Outlook 2018: Federal Judicial Nominations Full-Speed Ahead

• Fear of Republicans losing Senate will likely speed nomination process

• 75 “emergency” vacancies exist

The fast pace at which President Donald Trump’s judicial nominees are being confirmed is likely to continue despite a few failed nominations, scholars told Bloomberg Law.

“Republicans will go full speed ahead to confirm” nominees, “and I believe there will be urgency,” particularly “if it looks like the Senate will change hands,” Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst told Bloomberg Law by email.

Trump’s nominations “will have a substantial effect on the future of statutory construction, criminal procedure, and the relationship between federal and state power,” Michael J. Gerhardt, a professor at the University of North Carolina School of Law, Chapel Hill, N.C., who has written about judicial nominations, told Bloomberg Law by email.

There will likely be “a race to fill as many vacancies as possible in advance of” the midterm elections, Charles Gardner Geyh, a professor at Indiana University law school, Bloomington, Ind., told Bloomberg Law by email.

Democrat Doug Jones’s unexpected win in Alabama increases the chances that the Democrats will flip control of the Senate in the midterm elections. Still, Senate Democrats and allied independents face a punishing electoral map in the fall and will be defending 25 seats in November.

Despite Republican concerns over midterms, the pace of confirmations could still be “tempered by increasing Republican discomfiture with the president” over the qualifications of some nominees, Geyh said.

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) should “slow down” the fast pace at which the Senate considers nominees, Carl W. Tobias, a professor at the University of Richmond School of Law, Richmond, Va., told Bloomberg Law by telephone.

Controversies involving withdrawn nominees are partly fallout from Grassley moving them too quickly, though he deserves credit for pushing back against two of the withdrawn nominations—Brett Talley and Jeff Mateer, Tobias said.

“I hope both the White House” and the committee “do better vetting” in 2018, Tobias said.

The administration also needs to prioritize filling the 75 vacancies that the Administrative Office of the U.S. Courts considers to be “judicial emergencies,” which it has failed to do so far, Tobias said.

Record-Setting Pace

Twelve of Trump’s circuit nominees were confirmed in 2017, setting a record for a president in the first year of his term.

The speed of those confirmations “is quite notable, particularly given the general slowness of the nomination and confirmation process for executive branch positions,” Jonathan H. Adler, a professor at Case Western Reserve University School of Law, Cleveland, told Bloomberg Law by email.

The Trump administration “has clearly made this a priority,” Adler, who has written about the confirmation process, said.

“Contrary to what I (and others) expected, this White House has made truly excellent appellate nominees who are likely to have a broad influence on the courts, as quite a few of these nominees are likely to become thought leaders on their respective courts,” Adler said.

“It’s probably his foremost achievement so far,” Tobias said.

The candidates “have generally been very well qualified and ideologically conservative, so he’s keeping his campaign promise” concerning nominees, Tobias said.

Republicans have been able to move quickly because their “pattern of obstruction and delay, so evident in the last two years” of Barack Obama’s presidency, and the 60-vote requirement to break a filibuster of a judicial nominee is no longer an obstacle now that they control the Senate, Goldman said.

“For years, Republicans have cared a lot more about judicial nominations” than Democrats, Gerhardt said.

Now “is a good opportunity” for Democrats “to reconsider what they stand for when it comes to judicial nominations,” Gerhardt said.

Petersen Effect?

Despite the success of Trump’s appellate nominations, three district court nominations have been failures.

Those nominees—Talley, Mateer, and Matthew Petersen—were withdrawn after they were criticized for lacking experience, failing to disclose information to the Senate Judiciary Committee, or making polarizing statements.

Photographer: Zach Gibson/Bloomberg

The failed nominations raise a question about how many other nominees the Senate Judiciary Committee lacks full information about, Tobias said.

The nomination of Petersen, who failed to answer questions about the law from Sen. John Kennedy (R-La.), showed “open indifference to the traditional competence norms that have served as a baseline in the confirmation process,” Geyh said.

The Petersen controversy may be “the turning point in how the Senate Judiciary Committee will handle the Trump nominations,” Goldman said.

“The key to change is the Senate Republican leadership putting” it’s “foot down collectively and saying ‘enough’ to nominees who have been nominated without regard to relevant training and experience,” Geyh said.

There are “plenty of capable qualified conservatives out there, and if the Senate insists that the pool be limited to” such nominees, “the president will have no choice but to follow,” Geyh said.

ABA Omitted

Adler said he didn’t think the Petersen controversy, “which may have involved a failure of hearing preparation as much as any failure of vetting,” suggests “any larger problem with the process.”

The American Bar Association rated Petersen as “qualified,” Adler noted.

Despite the ABA’s rating, the nomination shows the perils of the Trump administration’s decision not to participate in the association’s pre-nomination evaluation process, Goldman said.

The ABA rated Petersen “after the formal nomination,” Goldman said.

It’s possible that a pre-nomination “report would have alerted the White House that Petersen was vulnerable to questions about his preparation for the judgeship,” Goldman said.

“It is in no one’s interest for a poorly qualified individual to take the bench,” Goldman said.

Judicial Emergencies

There are now 75 vacancies classified as “judicial emergencies” by the Administrative Office of the U.S. Courts.

“There needs to be some prioritization” by the Trump administration “in terms of emergencies,” Tobias said.

About 60 emergency vacancies are at the district court level.

District court emergencies are classified by comparing the number of filings to the number of judges in a district. They include courts with more than one judgeship authorized, but only one active judge.

“I can’t remember any time when there were 75” emergency vacancies, Tobias said.

There were only 12 when Republicans took control of the Senate under Obama, he said.

There are now 124 district court vacancies, including non-emergencies.

That’s “just incredible,” Tobias said. Most of the vacancies are in blue states that have Democratic senators, he said.

That could indicate that the Trump administration is taking the “path of least resistance” by focusing on vacancies in states with Republican senators, he said.

That approach “discriminates in a very serious way” against people in blue states “because they don’t get their day in court,” he said.

It “takes five years to get a civil trial” in Buffalo, N.Y., for example, “and there are plenty of other districts that are similar,” he said.

“Republicans should remember, what goes around, comes around,” Goldman said.

Cautious Optimism

A set of 10 judicial nominees announced Dec. 20 could indicate a move “in the right direction,” Tobias said.

Five of the nominees are state court judges or federal magistrate judges, and four have worked as federal prosecutors.

They appear qualified, look more like “mainstream nominees,” and include some renominees who were nominated by Obama and have “already been through the process” before, Tobias said.

That “makes me cautiously optimistic” that the Trump administration will “be more careful” in choosing and vetting nominees, he said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com