Judiciary

Trump's Record on Judges

Recent focus on a few failed trial court nominations obscures impressive record of stellar nominees for appellate courts.

|The Volokh Conspiracy |

On Monday, one of President Trump's judicial nominees—Matthew Petersen—asked the President to withdraw his nomination. A lack of trial court experience and embarrassing performance before the Senate Judiciary Committee made confirmation to the U.S. District Court for the District of Columbia a heavy lift. Peterson's was the third judicial nomination to be withdrawn this month, as two other nominations were pulled from consideration last week.

Also last week, the Senate confirmed Justice Don Willett and James Ho to the U.S. Court of Appeals for the Fifth Circuit and Leonard Grasz to the U.S. Court of Appeals for the Eighth Circuit. These three were the tenth, eleventh, and twelth circuit nominees confirmed this year, setting a record for the number of appellate nominees confirmed during a President's first year (in addition to the confirmation of Justice Neil Gorsuch to the Supreme Court).

It is not simply the number of appellate judges confirmed, but the caliber. Trump's appellate nominees have been impressive, and compare favorably in terms of intellect and qualifications with those of any modern President. Among other things, they include a surprising number of legal academics, including newly confirmed judges Amy Coney Barrett (7th Circuit), Stephanos Bibas (3rd Circuit), Allison Eid (10th Circuit), and Joan Larsen (Sixth Circuit), and pending nominees David Stras (8th Circuit). Like the Reagan Administration, the Trump White House appears interested in naming judges who can help provide intellectual leadership on their respective courts—and that's precisely what they have been doing.

While the Trump Administration's appellate nominees have been superlative, its trial court nominees have been more of a mixed bag—and this should not be much of a surprise. The White House Counsel's office has focused its efforts on the appellate courts, ensuring that all appellate nominees are of the highest quality. Trial court nominees, on the other hand, are more the product of political deal-making and Senatorial prerogative.

Consistent with historical practice, the Trump White House has been far more deferential to home-state Senators when it comes to federal district courts than it has been with the circuit courts. This is no surprise because home-state Senators tend to have strong opinions about who should sit on local trial courts and how federal district court jduges should be selected. While the White House has been willing to push hard for the highest caliber appelalte nominees, it's been more compromsing on district court picks. When a Senator from, say, Texas or Alabama, insists that a former legislative staffer or political supporter gets a trial court seat, the White House has been more willing to acquiesce. In some cases this is not a problem. In others it results in nominations that were not sufficiently vetted or that lack the qualifications one might otherwise want or expect.

That an Adminstration eventually thinks better of potential nominees is not all that surprising. During the Obama Administration, over a dozen prospective judicial nominees readied by the White House were scratched due to "unqualified" reviews from the American Bar Association or other political resistance, forcing Administration judge pickers to start over from scratch. The Trump Administration's failures have been more public—in part because the ABA does not review prospective judges prior to their nomination—but the underlying dynamic is much the same. The 40-plus district court nominees tapped by Trump to date have included some stars, but some also-rans as well, and a few of the latter will not get confirmed.

While the failure of a few trial court nominees may be embarrassing for the White House, these failures are far, far less significant than the Administration's success at tapping highly qualified and intellectually serious jurists for the appellate bench. With over 150 federal court vacancies yet to fill, recent stumbles are unlikely to prevent the Trump Administration from having a significant—and likely salutory—effect on the federal bench.

UPDATE: On Twitter, Keith Whittington notes that one reason to allow ABA vetting of judges prior to nomination is to give the White House leverage against potentially unqualified patronage picks pushed by home-state Senators. This is certainly true, and it is how many Administrations have used the ABA evaluation process. Some of the Obama Administration's preemptively withdrawn picks would fall into this category. A bad ABA review is not always enough to prevent a nomination, however. The Clinton Administration proceded with four nominations despite receiving "unqualified" ABA ratings. Unlike other administrations, the Bush and Trump administrations have not allowed ABA evaluation prior to nomination due to concerns (justified, in my view) that the ABA process has shown bias against conservative nominees. For example, noted Judge Frank Easterbrook of the Seventh Circuit, for example, received the then-lowest rating of "Qualified/Not Qualified" when nominated by President Reagan.

[Note: As originally posted, I mangled Matthew Petersen's name. My apologies.]

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124 responses to “Trump's Record on Judges

  1. There are big differences having a law degree, teaching the profession, and practicing the craft. In the case of Andrew Peterson, he is a bureaucrat with a law degree. He’s little more qualified to be a judge than my German shepherd. I can accept an academic and practitioner, but no one should settle for someone with no experience at all.

  2. Shorter Adler: More right-wing lunatics, please, Mr. Trump. If you make mistake in the rush and nominate a complete ignoramus we won’t hold it against you.

    1. Okay, bernard said it before I could!

      I’d like to just clarify that right-wing lunatics are a special sub-class on the right. The alt-right, plus those who would KNOWINGLY elect a sexual predator to oppose the unalienable rights of pregnant women — who also have God-given rights at conception. Any dictionary will confirm that all unalienable rights are precisely co-equal.

      That means Gorsuch alone discredits this entire puff piece,

      1. So, “passing familiarity with the Constituition” equals “right-wing lunatic” in your book. Noted.

        1. Read it again, Rigelsen. Or explain your confusion on unalienable rights. And you missing that I had defended the right. And be honest (stop using quotes for words you invented).

          If you stay out of the gutter, you won’t be confused with a right-wing lunatic.
          Just trying to be helpful!

      2. Knowingly…

        Like Bill Clinton (accusations prior to Presidential run), Ted Kennedy (Not even Chappaquidick, but many other accusations in the 80s), Gerry Studds (elected 6 more times after the 1983 Page scandal)… like those?

        You also seem to have a weird definition of unalienable rights. Restrictions on the 3rd trimester are not extreme political views, in fact they are common and supported by even a majority of women. Most of Europe has similar restrictions. It is actually the DNC platform of death until breach that is extreme (with actual comments of mothers getting a week post birth to decide by some prominent members).

        Not sure how Gorsuch even made it to your rant.

        1. None of that is anything like Moore in degree or kind.

          Plus the GOP has been the fire-and-brimstone morality folks not afraid to tirelessly invoke Thinking of the Children.

          Killing a baby a week post birth is monstrous. And also strawmanning. Snopes debunks it, and otherwise I see it only on right-wing news sites…and Slate. Which, well, Slate.

          It’s really telling how pro life people can’t be content with the moral debate and have to find facts that make their correctness inarguable.

          1. “It’s really telling how pro life people can’t be content with the moral debate and have to find facts that make their correctness inarguable.”

            Everybody does that, Sarcastro. It’s hardly the property of the lifers.

            1. It’s a temptation for everybody – it seems the main thing Pro Life people spend their time doing.

              Contrast with Pro Choice people – they spend some time on anecdotes of various truthiness, but also spend some time discussing the philosophical and sociological underpinnings of women choosing.

              1. Right YOUR side is all-perfect!!! BOTH extremes on the abortion issue are seeking to impose their own view by the force if law. And BOTH reject the fundamental concept of equal, unalienable and/or God-Given rights.

                One denies the fetal child’s unalienable Right to Life, by demanding abortion up to the point of birth. The other extreme denies the fetal woman’s unalienable Right to Liberty, starting from conception — umm, the woman’s rights also trace to conception, but God somehow suspends rights when it’s con-veeeeeeen-yent to some.

                Hence, Separation. The (un)Holy Inquisition was still committing moral atrocities at our founding, up until about our Civil War. We’d suffered the Salem witchcraft trials and other atrocities here (mostly anti-Catholic). And,. of course, so many came here to ESCAPE religious persecution. But of what use are historical facts?.
                .

            2. True about so many — since special interest leaderships seek power by brainwashing their faithful, religious or otherwise. But how many of them have been exploited by their faith, to BELEEB their lies are inspired by some God … in a nation founded on Separation, as confirmed by the first three Presidents and the unanimous Senate in the ninth year of our Republic?

        2. You also seem to have a weird definition of unalienable rights.

          One more time for the uneducated and/or brainwashed. “Any dictionary will confirm that all unalienable rights are precisely co-equal”.

          Lemme ‘splain it to you. If any two rights may NEVER be denied or disparaged … for any reason … then they are equal to each other. And there are MANY more than two. Thus — do they no longer teach this ibn schools? – NO rights may be absolute, not even Life. And that includes Life, Liberty. Pursuit of Happiness … and all the others.

          The Ninth Amendment enforces that by forbidding government to deny or disparage ANY fundamental human rights … even beyond those listed in the Constitution. The exact text reads:

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

          Can YOU list those absolute rights? The Founders refused to. But the self-righteous have been a supreme power unto themselves for most of human existence.

          And how can you claim, in public, that Gorsuch supports Casey (which supplanted Roe)?

          Anything else?

      3. The previous sexual predator left office with a 60%+ approval rating.

        Sexual predation clearly is not a disqualifying factor.

        1. I seem to recall some on the right not being thrilled at Dems about that. How things change, eh?

          1. Tribalism.
            AND BENGHAZI!

          2. The voters gave their approval.

            They set precedent.

            1. Way to subsume your own moral compass.

              And serial adultery and sexual harassment of underlings may be really bad, but it’s incomparable to child predation.

                1. Moore! He even shot himself in the foot with his denials.

            2. The voters gave their approval

              They also elected Adolph Hitler and Benito Mussolini.

              1. No. The people didn’t elect Hitler, not to the position of Chancellor. He was appointed.

    2. And we certainly won’t hold it against the ABA, who rated Peterson qualified, right?

      1. Why not?

        “Petersen had never tried a case in any court, in front of a jury or otherwise. Never taken a deposition on his own. Never argued a motion in court. Couldn’t answer basic questions about accepting evidence in court.”

    3. Which of Trump’s picks are “right-wing lunatics? specifically and why? It’s easy to spew such labels. How about backing up you claim with names and facts?

      1. Gorsuch is the most obvious, though at a higher level than mentioned here.

        1. Okay, I’ll take the troll bait: inbwhat way is Gorsuch a “lunatic”?

          1. Because the GOP STOLE THE NOMINATION FROM OBAMA, or some other ignorant statement like that.

            1. Liberal commenter is about to overplay his hand.

              Jesse cannot wait, and jumps the gun.
              Jesse becomes indignant at the argument he just made on behalf of the liberal.
              Jesse’s conservative convictions are validated even more quickly than if he relied on factual means.

              1. Praise the Lord!

                (Where do you see any liberals here??? This is a libertarian website. Fiscally conservative, socially tolerant and absolutist on equal, unalienable and/or God-given rights .. like the majority of Americans)

          2. okay, I’ll take the troll bait: in what way is Gorsuch a “lunatic”?

            Well, troll, by supporting a theocracy and rejecting the fundamental moral principle of equal, unalienable and/or God given rights. Defying the Will of God .. in the Name of God. All too common these days.

            Your turn. Why was Thomas Jefferson a troll?

            1. Because when he finished writing the Declaration of Independence, he went home, had a cup of tea, and raped his slaves.

              1. Even if your bullshit was true … how would that invalidate the entire concept of equal, unalienable and/or God-given rights? Be specific. Use logic. TRY.

                1. “If” it’s true that Thomas Jefferson raped his slaves?

                  1. MOAR evasion!

                    how would that invalidate the entire concept of equal, unalienable and/or God-given rights? Be specific. Use logic. TRY

                    1. Errrr, thanks, Hihn. But I’ve got it covered.
                      And he’ll likely duck the question until Hell freezes over.

                  2. Maybe he was questioning whether Jefferson had Tea first.

            2. I don’t even understand what point you’re making. Gorsuch supports a theocracy but isn’t sufficiently respectful of God given rights? What are you talking about?

              Could you tell us, specifically, what Gorsuch did or said that makes you think he supports theocracy? Or that makes you think he doesn’t believe in unalienable rights?

              1. Gorsuch supports a theocracy but isn’t sufficiently respectful of God given rights? What are you talking about?

                He opposes Separation, which leaves only a theocracy, hardly a Constitutional originalist. I said equal, unalienable and/or God-given rights .. which are all precisely equal to each other So, one cannot claim that Rights are God-Given AND deny their equality. That’s defying the Will of God (equality) in the Name of God.

                Or that makes you think he doesn’t believe in unalienable rights?

                Abortion for sure, which often suggests many others. The woman and the fetal child have precisely equal rights — one to Life. the other to Liberty, both supposedly per God.

                I’m fairly sure he’s not as bat-shit crazy as Roy Moore’s theocracy. Moore cites the Bible, self-righteously, to defend his legal assault on gays. But ignores that same Bible unless he stones to death all infidels (even his brother, spouse, child or friend) … and also slays all women who were not virgins on their wedding night. To pick and choose which of God’s laws to obey or ignore is to place one’s own Will above the will of Almighty God. Blasphemy.

                1. Could you provide evidence that Gorsuch opposes separation?

                  “That’s defying the Will of God (equality) in the Name of God.”

                  This is patent nonsense. You aren’t making any sense and sound like a homeless drunk preacher.

                  “The woman and the fetal child have precisely equal rights — one to Life. the other to Liberty, both supposedly per God.”

                  I can’t tell if you’re against abortion, you think Gorsuch is against abortion, of if you even understand the concept of unalienable. Are you religious or anti-religious? You cite the Bible as authority while simultaneously bemoaning Gorsuch’s imagined attack on secularism. God didn’t write the Constitution.

                  1. Could you provide evidence that Gorsuch opposes separation?

                    Already did.

                    “That’s defying the Will of God (equality) in the Name of God.”

                    This is patent nonsense. You aren’t making any sense and sound like a homeless drunk preacher.

                    You seem deeply confused on the equality of God-Given rights. I’d say you sound like an itinerant televangelist, but that would be sinking to your level..

                    “The woman and the fetal child have precisely equal rights — one to Life. the other to Liberty, both supposedly per God.”

                    I can’t tell if you’re against abortion, you think Gorsuch is against abortion, of if you even understand the concept of unalienable

                    Umm, all unalienable rights are absolute, thus precisely co-equal. Can you stay on topic, and avoid the personal?

                    .

                    Are you religious or anti-religious? You cite the Bible as authority while simultaneously bemoaning Gorsuch’s imagined attack on secularism.

                    THAT is profoundly irrelevant. How is secularism in conflict with the Bible? Is it possible to stay focused on the ideas and concepts? You SEEM eager to get into something personal, which I have neither the time nor the patience for..

                    God didn’t write the Constitution

                    Okay, now I’ll say that I’m an non-believer. Only to show what happens when one veers off into the personal? Can you stay relevant, on topic, and skip the personal crap?

                  2. For G*d’s sake. NToJ, let it ride. He’s going to keep playing response ping-pong as long as you keep trying to get a straight answer. It’s like having a conversation with a meth-addict.

                    1. (lol) That’s why I worked a bit to APPEAR overly polite
                      In my ridicule of his evasions, bullshit and denial, his refusing to deal with the issue. His preference for ad hominems, intimidation and self-righteous bellowing.
                      All typical of his ilk.
                      As you’ve just proven.
                      Thanks!

  3. When a Senator from, say, Texas or Alabama, insists that a former legislative staffer or political supporter gets a trial court seat, the White House has been more willing to acquiesce.

    In return for what, one wonders. To the outside observer the GOP in Congress loathes Trump, and wants only one thing from him – judges. Trump seems to be roughly equally keen on the GOP Congress, and he wants all sorts of things from Walls to infrastructure. So far the Great Dealmaker seems to have given the GOP Congress everything it wants judgewise and has got the square root of zip in return.

    Why is he willing to acquiesce ?

    1. Probably because he actually is trying to fulfill his campaign promises, and the judges were one of them.

      He needs Senate cooperation to get the conservative judges through for the higher positions, and can scarcely afford to lose even one Senator.

      1. Jefferson was correct. “Consent of the governed” REQUIRES a new Constitution by each generation.
        Else we have rule by the dead. Rule by force, not by right. WHO is being governed? duh

        One obvious revision. Lifetime judicial appointments should require the same 2/3 approval as treaties. If only to diminish tribal power-seeking by both corrupt teams.

    2. “In return for what, one wonders. ”

      What did senators expect in return from the other 44 presidents?

      Its not like Trump invented the practice.

    3. “Why is he willing to acquiesce ?”

      Because it is par for the course. This isn’t a new deferment to Congressional politics. This is quite common. Where’s Ilya with his political ignorance articles?

      1. Y’all – except Brett – are missing the point. I know that to get your judges through you have to get Senatorial approval. Indeed to get anything through, you have to scratch Senatorial backs. Politics 101.

        But although it was an important campaign promise (ie important in getting regular Republicans to vote for him) I don’t believe Trump cares who judges are or what their philosophy is (except the judges who happen to be hearing his own cases.) The judge thing was always a sop to the GOP establishment and GOP voters. They’re not anything he personally cares about. So actually nominating and appointing conservative judges is part of his scratching of Senatorial backs. They’re not doing him any favors by confirming the people they’re begging him to nominate. The flow of favors is entirely Trump => GOP Congress.

        If the tax bill gets through then that’ll be something that he does actually want, but again, that’s pretty much a draw favor wise. The GOP Congress wants the tax bill at last as much as Trump does, and all the horse trading has been between members of Congress.

        What’s lacking so far is any sign of Senators or Congressmen actually doing something for Trump that they’d rather not do, in exchange for all that backscratching that Trump has been doing. That’s what’s supposed to happen when you’re a Great Dealmaker. You do something for them, they do something for you. So far he’s not getting anything from them.

        1. And, of course, President Hypocrite denies the independent judiciary as a co-equal branch of government. NOBODY is a check on his own perceived power. He was the same in business..

    4. Because it’s in the Constitution.
      “”shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, ”
      The amount of advice the President takes on nominations is proportional to how much power that officer will have.
      Trial Court Judges have the least power, so Presidents have been willing to allow Senators the most input in terms of advice for those seats. It’s a method of getting along with the Senate.
      A new President could simply pick a Trial Court Judge, but that would upset those in the Senate, which heavily favors tradition, and setup a needless animosity between Senators and the President.

      1. “A new President could simply pick a Trial Court Judge, but that would upset those in the Senate, which heavily favors tradition, and setup a needless animosity between Senators and the President.”

        Eh, there’s more to it than that. And while I think Prof. Adler (either intentionally or because he didn’t bother understanding the issue before posting) doesn’t get what’s going on here, he does list the *negative* reasons regarding Senatorial prerogative (crony positions for connected staffers, for example).

        That said, there is a positive reason. A Senator is more likely to understand, you know, the state that the Federal Court judge will be sitting in. For trial judges (district courts) this isn’t a question of pulling someone out of the “national” jurist pool; you’ll usually want someone local (because they have to deal with state law diversity cases, among other reasons). So it’s also about getting input regarding the state, which the Senator is more likely to have some knowledge of than the President. After all, to use one example, Kennedy is more likely to be attuned to the legal landscape of Louisiana than is Trump or other figures in his administration.

        1. Yep. Federalism.

  4. Does the Senate Committee usually give judicial nominees little law and procedure tests in the hearings, or was this a new idea for this guy because he was a mere bookworm ? If they don’t do it as a matter of course I think it would be a good tradition to begin.

    1. Well, the true reason is because this particular nominee would not only have been a terrible federal judge, but was only nominated because he was a friend and former associate of McGahn. There’s some bad blood that’s started with Kennedy no longer feeling comfortable with the nomination, after having been blind sided with Talley, and with having had less than civil conversations regarding some of Trump’s nominees (well, that’s the reporting).

      That’s why, in addition to the simplest civil procedure questions (which really only required that the nominee spend a few hours, you know, preparing for the hearing), Kennedy asked about the KKK. That was really about being blindsided by Talley.

      1. But since i know you are learned as to the law, I’m guessing you do actually know the answer to my question. Which is – do they usually do this quiz thing, or not. And if not, then it seems like it might be a good idea if they did.

        1. Lee-

          They normally don’t quiz on such basic issues. And, tbh, I could almost give a pass on the abstention questions; these are things that I know, but I wouldn’t necessarily expect every attorney to know (although a federal judge would know them).

          That said, I don’t think I’ve ever seen the need to quiz a nominee on what, for example, a motion in limine is. That was beyond embarrassing. I really did feel a part of my soul dying when I watched that exchange.

          But to get back to your question, no, it’s not common that I know of to ask such basic questions. I think there’s an assumption that a person who will be elevated to a judgeship knows what a motion in limine is. It’s not something that you would, or should, quiz on.

          1. “I could almost give a pass on the abstention questions; these are things that I know, but I wouldn’t necessarily expect every attorney to know (although a federal judge would know them).”

            I realized that could be, um, misinterpreted. So, IIRC, Petersen was asked about Younger and Pullman abstention. I would expect any federal judge to know this. I would also expect any attorney that has practiced for a significant amount of time in the federal area to have run across this. OTOH, these aren’t necessarily in the same category of issues like, “Do you know a motion in limine is?” Or, “Have you read the Federal Rules of Civil Procedure? Of Evidence?”* Or, “Have you ever taken a deposition? And by take, I mean, something more than take notes at someone else’s deposition?”

            *The reason that Petersen’s answer was so incredibly damning, IMO, with regards to these questions is that in addition to the bloviating, he tried to answer it as if either of these are things that you read through. Which, um, you don’t. They aren’t cases, or a short work of fiction. You know the rules because you’ve learned them, and you refer to them as needed. I don’t know any attorney (or judge) who sits down and reads them holistically, as opposed to referring to the sections that they need to use, and which they are already familiar with.

          2. I think there’s an assumption that a person who will be elevated to a judgeship knows what a motion in limine is. .

            Thank you. On the basis of what you say, I agree that it looks like a nominee ought to have some basic knowledge. And the Senate ought to make sure of that while it’s advising and consenting. So I’ll disagree with :

            It’s not something that you would, or should, quiz on

            Seems to me that unless they’re dealing with the elevation of an existing federal judge to a higher station, they could easily take twenty minutes out from their political bloviating and grandstanding to check that the judge has some basic knowledge.

            1. “Seems to me that unless they’re dealing with the elevation of an existing federal judge to a higher station, they could easily take twenty minutes out from their political bloviating and grandstanding to check that the judge has some basic knowledge.”

              Maybe I didn’t explain this right, or you are just taking the quote out of context. The reason I don’t think they would normally do this is I can’t imagine that you would nominate someone who wouldn’t know this. For a trial court position. Where motions in limine are the bread and butter of the job.

              FWIW, I asked a transactional attorney I work with about the hearing, one who famously doesn’t even know where the courthouse is located, and even he was embarrassed, As he put it, “Even I know what a motion in limine is, and I’ve never set foot in a courtroom.”

              (He went to say if doesn’t remember if he learned that from law school, Law & Order, or listening to us litigators yap about it, but he did know what it was.)

              1. Well, I think Rick Hasen (not someone who I usually agree with, and not a natural supporter of the judge in question) gets to the point that worries me :

                https://electionlawblog.org/?p=96453

                “Anyone with a decent amount of trial experience should know that, and it is clear from his answers that he didn’t know that. On the other hand, it is not clear that we want all of our federal judges to be cut from the same cloth. Commissioner Petersen has extensive experience on the FEC, and I have no doubt he could read legal cases and resolve difficult statutory questions in his capacity as a judge. Not every trial judge needs to be a former litigator.”

                He reasonably goes on make the point that if you’re not a former litigator, you might at least be expected to prepare yourself to be gotcha’d on Litigation 101. After all, you don’t want the sort of judge who isn’t going to bother to read the briefs. But if Presidents are going to nominate non litigators -as they should – then it’s reasonable for the Senate to check that they’re at leat up to Litigation 101 standard.

    2. Kennedy asked the questions … because there was nothing in the nominees resume or history to suggest he was even remotely qualified. So Kennedy gave him the opportunity to defend himself.
      No conspiracy here.

      ANY fair employer would do likewise, for an applicant whose resume seemed totally unqualified
      But respect for others is no longer a virtue in Tribal America.

  5. Prof. Adler,

    This isn’t a very good post, or defense. To make a general argument when there are specific reasons out there is, to be completely honest, embarrassing.

    Your entire post is basically, “Look, there might be bad nominees because of Senatorial prerogative, but when the White House gets to make the decisions, it’s all awesome!” That’s not the issue, here, at all. And you should know that. Either you know what’s going on, and have chosen to write this, or you don’t, and have posted this without doing a minimum of due diligence.

    The issue is that the the White House has bypassed the Senate almost entirely; this is why there has been pushback by ostensible Trump supporters such as Senator Kennedy (R-La.). The reason these issues are starting to pop up is because there has been no consultation or “Senatorial prerogative” (see Kennedy’s comments regarding Katsas, Duncan) and that the White House hasn’t been disclosing relevant information because of the assumption of rubberstamping (see Talley).

    This doesn’t mean that there haven’t been very good people nominated, but this post is truly terrible and misleading.

    1. Yes, the White house has basically bypassed the Senate entirely, except for lower court nominations.

      That’s why they’ve mostly been such GOOD nominations!

      1. Wow. I’m impressed by that, Brett. Even by your standard, that is a masterful example of not being able to understand a single thing that was written.

        Do you realize that you not only completely missed the point, but that you just amply showed why Prof. Adler’s post was an example of how intellectually bankrupt this exercise was? It’s one thing to say, in good faith, that many of Trump’s nominees are “good” (or, at least, have an intellectual rigor to them). However, by writing what he did, which wasn’t accurate and didn’t have any examples, and, in fact, in the examples we know of IS NOT THE CASE, he simply gives some justification for people like you who don’t know anything to repeat the same, tired, incorrect lines.

        For example, the rejected and unqualified nominees had nothing to do with the Senate, but were picked by the White House without consultation from the Senate, and were (in two examples at least) picked solely due to their association with McGahn, not because of the Senate.

        1. Indeed, the Trump White House, in all its supreme arrogance, asserted, from the start, that it would reject any ABA ratings until AFTER nominations. Because, Divine Right of Goobers

      2. That connection has not been demonstrated.

        Moreover, judges becoming the sole prerogative of the executive is a really bad idea for the country no matter how excited you are about short term gains.

        You argued the exact other side about the Senate telling Obama to suck it regarding the SCOTUS. How do you coordinate between those two responses?

        1. Look, the problem conservatives have had with judicial nominations is that the Senate has a conflict of interest in staffing the judiciary: Part of the judiciary’s job is to tell the Senate when they’re exceeding their legitimate power!

          The Senate doesn’t LIKE good judges from a conservative/originalist perspective. They’d much prefer judges who will rubber stamp anything the federal government feels like doing.

          I approve of Trump nominating good originalist judges to the higher positions, even if he has to buy off the Senate by letting them dictate the lower level judges. That’s what’s going on here.

          1. “I approve of Trump nominating good originalist judges to the higher positions, even if he has to buy off the Senate by letting them dictate the lower level judges. That’s what’s going on here.”

            Yes, traditionally the Senate has worked with the White House when it comes to the nominations. That’s what Adler is referring to. But the specific issue here is that the White House hasn’t worked with the Senate. The specific nominations that are at issue aren’t “Senatorial pork / prerogative” like Adler wants you to believe, they were White House / McGahn pork.

            The shocking thing that happened was that the White House pushed too hard; all the nominations, no matter how bad, were rubber stamped, until the Talley mess came out. It wasn’t just the KKK business, it was the undisclosed conflict (re: wife). Combine that with the high-handed way the White House has been shoving these nominations down, and that’s why you’re getting push back.

            In short, this article crud because the entire premise is crud. There is no “divide” between good WH nominees and “bad” Senate nominees. They are all from the WH. The problem is that while the WH has “good” nominees (from a Federalist perspective), McGahn has also been pushing some crony picks- not Senate crony picks, but WH crony picks. So Adler is 100% mistaken, which is why he is making a general argument as opposed to, you know, discussing what actually happened with Petersen, a former colleague of McGahn.

          2. Judges check the executive more than the Senate these days. Why no conflict there?
            And it appears ‘loyalty’ is something Trump is testing his judges for. A rubber stamp for someone you agree with is still a rubber stamp, isn’t it?

            And how did the Senate manage to get over it’s dislike of originalism to break all sorts of norms in order to get Gorsuch on SCOTUS?

            Your originalists-justifies-the-means reasoning is more honest than I expected though.

            1. Of course there’s a conflict there. Anybody in the Federal government picking those judges is a conflict.

              I think on the whole Trump has made excellent nominations, but not all of them have been excellent. Some of the not so good ones were an effort to buy the political capital to get the better ones through.

              1. “Some of the not so good ones were an effort to buy the political capital to get the better ones through.”

                What? Seriously? Do you just make stuff up now? Does my question presuppose the answer?

                No. The not-so-good ones were not buying political capital, because then you’d have to identify who he was buying from. So, let me help you out here. Who was clamoring for Petersen? Who was clamoring for Talley? Did that buy him political capital with his base? No.

                With the Senate? Heck, no.
                With donors? Nope.

                Who then? Well, let’s see, it got some political capital with, um, the person making the picks (ahem). But Trump didn’t need that, did he?

                Why do I even bother. Shoot down one lie, 50 more take its place. It’s like Hydra, but far more stupid.

          3. Part of the judiciary’s job is to tell the Senate when they’re exceeding their legitimate power!

            Also abuses by the current President, so your conflict of interest is more than a tad … conflicted.

          4. Look, the problem conservatives have had with judicial nominations is that the Senate has a conflict of interest in staffing the judiciary: Part of the judiciary’s job is to tell the Senate when they’re exceeding their legitimate power!

            If this is what conservatives don’t like about judicial nominations, you might want to sit down before I tell you who does the nominating.

            1. you might want to sit down before I tell you who does the nominating.

              You might want to sit down before I explain Article II, Section 2 of the Constitution!.

              1. Please, proceed.

                1. It requires Senate approval of those nominations Text

                  The other half of the error I cited immediately above your circular logic.
                  https://reason.com/volokh/2017/…..nt_7067416

                  When conservatives object to judicial nominations, you somehow believe they have no idea WHO made the nomination they object to. Do they learn by anonymous emails? Sky writing? Like most libertarians, I have no love for doctrinaire conservatives, but also none for doctrinaire leftists

                  Because Left – Right = Zero.
                  And I have a functioning mind. .

                  Sorry, if my original sarcasm was too subtle.
                  Kindness.

    2. ” the White House has bypassed the Senate almost entirely”

      Well, except for the whole consent part of the appointments. You are going to be just as bad here as at the WaPo it seems.

      1. I’m thrilled to see Jesse quoting and calling out Brett.

        But I’m really confused. Choosing in a battle between Brett and Jesse is like choosing between Duke and the Yankees. I mean, I suppose you could, but why should you have to?

        1. The introduction of some genuine libertarians to the Volokh Conspiracy commenting mix has been welcome, enjoyable, and consequential.

          At least the right-wingers still have their persecution claims.

          1. Try to avoid four-syllable words like “consequential” to these people.
            Just say’in.

      2. You are going to be just as bad here as at the WaPo it seems.

        But not as bad as Fox?

    3. How does one “like” a comment at this site? I like this one.

  6. Some here seem dismayed by our presidents progress toward making this country great again . . . probably an indication of over exposure to the propaganda pumps, e.g., the N.Y. Times, W. Post, NPR, etc.

    We should all pause a moment and give thanks that Hillary is not president.

    1. Spasibo, tovarish.

    2. Yes, some are.

      I for one am deeply dismayed at what Trump, and the entire GOP including #neverTrumpers, are doing, which, far from making the country great, is highly destructive.

      I am dismayed that some I considered reasonably intelligent are happy to go along, as long their buddies get judicial appointments. I guess I shouldn’t be surprised. Most of the destruction is standard Republican policy, predating the arrival of Mr. Trump.

      1. Pelosi does the fire and brimstone better than you Bernard. Leave it to her.

        1. It’s not just fire and brimstone, Jesse. I really think that the Republican Party is a seriously destructive force in the US today. You don’t agree, I’m sure.

    3. Ho-ray for our side is some empty, knee-jerk non-reasoning. When you support it with ‘disagreement with me is because of fake news, Hillary bad’ you manage to make it even worse.

    4. Yes, we can be thankful that Hillary — thoughtful, thick-skinned, careful, organized, brave, hardworking, extraordinarily well prepared, in touch with reality, able to learn and adjust to new situations, and familiar with what a President does and how our system of government works — is not President.

      We can be glad that Trump — incompetent, unstable, fragile, cowardly, impulsive, ignorant, lazy, living in a fantasy world, a boastful sexual predator, and unable to learn on the job — is.

      1. “thoughtful, thick-skinned, careful, organized, brave, hardworking, extraordinarily well prepared, in touch with reality, able to learn and adjust to new situations”

        OMG! A Clinton cultist in the virtual flesh.

        “We should all pause a moment and give thanks that Hillary is not president.”

        Everyday.

        1. All you had to do was look at the debates from 2016 and what I’ve said is self-evident.

          1. self-evident to lunatics maybe

          2. What you said about Trump is self-evident. What you said about Hillary is anything but.

            1. “What you said about Hillary is anything but.”

              You can like, or dislike Hillary Clinton for many reasons, but most of these are pretty well known.

              Let’s see!

              “thoughtful, thick-skinned, careful, organized, brave, hardworking, extraordinarily well prepared, in touch with reality, able to learn and adjust to new situations, and familiar with what a President does and how our system of government works”

              Unobjectionable-
              Thoughtful, Organized, Hardworking, Extraordinarily Well Prepared, Familiar with what a President does and how our system of government works.

              Not sure how any of these (including thoughtful, considering how well-known reputation as a policy wonk) are that controversial.

              Should be unobjectionable-
              Thick skinned, careful, in touch with reality.

              Often criticized for being too careful and/or calculating, and too realistic (as opposed to idealistic), I don’t think these are arguable. As for thick skinned, well, have you seen the amount of vitriol directed toward her?

              ??
              Brave, able to adjust to new situations.

              Well, I certainly wouldn’t use “brave” as one of the twenty or thirty adjectives I would come up with. More calculating than brave. And Clinton is often faulted for an inability to dynamically adjust.

              On balance, I’d say it’s a fairly accurate list. And your criticism isn’t correct. Instead, you would probably be better off saying that there are traits that you think are omitted (I will leave that to you to fill in).

              1. As for not being brave and failure to dynamically adjust:

                Note her 11 hours of testimony on Benghazi. Trump would have wilted after 15 minutes and stormed out of the room (and of course the Republicans running the committee would not have cited him for contempt). She was tough, brave, and dynamically adjusted to whatever they could throw at her.

                1. She was able to testify!! A Medal of Honor would not be sufficient to reward such bravery.

                  Some advice, look up bravery in the dictionary.

                  1. Some advice, look up the word yourself before you tell others to do so.

                    bravery
                    [brey-vuh-ree, breyv-ree]

                    noun, plural braveries
                    1. brave spirit or conduct; courage; valor

                    If you want to cross-reference:

                    courage
                    [kur-ij, kuhr-]

                    noun
                    1. the quality of mind or spirit that enables a person to face difficulty, danger, pain, etc., without fear; bravery.

                    She was examined for 11 hours straight by politicians?many of them lawyers, many of them hostile to her?for no other purpose than to cause her embarrassment and create controversy for her, and she conducted herself with poise and professionalism. Seems pretty “difficult” to me.

                    By comparison, you can’t even discuss the woman without multiple-exclamation-point-laden histrionics.

          3. The debates where Trump humiliated himself .. .foreshadowing his Presidency?

    5. BOTH tribes are totally corrupt .. and only a shrinking minority prefers either.

      Your own mind-control by Fox, Breitbart and Infowars is on full display!

    6. Some here seem dismayed by our presidents progress toward making this country great again

      Only those who expected any. He greatness HAS increased proven lies up to an average of 5.5 per day for 300 days! But he failed to achieve all of the 50% personal tax cut he campaigned on for himself, so we don’t have a billionaire paying a maximum tax rate of 20% that he wanted — subsidized by the working class he’s screwing over.

      Much of that special break for him did magically appear — out of nowhere — in reconciling the House and Senate tax bills … to buy Corker’s vote. So I’m so impressed by HOW he’s draining the swamp — making it MUCH deeper, rapidly, hoping the dam will collapse. Diabolical.

      MAGA!

      So why does Gingrich write, published by FOX!, that a Democrat wave is coming if his party doesn’t change NOW? Newt Gingrich: My fellow Republicans, a Democratic wave election is coming unless we act right now | Fox News

      And why does the generic ballot show Democrats preferred over Republicans by a staggering margin of 11-20% (various polls)?

      P.S. When it’s offered. do NOT drink the Kool-Aid!

  7. Pres. Trump on Gorsuch: Loyalty And Gratitude Edition”

    1. I saw that. Good timing!!! Trump is SUCH an ass. Kiss his or die.

      I was a consultant/coach to business owners and founders for almost 40 years, and can spot an autocrat at 100 yards. Trump is among the worst of the worst. But he’s good at watching TV for empty praise!

  8. Reading the ABA’s procedures on evaluations, it seems an improvement on Martindale-Hubbell ratings, but not by much. There are lawyers who I know for a fact are chronic f**k-ups who still are rated “AV” by M-H, and good lawyers who have a “B” or no rating. The way to get an AV rating, it seems, is to already know a lot of lawyers. This appears to be a big part of the ABA process too.

    The ABA does review a nominee’s writings, but it is impossible to tell if the briefs were actually written by a nominee or by an associate in his/her law firm, or (if he’s already a judge) by a law secretary. It also reviews trial work, but the plain fact is that most good trial lawyers are not good at writing and their legal knowledge is limited. Few write their own trial memoranda.

  9. Every president gets nominees [especially for district court] rejected by their own party.

    Its almost like internal party politics is involved.

  10. I thought these nominations were victories for the Federalist Society, Heritage, and/or the Cato Institute? Besides taking credit for them, and presumably (but not assuredly) using White House letterhead,what role did the White House play?

    1. Having the sense to delegate judicial selection to the right group. That’s no small thing.

      1. You’re right, remaking our judiciary based on the whims of a private interest group is no small thing.

      2. But I’m certain you’d be equally sanguine if George Soros (!!!) got to select members of our federal bench.

  11. Trump’s appellate nominees have been impressive, and compare favorably in terms of intellect and qualifications with those of any modern President. Among other things, they include a surprising number of legal academics?

    I have trouble reconciling these consecutive sentences.

    1. The writer is an academic. CWRU not withstanding. Anything else?

  12. “Among other things, they include a surprising number of legal academic…”

    *eye-rolling intensifies*

    1. Aw, c’mon. Many of these academics have spent as much as two years as associates writing memorandums of law that no one read.

      Some of them even attended somewhere between one and five depositions. (Sorry)

      1. I miss upvotes.

  13. I think that if President Trump doesn’t want the ABA’s services, he needs some other means of vetting candidates before they reach the Senate.

    There is a big difference between quietly withdrawing a candidate after a background vetting process prior to presentation to the Senate, on the one hand, and having the candidate blow up on national TV during Senate hearings, on the other.

    If Mr. Trump doesn’t trust existing vetting processes, he needs some substitute that will work. There’s a reason why they’re there.

  14. It is hard for me to take commentaries like this very seriously, considering that Trump’s judicial “picks” are more-or-less pulled from a list hand-selected by the very think tanks and academic circles that now commend his “choices.”

    Let’s face it – the only reason that qualified judicial nominees are being appointed is because Trump doesn’t in fact care too much about the judiciary and is happy to outsource the function of selecting judges to people who care more about it than he does. Do you think Trump has any theory of jurisprudence? Any views on originalism vs. living constitutionalism? Do you think he has any idea what strict constructionism is? Please.

    If Trump is picking smart people to staff the judiciary – and that’s a claim I simply don’t have the time to research fully – it’s despite his blatant incompetence. He deserves zero credit.

    1. Wrong. Trump cares very much about the judiciary, especially to the extent that judges infringe on his power.

      Indeed, the main long-term fallout from the travel ban will be that Trump will stay the course on judges.

      1. If you are saying that Trump cares about whether judges will be “loyal” to him, then sure – I don’t think that’s new or going to change.

        But Adler is praising Trump for a judicial record that is exceedingly unlikely to have anything to do with an exercise of judgment by Trump. Trump wouldn’t know a “good judicial pick” from a “bad” one unless the pick got down on his hands and knees and licked his ass.

    2. Let’s face it – the only reason that qualified judicial nominees are being appointed is because Trump doesn’t in fact care too much about the judiciary and is happy to outsource the function of selecting judges to people who care more about it than he does.

      Actually, I see that as showing he does care about it. Effective leaders surround themselves with people who know more about a subject than they do and trust them to do their jobs rather than trying to micromanage details themselves.

      1. Ha! Yes, that seems to be Trump’s management style. Selected competent experts to surround himself…

        Nope. There’s no mystery here. When Trump chooses people himself, the only thing he thinks about is loyalty. Any corrupt kleptocrat that kisses the ring is “in,” anyone with a spine or difference of opinion is “out.” That’s his cabinet, in a nutshell. If the judiciary is doing better, it’s only because he doesn’t give a shit.

        1. Proof positive that Trump Derangement Syndrome is real. You see what you want to see, my friend. Merry Christmas.

          1. Snowflakes, when crushed by the facts, respond one of two ways
            1) Fake News
            2) The OTHER party is deranged.

            Effective leaders surround themselves with people who know more about a subject than they do and trust them to do their jobs rather than trying to micromanage details themselves

            PRECISELY!!!
            (smirk).

  15. With all nominations about to be returned tot he President with the end of the current session of Congress, Trump has the opportunity to cull some of the weaker picks by simply not renominating them.

  16. Trump’s appellate nominees have been impressive,

    Oh yeah. John Bush was a wonderful choice.

    And Leonard Grasz is definitely impressive, though not in the way Adler means.

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