Senate Confirms Katsas to DC Circuit

WASHINGTON (CN) – The Senate confirmed a White House lawyer to a seat on the D.C. Circuit court Tuesday evening, despite objections from Democrats who claim he will not be independent from the president who nominated him.

Gregory Katsas currently serves as deputy White House counsel and told the Senate Judiciary Committee he advised on a number of President Donald Trump’s most controversial policies, including a version of the ban on immigration from several Muslim-majority countries and the prohibition on transgender people serving in the military.

Katsas also said he advised on the decision to end the Deferred Action for Childhood Arrivals program – known as DACA – which provides protections for immigrants who were brought to the U.S. as children who are now here illegally.  He would not, however, delve into what advice he gave Trump on Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election.

“I am not a part of the investigation, but to the extent I could say things that reveal what legal issues the special counsel may be looking at, I don’t think I can properly talk about issues that could signal what he is looking at, the scope, the focus, the progress of his investigation,” Katsas said at his nomination hearing last month. “And I want to be very careful not to say anything that inadvertently undermines his work.”

Katsas also said he worked on Trump’s executive order creating the Commission on Election Integrity and promised Sen. Dianne Feinstein, D-Calif., he would recuse himself from any of the pending challenges to the order that might work their way up to the D.C. Circuit.

A member of the conservative legal advocacy group the Federalist Society since 1989, Katsas narrowly passed through the Senate with a 50-48 vote on Tuesday. Sen. Joe Manchin, D-W.Va., broke with Democrats in voting for Katsas, while Sen. John Kennedy, R-La., voted against the nomination.

Katsas, a former clerk for conservative legal icon Justice Clarence Thomas, worked at the Bush Justice Department from 2001 to 2009, eventually rising to the role of assistant attorney general for the department’s Civil Division. Katsas received the Justice Department’s highest award for his work in 2009 and Supreme Court Chief Justice John Roberts selected him to serve on the Advisory Committee for Appellate Rules in 2013.

After leaving government, Katsas returned to the Washington firm Jones Day, where he worked as partner before joining the Trump administration.

All of Katsas’ former roles gave Democrats issues to mine, but his service in the Trump administration drew the most concern, as they questioned whether he could serve independently on a federal appeals court that often hears challenges to presidential policies.

“His tenure in the Trump administration raises important questions about his independence and moderation as a judge, particularly on a court that will likely hear cases related to the very same issues he worked on at the White House,” Senate Minority Leader Chuck Schumer, D-N.Y., said on the Senate floor Tuesday.

During Katsas’ nomination process, Feinstein pushed him on multiple comments he made regarding the treatment of people detained as enemy combatants at Guantanamo Bay. In written questions submitted to Katsas after his nomination hearing, Feinstein demanded an explanation for an April 2009 speech he gave at Amherst College in which he said “a lot of coercive interrog[ation]” techniques do not constitute torture.

Katsas explained in a written response that he was referring to methods like serving detainees “MRE” (meals ready to eat), the pre-packaged meals served to military members, or using sleep “adjustment” techniques – commonly understood as sleep disruption or deprivation.

During his time out of government, Katsas also worked on the legal team that challenged the constitutionality of the Patient Protection and Affordable Care Act. Katsas criticized the court’s decision in NFIB v. Sebelius, which upheld the federal health care law, but would not commit to recusing himself from any further challenge to the law that might come before him on the D.C. Circuit.   

 

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