Courts, Government

Do Trump's Judicial Renominations Signal A Strategic Pivot?

It's a new year and a new Judiciary Committee -- has Trump reevaluated his judicial nominees?

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(Photo by Drew Angerer/Getty Images)

One of the quirks of American civics is that the bevy of judicial nominations that Trump made last year that the Senate failed to confirm in time all lapsed, forcing the administration to either renominate those candidates or start from scratch. It’s an built-in opportunity for an administrative do-over, something the Trump administration might need following the high-profile smackdowns they received in this arena at the end of 2017 — Brett Talley, Jeff Mateer, and Matthew Petersen all flamed out spectacularly and now we hear that U.S. Court of Federal Claims nominee Damien Schiff’s nomination is indefinitely on hold — months after his cringeworthy hearing. Finally there’s a chance for the White House to regroup, take a hard look at the nominees it’s been putting forward, and make some changes.

So, obviously, they’re not doing that at all. Late last week, the administration announced 21 renominations for a variety of open judiciary seats — vacant because the Senate spent two years assiduously “not letting a black guy do his job” — and the list is pretty much “we’re hoping everyone who hasn’t yet gotten embarrassed by the press will be fine.” There’s certainly a logic there…

Richmond School of Law Professor Carl Tobias, an expert on the federal judiciary selection process, told me that no one should read any strategic shift into these nominations. While the pedigrees of these nominees seem less likely to elicit a hearing meltdown, it looks as if the administration is doubling down on its prior vetting process — a process that’s already put a legal blogger on the Sixth Circuit and sparked all of Trump’s December havoc.

Interestingly, only 7 of these picks appear to be current or former prosecutors. Prosecutorial experience is (too) often considered a prerequisite to a seat on the federal bench, making it all the more curious that the Trump administration aren’t tapping into the well of hard-charging former prosecutors. Given the hyperactive “tough on crime” platitudes of emanating from the Department of Justice, it’s odd that the ranks of state and federal prosecutors aren’t being trawled for more “hanging judges.” Not that prosecutorial experience is required to have a pro-law enforcement, anti-defendant bias, but seeking out prosecutors — especially formerly elected prosecutors — would seem the best way to guarantee that.

Also of note, this list reaffirms the administration’s commitment to improving the historical underrepresentation of white males, with only three women (though the press release kicks off with Judge Lisa Branch… a coy misdirection effort?) among these 21 nominees. Professor Tobias points out that this puts Trump on track to nominate roughly half of the number of women placed on the bench in the Obama years, but that the most egregious drop off remains with minority nominees — only 6 of the 68 circuit and district court nominations Trump has made are persons of color.

But will Trump come to rue the decision not to perform a hard reboot on his nominations? The changing makeup of the Senate Judiciary Committee suggests he might. Professor Tobias points out that with the election of Senator Doug Jones of Alabama, the Republican advantage on that committee has narrowed to one, allowing the Democrats to place both Senator Kamala Harris and Senator Cory Booker on the committee. Now the defection of a lone Republican senator — like Senator Kennedy who has some idiosyncratic beliefs about what a federal judge has to know — can stymie a nomination.

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Even if none of these 21 nominees will provoke someone to cross the aisle, the administration needs to take seriously that what’s come to be “business as usual” in nominating judges based on the strength of their anti-gay blogging may require a tweak.

This list doesn’t provide much confidence that such a shift is forthcoming.

(Check out the White House renomination announcement for info on all 21 nominees on the next page…)

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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