President Donald Trump’s latest list of nominees to the federal bench could indicate a greater emphasis on qualifications and filling vacancies in blue states, scholars told Bloomberg Law.
The nominees, especially at the appellate level, “look well qualified” and seem “fairly traditional,” Carl W. Tobias, a professor at the University of Richmond School of Law, Va., who focuses on judicial nominations, told Bloomberg Law by telephone Feb. 12.
“I would say this is a solid group of nominees” who “have, for the most part, significant experience with the law and are especially distinguished by their clerkships and other activities demonstrating the hard-core conservative views that are also important to the administration,” 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.
Though two of the nominees are women, the group continues the trend of candidates who have a “relative lack of diversity,” Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst told Bloomberg Law by email.
In “terms of women appointees the record may be even worse than” former President George W. Bush’s, “although it is too soon to make such a definitive judgment,” he said.
Trump announced four federal appellate court nominations and five at the district court level in a press release Feb. 12.
The appellate nominees are:
- Mark J. Bennett, who was nominated to the U.S. Court of Appeals for the Ninth Circuit, is a director at the law firm of Starn O’Toole Marcus & Fisher, Honolulu, and was Hawai’i’s attorney general for almost eight years;
- Andrew S. Oldham, who was nominated to the Fifth Circuit, is currently the general counsel to Texas Gov. Greg Abbott (R) and clerked for U.S. Supreme Court Justice Samuel A. Alito Jr. and District of Columbia Circuit Judge David B. Sentelle;
- Michael Y. Scudder Jr., who was nominated to the Seventh Circuit, is a partner at Skadden, Arps, Slate, Meagher & Flom LLP, Chicago; and
- District Judge Amy J. St. Eve, who was nominated to the Seventh Circuit, has been a judge for the U.S. District Court for the Northern District of Illinois since 2002.
They seem to “survive the red face test” based on a simple look at their resumes, but it’s possible that there are red flags that haven’t yet appeared, Charles Gardner Geyh, a professor at Indiana University law school, Bloomington, Ind., who writes about the judiciary, told Bloomberg Law by telephone.
We may not find out whether they are “ideological zealots” or have experienced disciplinary actions against them until the American Bar Association conducts its ratings process, Geyh said.
Though the latest nominees “seem to have excellent credentials,” the Trump administration’s decision not to participate in the ABA’s pre-nomination evaluation process deprives it of “another and important layer of professional vetting,” Goldman, author of “Picking Federal Judges,” said.
“It will be of interest and importance to see what ABA ratings this latest group of nominees will earn,” he said.
Change of Course?
The nominations could show that the Trump administration is placing a greater emphasis on qualifications than it did with previous nominees who failed due to a lack of experience, Geyh said.
Trump has an “anti-elitist” philosophy that can lead to nominees who lack traditional qualifications, Geyh said.
“Maybe this is what we will see in the future—more mainstream candidates,” he said.
“Presumably the White House Counsel’s office and Office of Legal Policy” have “improved their vetting processes to avoid embarrassments such as occurred” last year, Goldman said.
Last year, three district court judge nominees withdrew their names after questions arose about qualifications, polarizing statements, or failures to disclose information.
Blue State Vacancies
Tobias said the new list of nominees could indicate another change: a greater focus on filling vacancies in blue states with Democratic senators.
The list includes nominees from three blue states that each have two democratic senators: Illinois, Minnesota, and Hawai’i.
“That’s some progress,” Tobias, who has criticized the administration for not focusing more on filling blue state vacancies, said.
The Trump administration “may have learned its lesson that Democratic senators will withhold their blue slips for appeals court nominees from their states unless previously cleared with those senators,” Goldman said.
Senate Judiciary Chairman Chuck Grassley (R-Iowa) held hearings for multiple appellate nominees despite not receiving a blue slip from a home state senator, and said he wasn’t abandoning the tradition.
The nominations of Scudder and St. Eve were made in consultation with Sen. Dick Durbin (D-Ill.), according to the Chicago Sun Times.
The nominations show that the “Trump train, if you will, is chugging along” despite controversies like the ongoing investigation into potential ties between Trump’s presidential campaign and Russia, Tobias said.
The Trump administration “clearly has made filling judgeships, particularly on the circuit courts, an extremely high priority,” Goldman said.
“Gone are the days when at least a few individuals with non-political backgrounds or even affiliation with the opposition party were appointed to appeals courts,” he said.
The administration is “going full steam ahead” in placing Republicans, typically conservative, on circuit courts, he said.
But the candidates could face a long trip to getting confirmed given the current backlog of nominees and the amount of time required by Senate rules, Tobias said.
There are currently 50 nominations pending for 146 federal judicial vacancies.
Nominations must get through “30 hours of post-debate time” after cloture is invoked, Tobias said.
Senate Majority Leader Mitch McConnell (R-Ky.) isn’t “willing to give up” that much floor time for each nominee right now, and “I don’t think that’s going to change,” Tobias said.
The amount of time it takes to get a nominee confirmed has gone into “hyperdrive” in the last few administrations “on both sides” of the political aisle, Geyh said.
But until it’s clear to Republicans that the Senate will stay in their hands, they have a “real incentive” to push through as many nominees as possible in advance of the 2018 midterm elections, he said.
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