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.
The Senate this week narrowly confirmed Leonard Steven Grasz, nominee to the 8th Circuit Court of Appeals, by a vote of 50-48. The confirmation of Grasz marks the first time since Lyndon Baines Johnson was president that the Senate confirmed a nominee rated by the ABA as not qualified to an appellate bench.
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.”