This week Trump judicial nominee Matthew Petersen withdrew his name, amid controversy. It was the third such withdrawal in 10 days. Even so, President Trump’s record on filling judicial vacancies has far outdistanced his predecessors.
Trump, aided by Senate Majority Leader Mitch McConnell, R-Ky., has won confirmation of 12 appeals court nominees. That’s more than any president in his first year, and indeed, more than Presidents Obama and George W. Bush combined.
Part of that success is due to the huge number of judicial vacancies that existed when Trump took office — 122. That staggering number is due to the fact that Republicans, who controlled the Senate in the last two years of the Obama presidency, confirmed only two appeals court judges — a record that dates back to the 1800s.
Appeals court judges are considered particularly important because, although there are fewer of them, they establish legal precedents in the lower courts. Trial court judges, by contrast, preside over criminal and civil trials in the federal courts, and must abide by the precedents that appeals courts establish.
A system gone awry
Democrats in the Senate have been unable to slow down or block judicial nominees at every level, starting with the party-line vote in the spring to abolish the filibuster for Supreme Court nominees, followed by the swift confirmation of Trump nominee Neil Gorsuch to the Supreme Court.
After Gorsuch was confirmed, there still were some steps left for Democrats to use to block Trump’s lower court judges — namely the so-called blue-slip system by which nominees traditionally are not considered unless both home state senators return a blue approval slip.
There have been times in the past when some nominees were moved forward without the blue slips, but they have been relatively rare. Now, however, the system exists mainly in name only. It has become like Swiss cheese, as much holes as cheese. And senators, particularly Democratic senators, are often not consulted about judicial nominations.
Other checks have gone by the wayside too.
While the Obama administration sent all its potential nominees to the American Bar Association for rating as to qualifications, the Trump administration has refused to do that prior to nomination. And at the Senate Judiciary Committee, where traditionally appeals court nominees were considered on their own at a hearing, they now are routinely considered with several other judicial nominees, and senators have to pick and choose who they will question in the five or ten minutes allotted.
The result is that the vetting process at both ends of Pennsylvania Avenue has become, as one Senate aide put it, an accident waiting to happen.
And happen it did this month with three nominees for the federal trial courts.
Petersen, this week’s casualty, had no experience as a trial lawyer. He served on the Federal Election Commission with White House Counsel Don McGahn where the two were considered allies. He withdrew after a video of his confirmation performance went viral.
Questioned by Sen. John Kennedy, R-La., Petersen conceded that he had never tried a case in federal or state court, and that he had never taken a deposition on his own. As the agonizingly painful exchange continued, Petersen was unable to answer even the most basic of questions about the rules of evidence for trials.
Petersen — seeing the handwriting on the wall — withdrew.
It took longer for the handwriting to become clear for Brett Talley, a 36-year-old Justice Department official, ghost hunter and believer in the paranormal.
He was approved by the Judiciary Committee on a party-line vote in November, despite a rare and unanimous unqualified rating by the American Bar Association. But as his nomination sat waiting for a vote by the full Senate, news organizations reported that he had failed to disclose key information required for all nominees on his Senate questionnaire. Specifically, he failed to disclose thousands of controversial blog posts under a pseudonym, including one supporting the early Ku Klux Klan, and failed to disclose that he is married to the chief of staff for White House counsel McGahn.
Finally, there was Jeffrey Mateer, an outspoken supporter of religious liberty, nominated with the strong support of his home state senator, Ted Cruz of Texas. Shortly after the nomination was announced, gay rights groups called attention to frequent comments Mateer had made calling same-sex marriage “disgusting” and likening it to polygamy and bestiality. Speaking about a lawsuit brought by a transgender student, Mateer, said “it just shows you how Satan’s plan is working and the destruction that is going on.”
The three nominees who have withdrawn are not the only ones who could have problems. Damien Schiff, nominated for the Court of Federal Claims, wrote a blog post that called Supreme Court Justice Anthony Kennedy a “judicial prostitute.” Another, Thomas Farr, has been accused of lying about his role in suppressing the black vote in North Carolina. Both have been approved by the Senate Judiciary Committee, and are awaiting confirmation.
But others have sailed through quickly with GOP support. To cite just one example, John Bush, a prominent Republican lawyer was confirmed in June for a seat on the U.S. Court of Appeals for the Sixth Circuit despite some 400 often intemperate and very political blog posts under a fake name — posts that linked to so-called alt-right reports containing conspiracy theories and false information, such as the discredited claim that former President Obama was not born in the United States.
Pressed at his confirmation hearing by Sen. Dianne Feinstein, D-Calif., Bush said he regretted having equated the Supreme Court’s 1857 decision upholding slavery with the court’s 1973 Roe v. Wade abortion decision, and he maintained that he would have no difficulty following the Roe ruling.
The breakneck speed of nominations and confirmations makes it sometimes look as though the Senate “will confirm anyone who has a temperature of 98.6,” observes Russell Wheeler, a Brookings Institution scholar who studies the judicial appointment process. He thinks that the Trump nominees may be “more uniformly conservative” than nominees in previous Republican administrations because Trump has given “freer rein to the [conservative] Federalist Society.”
While most Americans don’t pay much attention to nominations to the federal courts, Wheeler notes that “a strong part of the Republican Party base, more so than the Democratic base, are tuned into judges.” There is “a small group of people for whom this means an awful lot,” he observes.
Trump promised that part of the GOP during his presidential campaign that he would appoint judges they like. Now he is aggressively seeking to carry out that promise and remake the face of the federal judiciary.