The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 Peterson's was the third judicial nomination to be withdrawn this month, as two other nominations were pulled from consideration last week.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.]