Katsas Seen Bringing Conservative Bent to DC Circuit Without Reshaping It, for Now
Gregory Katsas is expected to bring his conservative philosophy to the U.S. Court of Appeals for the D.C. Circuit. If confirmed by the Senate (see the personals section of the Sept. 11 issue of this publication), President Donald Trump's nominee isn't expected to change the leanings of the D.C. Circuit -- which hears many FCC cases -- absent future Republican appointments, said attorneys, who gave him high marks. He would replace Judge Janice Rogers Brown, who was picked by President George W. Bush; in July, the court announced she was retiring Aug. 31.
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“It’s hard to predict any daylight between a Judge Katsas and Judge Rogers Brown on any particular FCC issue," said Davis Wright attorney Peter Karanjia, a former deputy general counsel at the commission. "It's "one conservative Republican replacing another conservative Republican," said a former FCC general counsel.
Katsas would restore the 7-4 split between Republican and Democratic appointees among D.C. Circuit active judges that existed before Rogers Brown left, emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. There are also Republican-appointed and one Democratic-appointed senior judges, but they "have a much smaller case load" and generally don’t review en banc petitions for rehearing three-judge panel rulings, Schwartzman said.
Katsas has extensive legal experience, currently as Trump's deputy counsel. He previously was a civil and appellate litigator at Jones Day, and has argued more than 75 appeals, including at the Supreme Court and in every federal appeals court, said the White House announcement Thursday. He held senior DOJ positions from 2001 to 2009, including as assistant attorney general for the civil division and acting associate AG. Earlier, he clerked for Justice Clarence Thomas at the Supreme Court and at the D.C. Circuit, and for Third Circuit Judge Edward Becker.
Conservative groups and commenters appear enthusiastic. The Judicial Crisis Network set up a website backing Katsas' confirmation that listed career highlights and supporting statements. "This is a home run for the president," wrote Shannen Coffin, a National Review contributing editor, who said Katsas understands the court's role is "to decide cases, not to dictate policy" and would be a "welcome addition to a court that was packed" with "liberal jurists" by President Barack Obama.
Attorneys who know Katsas praised him. "We both clerked for Justice Thomas," emailed Gibson Dunn appellate lawyer Helgi Walker. She called Katsas "one of the smartest, kindest and most honorable lawyers that I know" and said he "will be a great boon" for the court. Katsas "is a great lawyer and a thoughtful guy," said Jenner & Block's Sam Feder, who worked with Katsas when the former was FCC general counsel and the latter was at DOJ.
Those who didn't know Katsas also were impressed. "It would be hard to argue he's not very well qualified," emailed Free State Foundation President Randolph May. "It’s reasonable to assume -- but not to bet your house -- that, if confirmed, he would fit into the mold of D.C. Circuit Judges Brett Kavanaugh, Ray Randolph, David Sentelle, and Janice Rogers Brown in terms of his judicial perspective." May hopes Katsas "shares Justice Thomas’s skepticism concerning the constitutional concerns implicated by Chevron deference, at least in its strong forms." The D.C. Circuit often cites Chevron when it upholds FCC decisions, including its 2015 net neutrality and broadband reclassification order.
Look to Democratic Sens. Mark Warner and Tim Kaine of Virginia for an indication of the nominee's confirmation prospects, said Stuart Brotman, University of Tennessee media management and law professor. The "blue-slip process," in which home-state senators can opine on a nominee, is "being used to slow down or even defeat" judicial nominations to other circuits, Brotman said: "This will be a good way to see if there are any partisan red flags that might be raised." The senators' offices didn't comment Tuesday. NPR reported in July that a Katsas nomination could face controversy due to his legal work for the president.