Alabama Senate loss will rein in Trump’s judicial selections

Alabama Senate loss will rein in Trump’s judicial selections
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Much ink is being spilt over the politics that led to Democrat Doug Jones’ victory in the Senate special election earlier this week, and what his victory will mean for the future balance of power in the Senate and for the Trump presidency. The win is likely to have an immediate effect on the Trump White House’s freedom in selecting nominees for the federal bench.

Populating the federal courts with new judges has been one of the Trump administration’s great successes: President TrumpDonald John TrumpCNN analyst Kirsten Powers: Melania's jacket should read 'Let them eat cake' CNN's Cuomo confronts Lewandowski over 'womp womp' remark Sessions says FBI agent Peter Strzok no longer has his security clearance MORE has nominated new judges at a brisk clip, and the nominees have overall been of excellent caliber.

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A few of the president’s recent nominees have drawn considerable criticism over their questionable qualifications and temperament. Indeed, two senators — including Sen. Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley wants to subpoena Comey, Lynch after critical IG report Senate Dems call for Judiciary hearing on Trump's 'zero tolerance' Republicans agree — it’s only a matter of time for Scott Pruitt MORE (R-Iowa), the chair of the Senate Judiciary Committee — have voiced questions.

 

Now, with the Republicans Senate majority reduced to one, the opposition of two senators would leave the Grand Old Party without a majority (absent Democratic support) to confirm judges. The Trump administration will have to firm up its judicial selection and vetting process and ensure that all its nominees live up to the high caliber of the vast majority of its nominees to this point.

The Trump administration has nominated, and the Senate has confirmed, new federal judges at a record clip. Aside from objections over ideology and concerns over lack of diversity, the overall quality of federal judges appointed by President Trump has been positive.

In light of the importance of the staffing of the federal courts, Senate Democrats have endeavored to delay, and oppose, Trump judicial nominations.

Given the overall good quality of the nominees, Republicans have been able to defend against Democratic attacks. Yet, a few of President Trump’s more recent judicial nominees have generated more controversy on this score.

The American Bar Association Standing Committee on the Federal Judiciary, which continues to assess the qualifications of judicial nominees has characterized four Trump judicial nominees to date as “not qualified.”

This is a rating the American Bar Association (ABA) standing committee confers when it believes a nominee fails to meet a minimal standard on at least one of three metrics: professional competence, integrity and judicial temperament. Indeed, the standing committee has issued two of these fournot qualified” ratings unanimously.

There are many — especially Republicans — who argue that the ABA infuses a liberal bias into its ratings. Moreover, for at least some of the factors, the ABA has set certain objective criteria that it applies mechanically, perhaps too much so.

For example, the ABA rated Holly Teeter, whose nomination to the U.S. District Court for the District of Kansas is currently pending before the Senate, “not qualified.”

Nevertheless, Teeter cleared the Judiciary Committee with bipartisan support once senators learned that the “not unqualified” rating resulted from the fact that Teeter has professional experience that fell one month short of the ABA standing committee’s rigid requirement that judicial nominees have twelve years of experience.

Two recent nominees that have received “not qualified” ratings have exposed breaks in the Republican ranks. First, Sen. John Kennedy (R-La.) announced his opposition to nominee Brett Talley. Talley, whom President Trump nominated to serve as a federal district judge in Alabama, has never tried a case. His nomination was further undercut by the revelation that Talley is married to the chief of staff to the White House Counsel.

Earlier this week, Grassley publicly announced that he’d urged President Trump to reconsider his nominations both of Talley and Jeff Mateer. The President nominated Mateer to serve as a federal district judge in Texas; Mateer had come under fire for controversial and offensive comments he made about homosexuality and religion.

Senator Grassley’s opposition should be of greater concern to the White House: After all, as chair of the Senate Judiciary Committee, Grassley can single-handedly and indefinitely hold nominations back at the committee stage by simply refusing to schedule confirmation hearings. But, if one treats Senator Grassley as simply expressing personal opposition to a nominee, then even Talley’s nomination would succeed (assuming no further Republican defections) under the current balance of power, with only two Republican votes against the nominee.

However, once Doug Jones takes office (and assuming Jones votes along with other Democrats, at least on divisive nominees whose qualifications can be questioned), the loss of two Republican Senators will doom a nomination.  

Perhaps in recognition of this approaching new reality, the White House — the day after Jones’s victory in Alabama — accepted Talley’s offer to withdraw his nomination to the federal bench, and announced it would not move forward with Mateer’s nomination either.

There is a relatively easy fix for the White House: The Trump administration should revisit its judicial selection and vetting process and ensure that questions about nominees are caught ahead of time, and thus ensure that all its nominees live up to the high caliber of the vast majority of its nominees to this point. That would be to the benefit of the White House, the judiciary, and the country in general.


Jonathan R. Nash is the Robert Howell Hall professor of law at Emory University School of Law. He specializes in the study of courts and judges; federal courts, federal jurisdiction, legislation and regulation and environmental law. You can find him Twitter at @JonathanRNash.