a judgment yet,” Warner said.

A spokesperson for House Speaker Paul Ryan, who has been asked repeatedly whether he thought that Nunes should recuse himself, said: "The speaker doesn’t know the source of the disclosure to Chairman Nunes. I’d refer you to the committee for more. As the speaker said this morning, the chairman has his full confidence."

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Justices Consider Decades-Old DC Murder Case — With Possible Effect On Prosecutors Everywhere

J. Scott Applewhite / AP

WASHINGTON — On October 1, 1984, Catherine Fuller was killed in an alley a few blocks from her home in northeast Washington, DC. More than a dozen people were indicted in connection with the murder and — more than 30 years later — the US Supreme Court heard arguments over whether prosecutors withheld information from the defense that could have changed the outcome of the trial.

Arguments on Wednesday focused on the facts of the Fuller case, with the justices delving into the finer points of the evidence, but the case could result in a decision with broader implications for how courts decide if prosecutors violated their obligation to turn over favorable information to defendants in criminal cases.

Prosecutors must turn over information that could help a defendant. But it’s up to prosecutors to decide what evidence falls under that umbrella. And when defendants later accuse prosecutors of failing to meet that obligation, they also have to show that the evidence could have changed the outcome of the case, which can be difficult to prove. A federal appeals judge wrote in an unrelated case in 2013 that there was an “epidemic” of prosecutors violating their disclosure obligations, which stem from the 1963 Supreme Court decision Brady v. Maryland.

Fuller’s murder in 1984 received extensive news coverage at the time. The prosecution’s theory at trial was that a gang of young men and women forced the 48-year-old Fuller into an alley, fatally beating her and also sodomizing her with an object that police never recovered.

Eight of the 13 people indicted in connection with the murder were convicted of first-degree murder at trial, three others pleaded guilty to lesser charges, and two were acquitted. The eight defendants convicted of first-degree murder maintained their innocence over the years, and the seven who are still alive pressed challenges, eventually making their way to the Supreme Court. All but one are still in jail — although even he has continued to press his challenge while on parole.

The justices on Wednesday focused on the argument that prosecutors wrongly withheld information from defense lawyers about another man, James McMillan, who was seen in the alley around the time that Fuller’s body was discovered and was reportedly acting in a suspicious manner. McMillan carried out violent robberies in the same area shortly after Fuller was killed.

The justices probed how much of a difference it would have made if defense lawyers argued an alternative perpetrator theory at trial that centered on McMillan. Justice Ruth Bader Ginsburg asked why it would matter that McMillan had a criminal history when some of the defendants did as well. John Williams, arguing for the defendants, said that McMillan’s criminal history was more on-point because they involved violent attacks on middle-aged women in the same neighborhood.

Justice Anthony Kennedy questioned the logic of McMillan staying around the alley if he was Fuller’s killer.

“If you commit a murder, you don't hang around for an hour,” Kennedy said.

Williams replied that McMillan was not “shrewd and sophisticated.”

“Criminals are not clever,” he said.

Justice Samuel Alito Jr. said it seemed like a “pretty substantial burden” for the defendants to convince a jury to accept an alternative perpetrator theory and conclude that the multiple witnesses who testified about a group attack were lying. Williams replied that there was “a reasonable probability that the jury would have had reasonable doubt,” which is the standard.

Deputy US Solicitor General Michael Dreeben told the justices that they could have “confidence in these convictions.” The evidence supporting the theory of an alternative perpetrator was weak and speculative, he said, and prosecutors at trial put forward multiple witnesses who testified about a group attack, even if the details of their accounts differed at times.

Ginsburg said that there was no way to know how a jury would have reacted to the information about McMillan. The standard, she said, was not whether a jury would believe it, but rather if they could believe it. Dreeben replied that even if the evidence gave a juror some reasonable doubt, that was not the same as undermining his or her confidence to the point of rejecting the group attack theory.

Justice Elena Kagan wondered why there weren’t more uninvolved witnesses, given that the attack took place near a busy street in the afternoon. Dreeben said police did their best to search for witnesses, but he suggested that “community fear” probably kept people from coming to the police.

It was “regrettable” that there weren’t more witnesses, Dreeben told Kagan, but frequently in criminal cases the only people who know what happened are those involved.

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The White House Thinks Black Lawmakers Could Be The Democrats Willing To Deal With President Trump

Carlos Barria / Reuters

WASHINGTON — Could black lawmakers be the Democrats that are actually willing to work with President Trump? That’s what the White House is hoping.

But almost a dozen senior aides, members, and lobbyists close to the Congressional Black Caucus told BuzzFeed News that black Democrats aren’t very likely to play ball with Trump. Few CBC members have gotten over Trump’s campaigning, nor his birther crusade against President Obama.

That doesn’t mean the White House isn’t trying — or that there hasn’t been a warming on the part of Democrats, though.

The president, sources said, is difficult to dislike in person — he’s a man eager for allies and, according to a source familiar with the meeting, was an active listener. According to a source, some black lawmakers walked out of their recent White House meeting feeling they were enlightening — and informing — the president of the United States, which was unthinkable with Obama, who met with them two years into his administration.

There aren’t very many moderate Democrats left, and many Democrats fear the reaction of liberal voters if they work with Trump — even on shared goals. The CBC is one of the most powerful caucuses in Congress, perhaps the most reliable voting blocs in the Democratic conference. At 49 members, it’s larger than the Freedom Caucus, which has the ability to disrupt Republican legislation. That makes the caucus appealing to Republican president with somewhat less conservative impulses.

“That is the strategy,” a senior administration official told BuzzFeed News, of targeting the CBC.

The administration began communicating with black lawmakers during the transition via Omarosa Manigault, assistant to the president and director of communications for the Office of Public Liaison. On Jan. 19, the CBC sent Trump a letter, critiquing Trump’s “New Deal For Black America” as representative of the same economics “that didn’t work for our communities in the 1980s or in the 2000s.” A source said Chairman Cedric Richmond was invited to the White House’s African-American listening session in February (he did not attend).

The meeting last week rankled some support staff. “I think when someone shows you who they are, [you should] believe them,” said one senior Democratic Hill source who asked for anonymity to speak openly about the prospect of the CBC working with Trump on legislation. “Especially when that person doesn't actually care about his job, American institutions, or the well-being of the communities represented by the CBC.”

Jaime Harrison, the chair of the South Carolina Democratic Party who worked for Rep. Jim Clyburn and spent part of his career on the Hill whipping votes for House Democrats, critiqued Trump’s attempting to get his healthcare bill off the floor of the House. Now, the combination of the White House’s budget (flat funding for HBCUs, gutting social programs), Trump’s attack of Rep. John Lewis, and Trump’s history with Obama aren’t helping Trump’s cause with the CBC.

Trump has created his own challenges with his, bullying folks, and the overall manner in which he’s gone about handling the presidency — all of which could keep specific members from believing that he’d come to the table in good faith.

“He’s his own worst enemy,” said Harrison. “But if I had to give them all a suggestion on how you get something done, it's tell him not to tweet, include Democrats from the start, don’t make threats and let the legislative process work itself out. Or he runs the risk of having his legislation sour.”

The CBC did not respond to a request by BuzzFeed News for comment.

But Richmond acknowledged at the White House last week that the administration and the caucus had common goals.

According to a source familiar with the meeting, one of the things that Trump address was both a reduction in crime in inner cities and local job growth. The source — who asked for anonymity to discuss a private meeting — described some type of proposal that appropriated federal funding for a summer jobs program as “low-hanging fruit” for Trump.

“It fits squarely within his brand,” the source said. “He’s a job creator, he wants to put people to work. He wants people to take those jobs and for crime rate to go down and local economies to be rejuvenated. It's a win, I think, we have a shot at getting because it’s not sexy… there are no partisan stakeholders for summer jobs.”

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DREAMer Detained For The Past Six Weeks Granted Release On Bond

Karen Ducey / Getty Images

WASHINGTON — A DREAMer detained since early February was granted release on bond by an immigration judge on Tuesday, a spokesperson helping with his case told BuzzFeed News.

Daniel Ramirez Medina, who has been in a detention center since he was picked up when US Immigration and Customs Enforcement (ICE) agents came to arrest his father on Feb. 10, is expected to be released soon, the spokesperson said.

Ramirez has been approved multiple times for the Deferred Action for Childhood Arrivals program (DACA) program and was a valid DACA holder at the time he was detained.

He has since filed a federal habeas corpus action, seeking to have the federal government justify his detention and asking a court to order his release. Ramirez's legal team — which includes prominent legal scholars, law firm attorneys, and nonprofit advocates — had asked the federal court to order Ramirez to be released while his case is pending. That judge declined to do so, stating that Ramirez's "avenue for seeking such release should occur in the context of his removal proceedings, which by his own admission, are not being challenged here."

On Tuesday, after Ramirez did seek relief from an immigration judge, the judge granted Ramirez release on bond while his case proceeds.

This is a developing story. Please check back at BuzzFeed News for the latest.

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Supreme Court Rejects Texas' Standards For Deciding Intellectual Disability In Death Cases

WASHINGTON — The Supreme Court on Tuesday tossed out Texas' standards for determining intellectual disability in death penalty cases, holding that the "medical community's current standards" limit how states can apply the court's ban on executing intellectually disabled people.

In the case of Bobby James Moore, the Supreme Court, in a 5-3 decision, rejected the standards that Texas had used because they "deviated from prevailing clinical standards and from the older clinical standards the court claimed to apply."

A trial court in Texas had found in 2014 that Moore was intellectually disabled and, therefore, ineligible for the death penalty in connection with his conviction for a 1980 robbery and murder of a grocery store clerk. The Texas Court of Criminal Appeals rejected that ruling, determining that Moore was not intellectually disabled under the Texas standards.

Justice Ruth Bader Ginsburg, writing the decision for the court, held that the seven questions used by Texas — the so-called Briseño factors — "creat[e] an unacceptable risk that persons with intellectual disability will be executed."

As BuzzFeed News detailed in a report examining the Texas test in advance of the argument, medical experts criticized the factors because they rely upon specific abilities — such as whether the person can lie, and whether their crime required planning — to judge whether a person has a disability, rather than assessing every aspect of their adaptive behavior.

Experts told BuzzFeed News that the Briseño factors did not reflect modern clinical standards of disability. On Tuesday, the US Supreme Court agreed — and held that those clinical standards constrain states' criminal law standards.

In rejecting those standards on Tuesday, Ginsburg wrote, "[T]he [appeals court] defined its objective as identifying the 'consensus of Texas citizens' on who 'should be exempted from the death penalty.'"

That, however, is not the law as detailed by the US Supreme Court, she continued.

"Mild levels of intellectual disability, although they may fall outside Texas citizens' consensus, nevertheless remain intellectual disabilities, and States may not execute anyone in 'the entire category of [intellectually disabled] offenders,'" she wrote for the court.

The Supreme Court had declared intellectually disabled people ineligible for the death penalty back in 2002. The justices followed up on that opinion in 2014 with a further ruling that limited states from applying a strict IQ-point cutoff in determining who is to be considered intellectually disabled.

Tuesday's decision strengthens the effect of those rulings, making clear that "[t]he medical community’s current standards supply one constraint on States’ leeway in this area."

As to Moore specifically, vacates the prior decision of the Texas Court of Criminal Appeals upholding Moore's death sentence and sends it back to the state court for further consideration in light of Tuesday's decision.

Chief Justice John Roberts agreed that the Briseño factors are "an unacceptable method of enforcing the guarantee of [the 2002 decision]." Nonetheless, he dissented from the court's decision, writing that he disagreed with the court's decision that the Texas appeals court "erred as to Moore’s intellectual functioning." Roberts concluded that was an independent reason to uphold the Texas court's decision that Moore is eligible for execution.

Roberts was joined in his dissent by Justices Clarence Thomas and Samuel Alito.

The court had heard arguments in the case in late November 2016.

This is a developing story. Please check back to BuzzFeed News for the latest.

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President Trump And America’s National Nervous Breakdown

There’s an old Sprite commercial, from the 1990s, in which it's a hot summer day on a city basketball court. Someone cracks open a Sprite, then jumps and cannonballs into the blacktop. It’s OK, though, because the asphalt has become a swimming pool.

This ad does not relate to President Trump or this year in any direct way, but it does in this conceptual one: that these days, looking into a phone screen — a hard, flat surface — is like dropping through a portal into an anxiety spiral.

Everything might seem so normal, then you unlock your phone and — bam — everything gets LOUD again. You have almost certainly had this experience: You wake up in the morning or from a nap or walk out of a movie, then check Facebook, Twitter, your texts to find people mid-thought, context-free, frozen in emotion, angry at Trump or the Trump people or the anti-Trump people or the media, angry and mocking at hypocrisy whose details aren’t yet clear to you, angry at how ineffectual someone is, or maybe they’re doing something even more indecipherable — it’s not anger, it’s just a meme or a quotation or a screenshot with "lol" or “2017” or just an emoji.

The mystery begins: What happened? What has Trump done now?

There you find yourself, physically in the car or outside the gym, but nevertheless creeping at the edge.

There you find yourself, physically in the car or outside the gym, but nevertheless creeping at the edge, taut, listening just long enough to pick up contours of the argument, trying to put together the news from these fragments.

The longer you listen, though, the more likely you are to be pulled under because this is a distraction, it’s a distraction from last night and it’s working, I'm losing track of whatever this is supposed to be distracting us from, not everything is 3-D chess, I’m getting tired of this 3-D chess stuff, this is classic Trump, this is classic Bannon, I’m not saying this is like the 1930s buuuuut, tfw democracy ends, that we're even talking about this is insane, this is lit, this is FALSE, he lies, he’s a liar, why don’t they say he’s a liar, if the media spent a little less time hysterical like this and more on actual news, fake news, FAKE NEWS, notice what day it is when this happens, this is the third time that Jared and Ivanka were away, actually if you look at when this happened in 1993, a few thoughts on how this affects Trump’s base 1/x, oh now they care about this, now you pretend like you care, I don’t remember them caring about this when Obama did it, I can remember when Trump cared about this, if these people cared about this in June or October or ever in their lives then maybe I’d take them seriously — and on and on and on.

There’s a Twitter account that tweets just one thing, all day.

While this is funny, if you step back and imagine that the people who retweet this even slightly feel that “AHHHHHH” reflects what they actually think, you can then imagine Twitter as a village of intermittent, solitary screams.

And why are we living this emotionally fraught, all-consuming, fluid yet didactic, meta argument over how to act or think about each day?

“Usually around 6:30 p.m., or sometimes later,” the New York Times reported earlier this year, “Mr. Trump retires upstairs to the residence to recharge, vent, and intermittently use Twitter… he is almost always by himself.”

In the morning or late at night, like Moses down from the mount to repeatedly slam a car door into your forehead, here’s Trump: accusing Obama of wiretapping him, indirectly accusing Obama of using the Brits to spy on him, quoting Andrew Napolitano (“All we did was quote a very talented legal mind”), joking that he and Angela Merkel share Obama spying on them, retweeting Bill Mitchell (“EXACTLY AS I SAID - House Intel Chair: We Cannot Rule Out Sr. Obama Officials Were Involved in Trump Surveillance“), explaining how it's actually fine what he did (“Now remember this, when I said wiretapping, it was in quotes. Because a wiretapping is, you know today it is different than wiretapping.”). Then, of course, there's little part that blossomed from the original tweet (“Terrible!”), every dismissal (GCHQ, FBI, DOJ, the Intelligence chairs), every theory and story about how this idea got into Trump’s head, every blind quote about whether someone has apologized (“no way, no how”) or just who should apologize to whom ("That's up to him"), every lecture about how FISA courts work, every lecture about under what conditions the CIA can make your television can spy on you, every sick own, every gif of grim ol’ Angela Merkel. Hey look, in the meantime, he can’t be doing so badly, because he’s president, and you’re not, you know. Say hello to everybody, OK?

Quench your thirst with a refreshing Sprite.

Via youtube.com

That’s just one thing that’s happened this month. There are a hundred more, of various sizes and shapes.

This is what it’s like to experience true dissonance. There’s so much discordant noise that just making out each individual thing and tracking its journey through the news cycle requires enormous effort. It's tough to get your bearings. Trump’s presidency currently poses a fundamental question for each person: Is this overall moment weird but ephemeral, maybe not so bad — or is it an emergency? Given the current level of uncertainty (does Trump really mean X?) and the sheer volume of incoming information (what will Trump do tomorrow?), each day demands your judgment. Is this normal? Is this normal? Is this normal?

These questions are exhausting. And sometimes they drift in a slightly more meta direction. There’s, for instance, a tide of previous apolitical, or softly political, people now sorting out where politics is OK (South Beach Wine and Food Festival) and where it is not (a Facebook group for Outlander fans). Parts of the left have become obsessed with enforcing the purest standard of resistance to Trump for their own party — how total can opposition be? That must be the standard. Parts of the conservative movement have devolved into an “anti-anti-Trump right” — consumed with attacking the left or clowning the media, and backing themselves into indirectly defending the president. As Jonathan V. Last recently wrote, “Trump is the thing. And focusing on the excesses of the anti-Trump forces means focusing on a meta-issue rather than the primary issue.”

This is what it’s like to experience true dissonance.

Who can blame us, though?

We’re more than a year into doing politics all the time at general election saturation (that's not normal), nervously waiting for a resolution that isn’t coming. Trying to find your way under the crush — to determine the truth amid the complexities of protocols, regulations, legislation, ideology, anonymous sources, conflicting reports, denials, public statements, his tweets — it’s too much. We can't live like that!

Besides, this is the era of the cable news revival and the weighted social media algorithm. People's reactions — their theories about what's really going on here — end up occupying as much space as the actual action. And nothing's more infuriating than the wrong reaction.

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Trump Extends A Hand To Hispanic Businesses — But Some Are Worried About What Happens Next

WASHINGTON — At the Latino Coalition's "Make Small Business Great Again" event this month, Linda McMahon, who leads the Small Business Administration, told the Hispanic audience she's leaning on the advice of group’s chairman, Hector Barreto.

Vice President Mike Pence followed, opening his afternoon speech with a clunky, but well-received "buenos tardes a todos!" He said that Latino small businesses are the fastest-growing in the nation. "Can we give a round of applause to all the Latina small business owners in the room?" He flashed a wide smile.

A week later it was Trump's daughter, Ivanka Trump, who held a private listening session with a dozen Latina entrepreneurs.

The same day, chief of staff Reince Priebus held a meeting with a larger group from the U.S. Hispanic Chamber of Commerce. With the campaign over, former foes like USHCC president Javier Palomarez were welcome to engage the administration. Palomarez, who endorsed Hillary Clinton for president during the campaign, heaped praise on Priebus — the USHCC was lucky to have him!

"You don't have to all of a sudden love the president but I think you’re going to love his policies," Steve Cortes, a Fox News contributor, said at the meeting.

In the Trump administration, where tweets are a form of currency, the USHCC was treated well. Ivanka Trump tweeted about her meeting with Latinas, Trump retweeted the group, and the president dictated his own tweet to spokeswoman Hope Hicks.

"My representatives had a great meeting w/ the Hispanic Chamber of Commerce at the WH today. Look forward to tremendous growth & future mtgs!" he tweeted.

Away from the Washington policy summits and black tie dinners, though, some Latino-owned small business owners describe a climate of fear affecting employees and business itself. In Latino and immigrant communities there is rising concern, even among those close to the Trump administration, about an immigration crackdown. People are foregoing trips to many places outside of work and their homes, which is having a deleterious effect on Hispanic businesses in majority Latino cities.

In some immigrant communities, industries as varied as restaurants to tax preparation say any number of issues — from immigration enforcement to trade renegotiation — have created enormous uncertainty. Many stories are anecdotal, but the variation in industry reflects how that uncertainty about how Trump will govern has chilled some Latino areas; even if the administration doesn’t make severe changes to the way immigration or trade is enforced, a lot of people think they will.

In areas with large Latino populations, for instance, taxes can be tricky. Many immigrants, including those who are undocumented, file their taxes using an I-10 form rather than a social security number, which some obviously do not have. A manager at Toro Taxes in Las Vegas, whose customers are 85% Latino, said the effect of Trump's win was disastrous and swift. With less than a month to go before the April 15 deadline, his business is down 40% from last year.

"They work and they usually come and do their taxes but they're scared because of rumors that people are going to get them with the police acting like immigration," the manager said, asking his name to be withheld. "This president instead of building the country he’s going to kill the country."

A consultant noted that Univision was recently interested in setting up an informational town hall in Las Vegas to calm fears in the community. "They’re hurting and losing a shit ton of money because Latinos are in panic mode," the source said.

Univision itself, in many ways a barometer of the state of the Hispanic community in the U.S., embraced anti-Trump activism during the campaign, to their detriment. After Trump’s win, they’re now feeling the effects of timid advertisers worried that Latinos are not spending, according to two network sources. Revenue for the Univision Television Group that spans more than 120 local television and radio stations across the country is expected to be down roughly $15 million in the first quarter and $50 million in the second quarter, though company sources expect a rebound in the third and fourth quarters.

Mercy Mosquera, the owner of Tierra Colombiana restaurant in Pennsylvania was a 2015 winner of the Philadelphia Minority Business Leader award. She said while the area she works in is 90% Hispanic, her customers breakdown half-Latino, and half other groups. Still, she has heard the whispers — the uncertainty and feeling that they should save money just in case.

"You do realize a customer that used to come three or four times in a week, maybe now they come once, which affects us," she said.

Jaime Chamberlain, the president of a company based in Nogales, Arizona called J-C Distributing Inc., which distributes Mexican produce in the U.S., said it was too early to judge Trump. But Chamberlain noted that Trump’s rhetoric on disintegrating the NAFTA trade deal between the U.S. and Mexico, though, or changes to the way the United States taxes exports is alarming and could hurt his business.

"It's always a concern," he said, before sounding a note that everything should be fine. "We have a wide group of customers that need Mexican food."

The new DNC chair Tom Perez told BuzzFeed News that Trump’s “hateful” rhetoric and policies toward immigrant families have stoked fear in communities, “including schools and small businesses.”

“The Latino community in Philadelphia even had to cancel their Cinco de Mayo celebration due to fear of deportations,” Perez said.

The Trump administration wants to be seen as tough and unforgiving when it comes to people in the country illegally but does not want to harm Hispanic businesses. An administration insider said what they've heard is also anecdotal — people who only want to go to work and come home and fear even going to the corner store, but see it as a problem.

"I think it’s unfortunate, it bothers me and I think it’s real," the source said.

Courtesy Steve Cortes

In Washington, the conversation is notably wonky. Hispanic businesspeople zeroed in on regulations and access to capital as starting points. Jennifer Korn, the administration's deputy director of the public liaison office, whose job it is to connect with key communities, told BuzzFeed News that Hispanic business groups appreciated that out of the gate Trump signed an executive order which removes two regulations every time one goes into effect.

Allen Gutierrez, executive director of the Latino Coalition, said that his group was specifically energized that the administration moved to stop Obama's overtime rule that would make more workers eligible for overtime pay but conservatives argue would hamstring employer flexibility and that Trump seeks to scrap the fiduciary rule that protects investors from the decisions of their financial advisors but is also viewed by some as an onerous regulation.

Korn said the administration is working to have communities know the positive message it espouses and said some of the blame for fear in communities lies at the feet of media who amplify it.

"That’s why going to their conferences is important and inviting them to the White House," she said, of Hispanic groups. "The only way to get through misperceptions, what the media is saying, is sharing what’s important to us and what’s important to you. During almost every single listening session people say 'we feel like we have a voice in this administration.'"

Besides the president, Korn pointed to Priebus who sat in the USHCC meeting and spearheaded the RNC's 2012 growth and opportunity project that Trump largely cast aside, as someone who recognizes the importance of the Hispanic community and a reason why the efforts will continue past the opening months.

"Reince even before coming to the administration has cared about engaging in all communities," Korn said. "What’s great is he is continuing that commitment."

But supporters say the commitment to Hispanic businesses starts at the top with Trump. Cortes, the Fox News surrogate, finally got to meet the president during his visit to the White House and left all smiles with an inception-esque photo of Pence taking a photo of him and Trump with his trademark thumbs up. Cortes said he told Trump that he got 30% of the Hispanic vote when the media narrative was that he "hated" Hispanics.

"My goal for you in 2020 is to get 50%," Cortes said. "Well, we’ll never lose an election again," Trump responded.

Outside the Latino Coalition event after Pence spoke, Irma Aguirre, who served on Trump's small business advisory council, tried to explain the optimism she feels in the Trump presidency. She saw her business take a major hit from protesters for inviting him to her restaurant El Sombrero Mexican Bistro in Las Vegas during the campaign.

She lauded his personal touch, recalling that during the campaign Trump asked her and other business owners how he could help them. They told him that small business loans would help with access to capital and she believes regulations that have already been slashed on lenders will make it easier for small businesses.

Aguirre acknowledged that there is fear in Latino communities — also blaming the media for "fearmongering" — but she said business owners she speaks with are excited about President Trump.

"When he got elected many of us felt that wow I think this is going to be a real type of a change because he's a businessman and he gets us," she said.

But just three miles away, the manager at Toro Taxes said the message from immigrants and past customers scared to file taxes is already hurting his bottom line, which should concern the administration.

"We’ll wait and see what’s going to happen with this president," they tell him. "If they don’t deport us we’ll do our taxes next year."

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Trump Says Obamacare Will "Explode" After Replacement Fails In Congress

Pablo Martinez Monsivais / AP

Just moments after Republicans scuttled their health care bill Friday, President Trump said Obamacare was "imploding and soon will explode," and added that he never promised to quickly repeal it.

Trump discussed the failure of the Obamacare replacement — which was one of his signature issues on the campaign trail — during a news conference in the Oval Office. House Speaker Paul Ryan pulled the health care bill Friday after failing to secure enough votes before a roll call.

"We couldn't quite get there," Trump told reporters. "We were a small number of votes short. There are many people who don't realize how good our bill was."

Though the failure was a major setback for Trump's early presidency, he said Friday's turn of events was "perhaps the best thing that could happen" because "we'll end up with a truly great healthcare bill in the future after this mess known as Obamacare explodes."

Trump repeatedly described Obamacare as teetering on the edge of destruction, saying later that "it's imploding and soon will explode."

"And it's not going to be pretty," he added.

Trump also speculated that at some point, "Democrats will come to us and say let's get together and get a great health care bill," adding that he did not feel betrayed by Republicans who refused to vote for the health care bill.

The president also pushed back against criticism regarding his time table.

"I never said repeal and replace it within 64 days," he said. "I have a long time."

However, Trump repeatedly talked about repealing and replacing Obamacare while campaigning last year. And in a tweet in February 2016, he promised to "immediately repeal and replace" the Affordable Care Act.

But on Friday, Trump said he would "let Obamacare go its way for a little while. Then we'll see how things go."

LINK: Republicans Just Gave Up On Repealing Obamacare

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Federal Judge Sides With Trump In A Challenge To The New Travel Ban Executive Order

Jonathan Ernst / Reuters

WASHINGTON — President Trump got his first court win on Friday in the challenges to his new travel and refugee executive order, as a federal judge ruled against a lawsuit backed by the Council on American–Islamic Relations in Virginia.

US District Judge Anthony Trenga, in a 32-page opinion, found that the plaintiffs in the case — Linda Sarsour v. Donald Trump — were not likely to succeed in their challenge to the March 6 executive order barring travel from six Muslim-majority countries for 90 days and temporarily halting the refugee program.

Specifically, Trenga ruled that the challenge to the executive order was unlikely to succeed on the statutory claim that the order violates the Immigration and Nationality Act, and the constitutional claims that it violates the Establishment Clause or the Equal Protection Clause.

"In determining whether the Plaintiffs have made the required showing, the issue is not whether EO-2 is wise, necessary, under- or overinclusive, or even fair. It is not whether EO-2 could have been more usefully directed to populations living in particular geographical areas presenting even greater threats to national security or even whether it is politically motivated," Trenga wrote.

The legal issue before him, Trenga wrote, "is whether EO-2 falls within the bounds of the President’s statutory authority or whether the President has exercised that authority in violation of constitutional restraints."

Trenga placed great weight on the significant changes made between the first and second executive orders on the issue and concluded that the executive order likely did fall within the president's authority. While he did take Trump's campaign and other statements into account, in addition to those by advisers like Stephen Miller, Trenga concluded that the new order is clearly enough within the president's authority that the statements do not render it unconstitutional.

"[T]he substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that
Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose," he wrote.

Two high-profile provisions of the executive order — the 90-day travel ban and 120-day refugee ban — remain unenforceable currently. That's due to a temporary restraining order issued by a federal court in Hawaii and a preliminary injunction — currently being appealed by the Justice Department — issued by a federal court in Maryland.

In a sign of the difficulties faced by the administration in defending the executive order, however, a new lawsuit was filed in federal court in Washington, DC, on Friday morning by the Universal Muslim Association of America and two anonymous individuals — challenging the temporary travel ban, but also challenging the Iraq-specific section of the executive order (Section 4).

Read Judge Trenga's opinion:

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Comet Ping Pong "Pizzagate" Shooter Pleads Guilty To Weapons Charges

Edgar Maddison Welch surrenders to police Sunday, Dec. 4, 2016.

Sathi Soma / AP

WASHINGTON — The North Carolina man charged with bringing loaded guns into a Washington, DC, pizza restaurant to investigate the "Pizzagate" conspiracy theory pleaded guilty on Friday to two weapons charges.

As part of a plea deal, prosecutors agreed to drop a firearm possession charge against Edgar Maddison Welch, 28, that carried a mandatory minimum sentence of five years in jail and a maximum sentence of 15 years in jail.

The plea deal did not include an agreement about what each side would seek at sentencing. The two weapons charges that Welch did plead guilty to — one federal, one under DC law — each carry maximum sentences of 10 years in jail, but according to the plea agreement Welch faces estimated sentencing guidelines of 18 to 24 months for the first charge and 18 to 60 months for the second charge.

Welch agreed to pay $5,744 in restitution to the restaurant, Comet Ping Pong, to cover damage to computer systems, a door and a lock, and a ping pong table; according to charging documents, he fired several shots inside the restaurant. He'll also have to forfeit three firearms and a box of ammunition to the government.

A sentencing hearing is scheduled for June 22.

Welch allegedly walked into Comet Ping Pong, a restaurant in northwest Washington, around 3 p.m. on Dec. 4 carrying a loaded AR-15 rifle and a .38 caliber handgun. He later told police that he was investigating reports he’d seen online that the restaurant was the site of a child sex slave ring, according to charging documents.

Employees and customers inside the restaurant, including children, fled when Welch entered, according to charging documents. An employee who was outside said that he heard three loud bangs, and that when he came inside Welch pointed the rifle at him, an allegation that Welch denied. No one was injured. Welch told police that he fired the rifle to try to open a locked door, and left the restaurant when he found no evidence of child sex trafficking, prosecutors said.

He pleaded not guilty in December to federal and local gun charges. He's been in jail since his arrest, and will stay in jail until his sentencing.

Welch spoke little during the hearing, except to say that he understood the charges against him and the plea deal he had reached with the government. His lawyer, federal public defender Dani Jahn, and prosecutors declined to comment on the agreement after the hearing.

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Appeals Court Sets May 8 Arguments In Travel Ban Case Out Of Maryland

Carlos Barria / Reuters

WASHINGTON — A federal appeals court in Richmond, Virginia, will hear arguments over part of President Trump's revised travel executive order on May 8 — later than the Justice Department had sought, but sooner than the plaintiffs challenging the president's action proposed.

The Justice Department is appealing a preliminary injunction that halts enforcement of the 90-day ban on travel from six Muslim-majority countries. The injunction, from a federal court in Maryland, halts enforcement of section 2© of the executive order and was issued by US District Court Theodore Chuang more than a week ago.

The Justice Department, in a Wednesday court filing, had asked for the court to combine briefing on its forthcoming motion for a stay pending appeal with the briefing on the merits of its appeal of Chuang's order. Under their proposal, briefing would have been completed by April 5, with oral arguments to follow at "the earliest possible opportunity" after then.

The plaintiffs in the case — individuals and nonprofit refugee organizations — opposed combining the briefing schedules, setting forth a proposed timeline that would have put off oral arguments on the merits until at least late May.

The US Court of Appeals for the Fourth Circuit on Thursday declined the Justice Department's request to combine the briefing schedules, setting the stay request briefing schedule for the next two weeks and ordering the merits briefing to take place on an expedited schedule, finishing by April 21.

Then, at 1 p.m. May 8, a three-judge panel of the Fourth Circuit will hear arguments in the government's appeal.

All of this is taking place alongside the more broad order out of Hawaii, which is blocking enforcement of all of sections 2 and 6 of the new executive order — the travel and refugee bans, respectively. That nationwide order remains in effect, and the Justice Department has not attempted any appeal of the temporary restraining order issued in the case (a step the department took against a TRO issued in response to the first iteration of the executive order).

This is a developing story. Please check back at BuzzFeed News for more.

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Progressive Group Criticizes Black Lawmakers For Meeting With Trump

Jim Watson / AFP / Getty Images

WASHINGTON — A progressive group urging primaries for any Democratic lawmaker who does not do everything they can oppose Donald Trump on Thursday slammed a high-profile meeting between black lawmakers and Trump as "shocking."

#WeWillReplaceYou also panned a statement by the chair of the Congressional Black Caucus chair that the largest Democratic caucus and President Trump had shared goals. Richmond told reporters Trump indicated he wanted to have the meetings regularly.

"I don't how there can be shared goals with a president who in two months has directly cut services and called for more financial cuts or the complete elimination of programs that protect the black people in the most need in this country," #WeWillReplaceYou co-founder Jessica Pierce told BuzzFeed News.

"I will tell you that it was a meeting where both sides listened, and we were very candid about disagreements," CBC chair Rep. Cedric Richmond told reporters. "But the surprising part was that when we talked about the goals, there were more [similarities] than there were differences."

In an email to BuzzFeed News, a spokesperson for the CBC said leadership met with President Trump to push him on matters of affecting black Americans, armed with a policy paper titled, "We Have A Lot To Lose."

"We understand that the policies and programs the president is promoting will hurt some of the most vulnerable African Americans across the country. This is exactly why we accepted the president’s request to meet, talked with him for nearly 45 minutes about our concerns, and offered 130-pages of alternative policy solutions."

#WeWillReplaceYou is a project of the group All of Us, and an effort to channel grassroots energy into shaping Democratic politics. "Donald Trump is a threat to the American people and everything we believe in," the group's website read in an appeal to supporters. "Millions are rising up in resistance, but too many Democrats have been enabling and collaborating with him instead."

But opposing Trump at all costs has proven a quandary for some Democratic lawmakers. Some believe it's part of their responsibility to engage the president on any number of topics, or that it's in the best interest of their constituents to vote for his cabinet nominees, or work with the White House see through big projects like an infrastructure bill.

Criticism of black leaders cozying to the administration have happened at the grassroots level, but Thursday marked one of the first times national progressives leading the Trump resistance singled out black lawmakers as out of touch with the movement against Trump.

"The leaders of the CBC need to wake up and pay attention," said Pierce. "They're posing for pictures in the Oval Office and we need them to put pressure on the President and fight for policy that reflects the needs of black people."

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Democrats Will Try To Filibuster Trump's Supreme Court Nominee

Jonathan Ernst / Reuters

WASHINGTON — Senate Minority Leader Chuck Schumer announced on Thursday that Democrats will try to mount a filibuster against President Trump's nominee for the US Supreme Court.

The move will force Republicans to find a supermajority of 60 votes to advance Judge Neil Gorsuch's nomination to a confirmation vote. If they can't, Senate Majority Leader Mitch McConnell and the Republicans will have to decide whether to take the dramatic step of changing the vote threshold and essentially eliminating the filibuster.

The news came in the midst of the confirmation hearing for Gorsuch before the Senate Judiciary Committee. Schumer made his announcement from the Senate floor as members of the judiciary committee heard from witnesses for and against Gorsuch's nomination. (Gorsuch finished his testimony on Wednesday evening and wasn't at the hearing on Thursday.)

Historically, it took a 60-vote supermajority to end a filibuster over a Supreme Court nominee and move to a confirmation vote.

If Republicans don't have the votes, they could attempt to change the rules — the so-called "nuclear option." If that effort is successful, going forward it would only take a simple majority to advance a high court nominee.

Senate Democrats invoked the nuclear option in November 2013 to change the supermajority rule for lower court nominees, in order to push through President Obama's nominees to the US Court of Appeals for the DC Circuit. The effort was successful in getting Obama's nominees confirmed, but it also means that it is now harder for Democrats to block Trump's nominees to the lower federal courts.

Schumer announced the move by highlighting that recent past Supreme Court nominees were similarly forced to reach the 60-vote threshold.

"To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules I say: if this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees, and President Bush’s last two nominees, the answer isn’t to change the rules – it’s to change the nominee," Schumer said in his prepared remarks on Thursday.

Noting that Schumer had announced he would attempt to block any nominee before Gorsuch was even nominated, a McConnell spokesperson pushed back.

"After spending much of last year lamenting the consequences of a vacancy on the Supreme Court, he’s now arguing to keep the seat vacant for the next four or eight years. Try to figure that one out," Don Stewart told BuzzFeed News via email. "I guess #WeNeedNine only applies when there’s a Democrat president."

Pennsylvania Sen. Bob Casey also announced on Thursday that he would oppose Gorsuch's nomination and vote "no" on any effort to end debate on the nomination, known as a cloture vote.

Additional reporting by BuzzFeed legal editor Chris Geidner.

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Justice Department Sends Mixed Messages In Continued Fight To Defend Trump's Travel Order

Kamil Krzaczynski / Reuters

WASHINGTON — Nearly a week after a federal district court in Maryland issued a preliminary injunction against the Trump administration's 90-day travel ban for people coming from six majority-Muslim nations, the Justice Department presented a mixed message to the federal appeals court about what it wants next for the case.

The Justice Department told the US Court of Appeals for the Fourth Circuit on Wednesday that it will be asking the court to put on hold the lower court ruling against part of President Trump's second attempt at the travel-related executive order while the government appeals the decision.

In the same filing, though, the department recommends that the court not rule on the department's coming request for at least two weeks.

The Justice Department lays out an unusual request. They're asking for an expedited and full briefing on the merits of the appeal to be done at the same time as the briefing on the forthcoming stay request. The department is asking for that briefing to be completed before the court rules on the stay request.

Typically, the party appealing a ruling asks for a stay pending appeal in advance of the appeal itself — it's a request for the court to put on hold a ruling during the appeals process. By intertwining the stay request with the merits of the appeals process, it's not clear why the court would need to rule on the stay request.

The department filed a notice on appeal on March 17, at which time the appeals court had issued an order setting the default timeline for the case to proceed. That timeline would mean the federal government's opening brief would be due April 26 and briefing wouldn't be completed until early June. The Justice Department on Wednesday asked for that to be sped up, with briefing completed in the case by April 5.

Shortly after the Justice Department filed the request, the Fourth Circuit asked for the plaintiffs in the case to respond to the request by the end of the day.

The moves come as the Justice Department appears to be interested in moving forward on the Maryland case — brought by nonprofit refugee groups and individuals — even as it has not sought to appeal a more broad order out of Hawaii halting enforcement of both the travel and refugee provisions of the executive order.

After all that, the Justice Department has still not yet filed the actual request for a stay pending appeal at the Fourth Circuit. (By comparison, regarding the first travel ban, the Justice Department filed its request for a stay pending appeal with the appeals court less than 24 hours after the district court issued the order halting enforcement of the executive order.)

Even more confusingly, all of this is happening while the Hawaii order remains in effect. And so long as the temporary restraining order issued by the federal district court in Hawaii remains in effect against both the travel and refugee bans, a stay of the injunction in Maryland would have no effect on whether the Trump administration can enforce the travel ban.

So what kinds of factors could be driving this decision?

Appeals from Hawaii courts go to the US Court of Appeals for the Ninth Circuit, which ruled against the Trump administration's request for a stay pending appeal on the first executive order and has received Trump's disdain in public statements since. The Fourth Circuit — which includes Maryland — has yet to rule on either executive order.

The strategy from the Justice Department appears to be getting a ruling on the merits from the Fourth Circuit — with the hope of a ruling in the administration's favor — before the Ninth Circuit has a reason to rule on the new executive order.

Even if the Justice Department does succeed at the Fourth Circuit, the administration still wouldn’t be able to enforce the new executive order. But if it did, that could change the public dynamics and also could set up a legal conflict with the Ninth Circuit as the Hawaii case proceeds to a preliminary injunction and appeal. That could make it more likely that the Supreme Court would take up and resolve this issue.

More importantly, under that scenario, the timeline could be such that a ninth justice — the confirmation hearing for Trump’s Supreme Court nominee, Judge Neil Gorsuch, is expected to end on Thursday — would be on the bench by time the case reaches it.

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Trump's Supreme Court Nominee Says He Would Have "No Difficulty" Ruling Against The President

Jonathan Ernst / Reuters

WASHINGTON — Asked if he would have any trouble ruling against President Trump, US Supreme Court nominee Judge Neil Gorsuch said on Tuesday that he would have "no difficulty" ruling for or against any person.

Even Gorsuch himself called it a "softball" question, answering that he would make decisions "based on what the laws and facts in the particular case require."

That question, from Senate Judiciary Committee Chairman Chuck Grassley, kicked off the second day of Gorsuch's confirmation hearing. Gorsuch early on stressed his commitment to judicial independence, twice talking about how there are no Democrat or Republican judges.

Later, Vermont Sen. Patrick Leahy asked Gorsuch about Trump's contested executive orders temporarily blocking travel from certain Muslim-majority countries and suspending the US refugee program. Gorsuch said that the Constitution guaranteed the free exercise of religion and due process — and that the Supreme Court had held that undocumented immigrants had due process rights — but that it would be "grossly improper" for him to say how he would rule in a specific case.

Leahy asked if the president's national security determinations could be reviewed by a court.

"Senator, no man is above the law," Gorsuch replied, a line that he would repeat several times, at one point specifically saying that it was true for the president of the United States.

The question of whether Gorsuch would show independence from the president who has nominated him became a recurring theme in the opening hours of what is expected to be a long day of questioning for the nominee.

Trump said during the campaign that he would choose a justice in the same conservative vein as the late Justice Antonin Scalia, and specifically said he would nominate someone who would reverse Roe v. Wade. Gorsuch said he was aware of discussion during the presidential campaign about litmus tests — he did not mention Trump by name — but said he did not believe in litmus tests for judges.

"I wasn't about to become party to such a thing," Gorsuch said. He said later that at no time during the nomination process did anyone ask him to make any commitment or promise to rule a certain way in a case.

Asked specifically about Roe v. Wade, Gorsuch said he recognized it as court precedent, but avoided discussing whether he agreed or disagreed with it. He gave a similar response to questions about other big Supreme Court decisions, such as the Heller case about the Second Amendment right to keep firearms in the home. Pressed by Ranking Member Dianne Feinstein, Gorsuch acknowledged that Roe had been reaffirmed many times.

Later, Sen. Lindsey Graham raised the question directly, asking, "Did Trump ask you to overrule Roe v. Wade?" When Gorsuch said no, Graham asked what he would have done if Trump had done so.

"Senator," Gorsuch replied, "I would have walked out the door."

Gorsuch told the committee that he did not get any advance notice from Trump's campaign last year that Trump, then a candidate, planned to include him on his second short-list of possible Supreme Court nominees.

Gorsuch said he learned the news just after having breakfast with a legal scholar who coincidentally had been asking him how he felt about the fact that Trump hadn't included him on his first Supreme Court list. Gorsuch said he replied at the time that he was content with his life in Colorado; he's served on the US Court of Appeals for the Tenth Circuit in Denver since 2006.

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Dems Launch Their Criticism Against Trump's Supreme Court Nominee: He's Not Obama's Nominee

James Lawler Duggan / Reuters

WASHINGTON — Monday's confirmation hearing for Judge Neil Gorsuch, President Trump's nominee for the US Supreme Court, was in large part about a judge who wasn't even in the room: Judge Merrick Garland, President Obama's blocked Supreme Court nominee.

One after another, Democratic senators used the first day of Gorsuch's confirmation hearing to blast Republicans for refusing to hold a hearing, let alone vote, on Garland's nomination last year for the Supreme Court vacancy that Gorsuch is now poised to fill. Gorsuch sat and listened, mostly in silence, for more than four hours as Democrats repeatedly talked about the other judge they wished were there instead.

"I just want to say I am deeply disappointed that it's under these circumstances that we begin our hearings," Senate Judiciary Committee Ranking Member Dianne Feinstein said in her opening remarks on Monday.

Vermont Sen. Patrick Leahy — the ranking Democrat when Garland was nominated — used his opening statement to call the Republican obstruction of Garland's nomination one of the "greatest stains" in the judiciary committee's more than 200-year history.

Minnesota Sen. Al Franken said Senate Republicans' refusal to hold a hearing on Garland was a "truly historic dereliction of duty." Rhode Island Sen. Sheldon Whitehouse took a jab directly at Gorsuch, saying that Garland was "even more qualified than you, and that's saying something."

Monday's hearing was devoted to opening statements from the 20 members of the Senate Judiciary Committee. Gorsuch will answer questions starting on Tuesday. He did give prepared opening remarks at the end of the hearing, saying that in his decade on the bench he'd tried to treat everyone who came before him "fairly and with respect."

Obama in March 2016 nominated Garland — a judge on the US Court of Appeals for the DC Circuit since 1997 — for the Supreme Court a month after Justice Antonin Scalia died. Even before Obama announced Garland as his nominee, Republicans in the Senate, who held the majority, said that they would not act on the nomination, citing the fact that it was a presidential election year.

Democrats on Monday shied away from attacking Gorsuch's credentials — he's a Harvard Law School graduate with a doctorate in legal philosophy who has served on the Tenth Circuit in Denver since 2006.

Beyond attacking the treatment of the nominee who came before Gorsuch, Democrats' opening statements focused on the parts of Gorsuch's record that they said were concerning, such as his writings questioning how much deference federal agencies get in court — get ready for questions on Tuesday about a Supreme Court case known as Chevron. Some also questioned his embrace of an approach to judicial decisionmaking known as textualism, which focuses on the words of a law under review — to the exclusion of legislative history or other factors.

Hawaii Sen. Mazie Hirono delivered some of the sharpest criticism of the day, saying that in reviewing Gorsuch's opinions, "I have not seen that the rights of minorities are a priority for you." Hirono said that the hearing over Gorsuch's nomination was about "people in this country who are getting screwed every single stinking minute and hour of the day."

Connecticut Sen. Richard Blumenthal said that in light of Trump's attacks on the judiciary in recent weeks, Gorsuch had a "special responsibility" to defend the courts' independence at his hearing.

"It isn't enough to do it in the privacy of my office, or my colleagues', behind closed doors. I believe that our system really requires and demands that you do it publicly and explicitly and directly," Blumenthal said, recalling his earlier mention of comments Gorsuch had made to him about attacks on the judiciary.

With Republicans in control of the Senate, Democrats don't have the votes to block Gorsuch if the committee splits along party lines. Democrats could try to filibuster Gorsuch, which — if they succeed — would force Republicans to decide whether to alter Senate rules to defeat that effort and put Gorsuch on the bench.

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DC's Rep Makes A Plea To Trump To Consult Her About Federal Court Nominees

Aaron P. Bernstein / Getty Images

WASHINGTON — Rep. Eleanor Holmes Norton of the District of Columbia isn't a US senator, but she's hoping President Trump will still come to her for advice about nominees for the city's federal courts and law enforcement agencies.

If history is a guide, though, her role under the new Republican administration will be limited at best.

Norton — the District's lone seated representative in Congress — sent a letter last week to Trump asking him to at least consult her about his nominees for federal posts in the District, even if he doesn't grant her the same level of senatorial courtesy to recommend nominees that she was given by Democratic presidents.

"I believe that both D.C. residents and the nomination process would be well-served by consultation with the only congressional representative in either chamber," Norton wrote. "On behalf of more than 670,000 American citizens who live in the District, I urge you to consider providing me a role in the nomination process."

Presidents typically defer to the home state senators of a particular federal district court to recommend judicial nominees. The White House relies less on home state senators in choosing nominees for federal appeals courts, but those senators can still hold up nominees they don't like through Senate procedure.

The District doesn't have a senator. It has two shadow senators, but they're not officially seated in the US Senate the way that Norton is in the US House of Representatives. Under Democratic presidents, Norton was granted senatorial courtesy to recommend nominees for judgeships, US attorney, and other federal posts. She set up a commission of lawyers to vet applicants, and she would then make recommendations to the president.

The nine judges confirmed to the US District Court for the District of Columbia during the Obama administration were all recommended by Norton. One of those judges, Robert Wilkins, was later elevated to the US Court of Appeals for the DC Circuit.

Under President George W. Bush, Norton wrote in the letter that she wasn't given such broad deference as under presidents Obama and Clinton, but that Bush's White House counsel would still ask for her opinion about whomever the president intended to nominate.

"I request that your administration provide me with at least a consultative role similar to that provided by the Bush administration," Norton wrote. She didn't specify how President George H. W. Bush handled DC nominations, and a spokesperson for her office wasn't immediately available for comment; Norton was first elected to the House in 1991.

Trump hasn't said yet what he plans to do when it comes to DC nominees. A White House spokesperson did not return a request for comment.

Besides federal judges and US attorney, the president also nominates the director of the District's Court Services and Offender Supervision Agency, the US Parole Commission commissioners, and US Marshal for the DC Superior Court, the city's local trial court.

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A Federal Judge Offers A Behind-The-Bench Look At Trump's First Supreme Court Nominee

Brendan Smialowski / AFP / Getty Images

WASHINGTON — Federal judges are normally press shy, but a longtime colleague of US Supreme Court nominee Judge Neil Gorsuch spoke up this past week to defend his record.

Judge Harris Hartz has served on the US Court of Appeals for the Tenth Circuit in Denver since 2001. He's been there since Gorsuch joined the court in 2006 — both were nominated for that job by President George W. Bush. Hartz agreed to speak with BuzzFeed News by phone to share a behind-the-bench perspective on President Trump’s first high court nominee.

Hartz disputed criticism from liberal advocacy groups and Democrats in Congress that Gorsuch’s conservative approach to judicial decision-making means he is bad news for women, people of color, the LGBT community, and the environment, among others.

"He’s conservative in the sense that he takes the language of statutes, for example, very seriously. But if by that you mean you always get a conservative outcome, that’s wrong," Hartz said.

Gorsuch’s confirmation hearing before the Senate Judiciary Committee is scheduled to start on Monday. Democrats and outside advocacy groups — still stinging from Republican obstruction last year of Obama’s Supreme Court nominee, Judge Merrick Garland — have highlighted opinions that Gorsuch wrote or joined as raising concerns about how he would think about and vote on key issues. Senate Judiciary Committee Ranking Member Dianne Feinstein’s office released a statement on Friday saying that Gorsuch’s record had the “classic hallmarks of an activist, extremist judge.”

Judge Harris Hartz

US Court of Appeals for the Tenth Circuit

Hartz pointed to a child pornography prosecution the two judges heard in 2015 to illustrate the problems he saw with using past cases to ascribe a broader agenda to Gorsuch. The fact that Gorsuch ruled a certain way in a particular case doesn't mean he is predisposed to rule for or against certain people, Hartz said. The legal questions before the court may demand an outcome that is separate from the underlying issue, he said.

The defendant in the child pornography case was challenging the legality of a search of his email by the congressionally-established National Center
for Missing and Exploited Children. A lower court had rejected the challenge, but Gorsuch wrote an opinion several months later reviving the case.

"Now to say that that means he favors child pornography would be outrageous," said Hartz, who joined Gorsuch’s opinion, as did the third judge on the appeals panel. "He doesn’t. I know I don’t, and I joined the opinion. When you look at the case, you have to see what the issue is."

Hartz said that Gorsuch is hard working — judges judge each other on whether they can keep up with their caseload, and Gorsuch (who regularly uses a standing desk) never had a problem with that, Hartz said — and a strong writer who can explain complex legal issues in a way that the general public can understand. He noted that Gorsuch also is polite, even when he disagrees with another judge.

"The more prominent people we have who engage in civil discourse, polite discourse, the better. I think it raises the level of discussion, and I think that’s very valuable," Hartz said.

Gorsuch is a good listener, Hartz said, but can also be persuasive.

The week before Trump announced Gorsuch as his nominee, Hartz said he was in a meeting with Gorsuch discussing arguments they'd heard. Gorsuch expressed an opinion that Hartz disagreed with.

"I said, ‘For these reasons we need to go the other way.’ And he said, ‘You know that’s a good point, I agree, but I wouldn’t go that far for this reason,’ and he changed my mind on that," Hartz said. "That’s exactly what you want in a colleague, someone who’s willing to change his or her mind and capable of changing your mind."

Hartz said Gorsuch has a good relationship with the other circuit judges. A majority of the 12 active judges on the Tenth Circuit were nominated by a Democratic president; Hartz and Gorsuch, on the other hand, were among the 5 judges on the court nominated by Republican presidents. In remarks at the White House after Trump announced his nomination on Jan. 31, Gorsuch said that “the men and women I’ve worked with at every level in our circuit are an inspiration to me.”

Gorsuch has been spending a lot of time in Washington in the weeks since his nomination, meeting with senators and preparing for his confirmation hearing. He isn't handling any cases while his nomination is pending.

Hartz said that after the nomination was announced, Gorsuch sent an email to his colleagues on the court thanking them for their support — and apologizing for adding to their workload while he was out.

This week will be the time for Gorsuch to make his case to the Senate Judiciary Committee for his nomination — and he’s likely to face questions from Democrats about his significant decisions as a circuit court judge, opinions that Hartz discussed with BuzzFeed News.

Excessive force

Toby Talbot / AP

One of the cases Gorsuch's critics point to is Wilson v. City of Lafayette, in which Gorsuch wrote an opinion in 2013 finding that a police officer who fired a taser at a man who later died was entitled to immunity against an excessive force claim. Gorsuch found that there were enough facts supporting the officer's argument that he was justified in firing the taser. One of Gorsuch's colleagues dissented.

The liberal group People for the American Way cited the Wilson case as an example of Gorsuch's decisions harming "real people." Hartz said that the public can easily misunderstand decisions about immunity in excessive force cases, and that the Supreme Court has set the bar high for plaintiffs to sue police for their actions on the job.

"Those are tough. It’s one thing to say that what the police did, you think is wrong. It's another to say that the law was clearly established” that a reasonable officer would know that his or her conduct was unlawful, Hartz said. “The Supreme Court has been, with large majorities, telling us that you’ve really got to be clearly established before you sue the officer."

Contraception care

Ed Andrieski / AP

Gorsuch twice sided with challengers to the contraception care mandate of the Affordable Care Act. In 2013, a majority of the full Tenth Circuit found that two companies run by Christian owners — Hobby Lobby and Mardel — were likely to succeed on claims that the mandate violated the federal Religious Freedom Restoration Act. Gorsuch joined the majority opinion, and wrote in a separate concurrence that he also would find that the owners individually had standing to sue.

Two years later, in a case known as Little Sisters of the Poor, the contraception care mandate was again before the Tenth Circuit, this time on religious nonprofits' objections to complying with the law and the process for opting out of the coverage requirement. A majority of the full court voted not to reconsider a three-judge panel's decision rejecting the challenge. Hartz wrote a dissent of that vote, which Gorsuch joined.

Critics point to Gorsuch's position in these two cases as evidence that he would favor granting more rights to corporations, and that he could be a threat to Roe v. Wade and more broadly to women's rights.

Hartz said it was unfair to read an anti-woman agenda into Gorsuch's actions. In Hobby Lobby, Gorsuch's concurrence wasn't about women's rights, Hartz said, but rather about whether the stores' owners had standing to sue.

"I don't think it had anything to do with women's rights. Who had standing — that's what he talked about," Hartz said.

In Little Sisters of the Poor, Hartz said that the question of whether the nonprofits had made out a religious discrimination claim was separate from any debate about contraceptive care.

"I would hate to see my opinion as being used as evidence of an anti-female view of Gorsuch. It just isn’t. I don’t think an honest reading of that opinion would lead to that conclusion," Hartz said.

The administrative state

Josh Wood / AP

Some of Gorsuch's written opinions question the high level of deference that courts give to administrative agencies. That has Democrats nervous that Gorsuch would support a scaling back of administrative power, making it harder for agencies such as the Environmental Protection Agency to defend against industry challenges to regulation.

Hartz said that he was on panels in several cases with Gorsuch that involved abuses of power by agencies, which could color a judge's thinking about how much deference the government should get in court.

"One thing I can say with confidence is it’s a principled position. He’s not going to say, ‘Oh, this agency that I like can do whatever it wants and an agency that I don’t like is going to be reined in.’ That's just not the way he approaches the law," Hartz said.

Hartz said that a common theme of Gorsuch's decisions over the years was an aversion of abuses of power.

"That may be by law enforcement, that may be government agencies, by judges, by an employer, it may be by a lawyer. He respects limits on power. His opinions at least, the ones he joins, reflect that," Hartz said.

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