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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.

"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," Torres-Spelliscy writes. (Photo: Ron Cogswell/Flickr/cc)

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. 

"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."

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 Michael 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.

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Ciara Torres-Spelliscy

Ciara Torres-Spelliscy

Ciara Torres-Spelliscy is a Brennan Center Fellow and an Associate Professor of Law at Stetson University College of Law. She is the author of Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics.

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