With more drama than the typical judiciary confirmation hearing, the session before the Senate judiciary committee spotlighted the strategy of Trump and his partners in the majority party to seat nominees at a faster clip than previous administrations and had Democrats crying foul.
“I think this rush to rubber-stamp President Trump’s nominees, many of whom have been extreme and many objectively unqualified, has diminished the Senate’s constitutional duty,” Sen. Patrick Leahy, a Vermont Democrat, said.
Trump has so far nominated 62 men and women to fill federal judgeships, with four powerful appellate judge positions already approved by the Senate. At this point under the past administration, the Senate had only confirmed two of then-President Barack Obama’s appellate nominees.
The candidates, if approved, will serve for lifetime terms and hear important federal cases, offering Trump an opportunity to implant a lasting legacy on the judiciary.
“When the history books are written about the Trump administration, the legacy will be the men and women confirmed to the trial bench,” Sen. Ted Cruz, a Texas Republican, said Wednesday.
Some of Trump’s nominees for the postings have drawn scrutiny for their qualifications.
Brett Talley, a 36-year-old attorney with a legal resume in Alabama and at the Department of Justice has practiced law for only three years and never tried a case. He was advanced out of the committee last week on a party-line vote for a position on an Alabama district court bench.
Talley is one of four of Trump’s nominees who have received a rare “not-qualified” rating by the American Bar Association, which has been vetting federal judicial nominees since the Eisenhower administration. Talley’s not-qualified rating, as well as the rating of Trump’s nominee to the 8th Circuit Court of Appeals, were unanimously decided — a demerit that’s only been given two other times since 1989, according to ABA records.
No nominees put forward by Obama received the negative rating, though the Obama administration allowed the ABA to make its review before officially nominating a candidate, whereas the Trump administration has presented nominees before the arrival of a rating. Seven nominees out of the 330 put forward by George W. Bush, who, like Trump did not wait for an ABA score, were deemed not-qualified.
But Republicans on Wednesday slammed the ABA as a biased organization that could not be relied upon to rate the nominees.
“I think the notion of a non-ideological organization has been belied by the conduct of the ABA over the years. The ABA today is an openly liberal advocacy group,” Cruz said, citing public positions the group has taken on abortion rights and gun control.
Sen. Dianne Feinstein, the committee’s ranking member, defended the organization and its Standing Committee on the Federal Judiciary.
“I’ve been on this (Senate judiciary committee) for 25 years now and candidly, I have valued these opinions. If I disagree with them that’s fine. But I know I’m not a lawyer and I know it is a group of lawyers from the most prominent association of lawyers who are doing some evaluation,” Feinstein said. “What are we afraid of?”
Feinstein also pointed out that the ABA has so far deemed 49 of Trump’s nominees either qualified or well-qualified, despite their rightward bents.
Appearing before the Senate committee, Pamela Bresnahan, the chair of the ABA’s vetting group, stood by the not-qualified ratings.
“I’ve been a trial lawyer for 37 years and my biggest fear is to go in front of a judge that doesn’t know the rules and hasn’t become familiar with the rules,” she said of Talley.
The six nominees before the panel Wednesday all received qualified or well-qualified ratings from the legal group, but did not escape a grilling from Democrats for their conservative beliefs.
Texas Supreme Court Justice Don R. Willett, a nominee to the 5th Circuit Court of Appeals, was on the defensive when quizzed by Sen. Richard Blumenthal on past comments made during a political campaign in Texas.
“I was certainly touting the support of pro-life leaders and organizations and pro-family leaders and organizations. I own that. I was running a partisan, judicial (campaign),” Willett said. “My personal views, Senator Blumenthal, they do not affect my judicial views.”
Willett, known in certain circles for his prolific tweeting, also sought to clarify a 2014 post relating a female transgender teenager who would be allowed to play on a girl’s softball team to the former Yankees star Alex Rodriguez.
“The tweet was a kind of off-kilter attempt at levity that missed the bullseye,” Willett said, promising to “absolutely” have an “open mind” to a transgender person appearing in his courtroom.
In an interview, Leonard Leo, an adviser to the President on judicial nominations, pushed back on the criticism of the candidates.
“There’s no question many of the nominees are young, but they’re extraordinarily talented for their age, and that’s an important point to make,” Leo said.
“Yes, they’re conservative in the sense that they believe in the Constitution as it’s written, and they believe that courts have a certain very defined role in our society, which is to interpret the law rather than to make it up. It’s not that they’re politically conservative. This isn’t about politics,” he said.