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Vet Them Now or Vet Them Later

The Trump administration has moved at a blistering pace to fill federal judicial vacancies. Despite the fact that the ABA has found nearly ten percent of the nominees “unqualified,” the Senate has largely acted as a rubber stamp. Their lack of scrutiny now may return later in the form of impeachment.

December 26, 2017

One of the few “successes” of the Trump admin­is­tra­tion has been the rapid pace of nomin­a­tions to the federal bench. When Trump took office last Janu­ary, there were more than 100 judi­cial vacan­cies, includ­ing one on the Supreme Court. As of early Novem­ber, Trump had put forward 58 names to fill those slots, includ­ing 18 for the federal appel­late courts. Although Repub­lic­ans are gener­ally more inves­ted in the ideo­logy of the courts than Demo­crats, to some, Trump is mount­ing noth­ing less than a complete a makeover of the federal courts. 

And that’s just the way some conser­vat­ives want it. Carrie Severino, policy director of the conser­vat­ive Judi­cial Crisis Network told The Daily Signal, “Pres­id­ent Trump and his allies in the Senate campaigned on the prom­ise to remake our federal courts…” 

Repub­lic­ans tend to go for ideo­lo­gical extremes in their nomin­ees. While Demo­crats tend to steer toward the middle of the road. Think plain vanilla Merrick Garland as Pres­id­ent Obama’s last Supreme Court nominee and the norms GOP Senate Major­ity Leader Mitch McCon­nell broke to thwart his nomin­a­tion, and then going on to change Senate rules to win confirm­a­tion of Trump’s more ideo­lo­gic­ally extreme choice of Neil Gorsuch. 

The Senate is also toying with the idea of getting rid of blue slips, a tradi­tional process where the home Senator of a judi­cial nominee can raise an objec­tion to a nomin­a­tion. If blue slips go, then pack­ing the courts with Trump nomin­ees could move at warp speed. 

As of this writ­ing, the Senate has confirmed one Supreme Court justice, 12 nomin­ees to the federal appel­late courts, and six nomin­ees to the federal district courts. Accord­ing to Axios, a dozen confirm­a­tions to the federal circuit courts is a record for a first-year pres­id­ent. 

Abandon­ing the prac­tice of past pres­id­ents, Trump has refused to submit his nomin­ees to the Amer­ican Bar Asso­ci­ation’s Stand­ing Commit­tee on the Federal Judi­ciary for eval­u­ation before they are announced. Perhaps it is merely pique, but a major­ity of the 15-member panel has found nearly 8 percent of his nomin­ees “not qual­i­fied.” This frequency of “not qual­i­fied” ratings is no small thing. In the 27 years ending in 2016, in both Demo­cratic and Repub­lican admin­is­tra­tions, a major­ity of the panel only found less than one percent (0.7 percent) of nomin­ees “not qual­i­fied.” 

Indeed, some of the Trump’s selec­tions seem like pecu­liar picks for the federal judi­ciary. For instance, it is posit­ively pain­ful to watch this video of Matthew Peterson, currently a member of the Federal Elec­tion Commis­sion, reveal how little he knows about litig­a­tion during ques­tion­ing by Sen. John Kennedy, a Repub­lican from Louisi­ana. Peterson with­drew his nomin­a­tion to the Wash­ing­ton, D.C. federal district court the next day. 

Then there were the curi­ous nomin­a­tions of Brett Talley and Jeff Mateer. Talley, 36, who had prac­ticed law for all of three years and never tried a case, sought a life­time appoint­ment to the federal district court in the Middle District of Alabama. And the ABA did not pull its punches with this one. The panel unan­im­ously found him unqual­i­fied. 

If that weren’t bad enough, Talley’s nomin­a­tion was also complic­ated by the fact that he is married to Ann Donald­son, the chief of staff to the White House coun­sel Donald McGahn. Donald­son is a witness in Robert Mueller’s invest­ig­a­tion into the firing of the FBI Director James Comey. The nomin­a­tion of Donald­son’s husband to the federal bench at least raised the ques­tion of whether the White House was trying to tamper with a witness. 

After Senate Judi­ciary Commit­tee Chair­man Sen. Chuck Grass­ley (Iowa) announced “he would advise the White House not to proceed” with the nomin­a­tion, Talley with­drew. The same fate befell Mateer, who was tapped for a judge­ship in the federal district court in the East­ern District of Texas. 

Mateer’s prob­lem wasn’t a lack of exper­i­ence, he’s currently first assist­ant attor­ney general of Texas, but his on-the-record state­ments that were deemed too extreme even by GOP stand­ards. In 2015, when he was general coun­sel of the First Liberty Insti­tute, Mateer said that trans­gender chil­dren are proof “Satan’s plan is work­ing.” He also predicted that the legal­iz­a­tion of same-sex marriage would lead to “disgust­ing” forms of matri­mony. "I submit to you that there’ll be no line there,” Mateer remarked. ”Why could­n’t four 4 people wanna get married? Why not one man and three women? Or three women and one man?” These sort of comments do not demon­strate what is commonly known as “judi­cial tempera­ment.” 

If Trump persists in nomin­at­ing such a ragtag bunch of federal jurists, keep an eye on them. If they disgrace them­selves on the bench, they could be impeached. Lately, impeach­ment has been thought of as a possible response to Mueller’s invest­ig­a­tion of Trump. At the moment, however, pres­id­en­tial impeach­ment seems remote. A GOP-controlled House would be unlikely to pass articles of impeach­ment, and a GOP-controlled Senate would be even less likely to convict. 

And while it’s true the Congress tried only once to remove a Supreme Court Justice, the unsuc­cess­ful impeach­ment of Samuel Chase in 1805, there actu­ally is a fairly extens­ive record of lawmakers forcing lower court judges from the bench. Since 1803, 15 federal judges have been impeached. Eight were convicted by the Senate, four were acquit­ted, and three resigned before trial. Put another way, a judge’s chances of survival once they are impeached by the House is only about 26 percent. 

The most recent impeach­ment was in 2010 for G. Thomas Porteous, Jr., a judge in the East­ern District of Louisi­ana. Among other things, Porteous was accused of accept­ing cash and favors from lawyers who appeared before him. The Senate convicted him on four articles of impeach­ment and he left the bench. 

Admit­tedly, 15 judi­cial impeach­ments in 215 years make them a relat­ively rare occur­rence. But if Trump persists in nomin­at­ing unsuit­able people, and the Senate persists in the confirm­ing them, then the vetting that should have been done on the front end, may end up being done on the back end through impeach­ment.