How the Trump White House and GOP senators fast-track judicial nominees

Under normal circumstances, confirmation hearings for district court judges aren't headline grabbers.But overn...

Posted: Dec 17, 2017 7:08 AM
Updated: Dec 17, 2017 7:08 AM

Under normal circumstances, confirmation hearings for district court judges aren't headline grabbers.

But overnight, an exchange between a nominee and a senator on the Judiciary Committee caught fire on Twitter.

It depicted Sen. John Kennedy, R-Louisiana, asking Matthew S. Petersen, a commissioner for the FEC, who is up for a seat on US District Court for the District of Columbia, some basic legal questions.

Petersen stumbled badly.

But Kennedy's final question was a clincher: Have you ever supported the KKK?

That question was not directed at Petersen. It was directly squarely at Chuck Grassley, the chair of the Senate Judiciary Committee, and the White House, because earlier this week a different nominee, Brett Talley, had to withdraw in part because of such blogging.

The Talley and Petersen nominations highlight clear missteps on the part of Republicans who have put forth nominees that may be unripe for the judiciary.

The frenetic push for new nominees on the part of the White House, the Senate leadership, home-state senators and outside groups has delivered some who could have benefitted from a more careful vet.-Indeed, Grassley asked the White House to reconsider Talley and nominee-Jeff Mateer earlier this week.

But while it's lost the battle on some nominees, the White House is winning the overall war when it comes to reshaping the judiciary. The Senate has confirmed 12 appeals court judges in Trump's first year, a modern record for the number of appeals court judges approved.

White House Counsel Don McGahn has made it a priority, as has Senate Majority Leader Mitch McConnell. Grassley has gaveled in the hearings and infuriated Democrats by holding hearings with multiple nominees.-And the conservative Federalist Society has suggested and vetted nominees, as well as rallied the judicial conservative base to change the status quo.

"The Senate made history 2day by confirming the 12th Circuit judge this year," Grassley crowed in a tweet on Thursday, "the MOST in the 1st yr of any president in the 228 yr history of our country."

Where are the nominees coming from?

For appeals court seats, the Trump administration has been seeking tested ideologically conservative lawyers, professors and lower court judges,

Many of his district court choices have been conservatives, to be sure, but appear to have been tapped also because of partisan interests. Talley, for instance, failed to mention in his Senate Questionnaire that his wife is a top aide to McGahn in the White House.

Trump made judges a focus of his campaign. He did something no other presidential candidate has ever done: He released a list of potential Supreme Court nominees. Once Trump became President, he wasted no time in drawing from that list and nominating Justice Neil Gorsuch with the blessing of the family of the late Justice Antonin Scalia, a conservative icon. And only last month the President released an updated list of potential nominees, even though there is no current vacancy. That list was unveiled as McGahn gave a rare, and rousing, speech at the Federalist Society.

But traditionally, home-state senators play a leading role in district court choices. At a hearing last month Kennedy suggested the White House was using strong arm tactics to push its own candidates onto some unwilling home state senators.

Kennedy said the first he learned of the nomination of Kyle Duncan for the 5th US Circuit Court of Appeals was in a "series of phone calls" from McGhan.

"Mr. McGahn was very firm that Mr. Duncan would be the nominee -- to the point that he was on the scarce side -- in one conversation -- of being polite," Kennedy said at the hearing.

Kennedy went on to propose a hypothetical situation to the nominees before him. "Let's suppose you were a United States senator and you were sitting on the Judiciary Committee. And a very prominent attorney in this town suggested to you that if you didn't vote the way this particular attorney wanted you to vote, that you would be punished politically," he said.

Kennedy has said he will vote for Duncan when he comes up for a Judiciary Committee vote.

ABA ratings

Adding to questions about nominees is poor ratings of some picks from the American Bar Association.

Trump's choices have drawn more "not qualified" ratings from the ABA than appointees of past presidents. Four judicial nominees so far, a full 8 percent of his candidates, have been rated not-qualified, compared with either 1% or 0%, back to the early 1960s. Petersen was rated "qualified."

The ABA has provided what it regards as nonpartisan evaluations of judicial candidates since the 1950s. For most presidents, the reviews have been conducted pre-nomination. The Trump administration notified the ABA earlier this year that it would not be following that practice, and there have been conservative complaints about the fairness of ABA reviews.

Petersen nomination

Petersen received his law degree from University of Virginia law school. He has been a FEC commissioner since 2008. In his Senate questionnaire, he said he was approached by the White House counsel's office on May 20 about appointment to the DC district court.

Before President George W. Bush appointed him to the FEC, Petersen was a chief counsel to Republican senators on the Senate Committee on Rules and Administration. He worked earlier on the House of Representatives' Committee on House Administration. Before his service on Capitol Hill, he was at the Washington, DC, law firm of Wiley Rein, specializing in campaign finance and election litigation.

At the FEC, he closely aligned with then-chairman McGahn, including as they pushed the full commission to revise its rules after the Supreme Court's 2010 Citizens United decision restricting the FEC from regulating corporations' political expenditures in elections.

Hogan Gidley, a White House spokesman, responded to criticism of Petersen.

"Mr. Petersen has spent nearly a decade as a commissioner of an important federal agency overseeing its litigation on regulatory issues -- the very kinds of issues federal district court in DC decides," Gidley said Friday. "It is no surprise the President's opponents keep trying to distract from the record-setting success the President has had on judicial nominations, which includes a Supreme Court justice lowercase and 12 outstanding circuit judges in his first year."

Other senators have raised a red flag as the administration eschews past norms of judge selection.

Oregon's senators, both Democrats, wrote a letter to McGahn in September lamenting the White House's decision to choose its own candidate for a seat on the 9th US Circuit Court of Appeals -- going around a normal nominating process that incorporated the recommendation of a state bipartisan selection committee.

And after a similar situation for a Wisconsin nominee, that state's Democratic senator, Tammy Baldwin, wrote that she was "extremely troubled."

"President Trump has decided to go it alone and turn his back on a Wisconsin tradition of having a bipartisan process for nominating judges," she wrote in a statement. "I am extremely troubled that the President has taken a partisan approach that disrespects our Wisconsin process."

Democrats can't stop them

The effort hasn't been without drama, especially on the part of Democrats, who charge that Grassley is providing a simple "rubber stamp." But Grassley might contend the system works. He was the one, after all, who pressured the President to withdraw the nominations of Talley and Mateer.

Democrats are doing their best to slow down the process, but without much luck.

It was the influential Sheldon Whitehouse D- Rhode Island, who tweeted out the Petersen video and added the words: "HOO-BOY." But that's about all he can do given the fact that the nominees now get through with a simple majority.

"Republicans have paid a lot more attention to shaping the federal judiciary, moving much more quickly under President Trump than Democrats ever did to confirm their nominees," said Joshua A. Douglas of the University of Kentucky College of Law.

The questions posed to Peterson about the Federal Rules of Civil Procedure or the definition of a "motion in limine" are "pretty basic for any lawyer," Douglas said. "True, his work as an FEC commissioner lowercase may not regularly put him into contact with these aspects of normal litigation practice, but even the FEC is involved in the litigation. He should have done his homework."

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 728811

Reported Deaths: 13405
CountyCasesDeaths
Marion996911740
Lake53548966
Allen40529675
St. Joseph35596550
Hamilton35536408
Elkhart28470441
Tippecanoe22375218
Vanderburgh22293396
Porter18701307
Johnson17923378
Hendricks17199315
Clark12943191
Madison12612339
Vigo12437246
Monroe11873170
LaPorte11856210
Delaware10667186
Howard9895216
Kosciusko9390117
Hancock8260140
Bartholomew8058155
Warrick7777155
Floyd7653178
Wayne7035199
Grant7032174
Boone6687101
Morgan6557139
Dubois6150117
Marshall6016111
Dearborn580077
Cass5794105
Henry5699103
Noble559883
Jackson501172
Shelby490696
Lawrence4522120
Harrison435072
Gibson434792
DeKalb427185
Clinton427053
Montgomery423688
Whitley395239
Huntington390080
Steuben385557
Miami381166
Knox371890
Jasper364747
Putnam359660
Wabash353479
Adams341054
Ripley339170
Jefferson329281
White313554
Daviess296299
Wells291381
Decatur284792
Fayette279562
Greene277885
Posey271333
Scott265653
LaGrange265570
Clay259447
Washington240332
Randolph239781
Spencer232131
Jennings229849
Starke215953
Fountain212046
Sullivan211442
Owen198756
Fulton194840
Jay193630
Carroll188520
Orange182654
Perry182637
Rush173025
Vermillion168843
Franklin167835
Tipton162845
Parke146116
Blackford134632
Pike133734
Pulaski116645
Newton107734
Brown101941
Crawford99514
Benton98514
Martin88615
Warren81815
Switzerland7858
Union71010
Ohio56511
Unassigned0414

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 1082815

Reported Deaths: 19428
CountyCasesDeaths
Franklin1258081400
Cuyahoga1119722115
Hamilton799721205
Montgomery514061014
Summit47145945
Lucas42119788
Butler38338584
Stark32273906
Lorain24997481
Warren24274298
Mahoning21546588
Lake20653369
Clermont19761238
Delaware18512133
Licking16418212
Fairfield16176199
Trumbull16032468
Medina15268264
Greene15063244
Clark13983299
Wood13080189
Portage12839203
Allen11639232
Richland11349199
Miami10670217
Muskingum8803133
Wayne8793211
Columbiana8778229
Pickaway8564121
Marion8523135
Tuscarawas8473244
Erie7888154
Hancock6914127
Ross6846155
Ashtabula6805170
Geauga6686148
Scioto6406101
Belmont5881167
Union570848
Lawrence5549102
Jefferson5525151
Huron5430119
Darke5355123
Sandusky5347120
Seneca5282121
Athens519158
Washington5155109
Auglaize490784
Mercer480385
Shelby469293
Knox4486110
Madison435661
Putnam4278100
Fulton422469
Ashland421789
Defiance419697
Crawford3975107
Brown394157
Logan381676
Preble379598
Clinton372163
Ottawa366679
Highland355062
Williams339275
Champaign331658
Guernsey315653
Jackson312551
Perry294950
Morrow284939
Fayette281950
Hardin270864
Henry268666
Coshocton265257
Holmes2603101
Van Wert243463
Adams237852
Pike237634
Gallia235349
Wyandot231055
Hocking215362
Carroll191547
Paulding172640
Meigs144840
Noble133337
Monroe132042
Morgan108423
Harrison108137
Vinton83115
Unassigned02
Fort Wayne
Cloudy
40° wxIcon
Hi: 43° Lo: 38°
Feels Like: 31°
Angola
Cloudy
36° wxIcon
Hi: 47° Lo: 35°
Feels Like: 28°
Huntington
Cloudy
40° wxIcon
Hi: 43° Lo: 40°
Feels Like: 33°
Decatur
Cloudy
40° wxIcon
Hi: 43° Lo: 40°
Feels Like: 31°
Van Wert
Cloudy
42° wxIcon
Hi: 43° Lo: 40°
Feels Like: 34°
Rain moves in overnight into Sunday morning and looks to hang around much of the day, likely forcing Mother's Day plans indoors
WFFT Radar
WFFT Temperatures
WFFT National

Community Events