Will the rejections of Trump’s judicial picks mean anything?

The Rejections of Trump’s Judicial Picks Are Not As Reassuring As They Seem

The Rejections of Trump’s Judicial Picks Are Not As Reassuring As They Seem

The law, lawyers, and the court.
Dec. 20 2017 1:43 PM

Too Bad for the Bench

Finally, the Senate is shooting down Trump’s lousy judicial picks. Is this the end of the administration’s crusade to stack the bench?

Republican Sen. John Kennedy listens to testimony during a Senate Judiciary Committee hearing concerning firearm-accessory regulation on Capitol Hill on Dec. 6.

Drew Angerer/Getty Images

This month, Donald Trump’s seemingly unstoppable judicial juggernaut—in his first year in office, he has pushed through a record-breaking number of federal judges with lifetime appointments—ran into either a tiny speed bump or a brick wall. First, the White House announced it would not move forward with the nominations of two spectacularly unqualified nominees. One of those, Brett Talley, has never tried a case and appears to have defended the “early KKK.” The other, Jeff Mateer, has referred to transgender children as a part of “Satan’s plan” and said same-sex marriage is “disgusting” and akin to polygamy and bestiality. The two were young, inexperienced and not suited to sit through a hearing, much less be confirmed to the judicial bench.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

And then came Matthew Petersen, Trump’s pick for another federal court. Petersen’s ritual humiliation at the hands of Republican Sen. John Kennedy went viral last week, as he failed to answer questions that any vigilant watcher of Law & Order could have known or at least studied for. Petersen came to stand for the proposition that Trump’s judicial picks, like most of his administration, are a bunch of cronies who’ve been deliberately selected because they have contempt for the very positions they’re seeking.


Petersen withdrew his own nomination this past weekend, telling the president that his performance was “a continued distraction from the important work of your administration and the Senate.” Instead of allowing him to slink off in silence, a White House spokesperson took a potshot at Kennedy, claiming that “it is no surprise the President’s opponents keep trying to distract from the record-setting success the President has had on judicial nominations, which includes a Supreme Court justice and 12 outstanding circuit judges in his first year.”

Of course, Sen. Kennedy is not the president’s opponent. He has already rubber-stamped multiple unfit judges, including Trump’s nominee for the 6th U.S. Circuit Court of Appeals, anti-gay blogger John K. Bush, who was no more deserving of office than Petersen. At Bush’s hearing, Kennedy shook his head and said, “Mr. Bush, I’ve read your blogs. I’m not impressed.” Then he voted to confirm. But Kennedy seems to be hardening his heart toward the most juvenile of the Trump nominees, as is evidenced by his repeated questioning of subsequent nominees to determine whether any of them are fans of the KKK or bloggers. And Kennedy is also clearly involved in a protracted shame-off with White House counsel Don McGahn, who stupidly cut him out of the vetting process for a 5th Circuit nominee and has lived to regret it.

The lesson of this latest screw-up, and the many other unforced errors that have beset an administration that controls both houses of Congress yet cannot stop alienating its allies, is that there is never time for 20 minutes’ sober reflection when one can do things sloppily and poorly in five. The entire project of stacking the bench, largely outsourced to the Federalist Society and the Heritage Foundation, could have resulted in prominent originalist thinkers being tagged for the courts. Instead, it has devolved into far-right groups selecting far-right loyalists, ignoring the Senate, and shattering the pretense that either the courts or the legislative branch have any regard for judges and law.

As David Graham summarizes it, “What happens when a White House gets rushed or lazy? It starts picking political hacks, or people with more political connections than experience.” All three of Talley, Mateer, and Petersen are young and zealous foot soldiers. They fit President Trump’s reported preferences for judicial picks: young, conservative, and “not weak.” Now, we’re learning that those qualities are necessary but not sufficient for the entirety of the GOP Senate.


The White House is nevertheless crashing onward, confident that even if a handful of their nominees are garbage, the Trump judges that do squeeze through the vetting process will still fundamentally reshape the judicial branch. As an unnamed GOP strategist told the Washington Post, “McGahn got caught with his fingers in the jar trying to slip his buddies in there, but they’re playing for averages—so you got 12 done and missed on two. So what?”

The only way these unforced errors could have any lasting consequences is if they erode the trust of Senate Republicans, who might start to take the obligations of advise and consent to heart. To this point, the vast majority of the GOP appears to see the administration’s smash-and-grabbiness over the bench as part of the larger project of the Trump era. But we have now seen Senate Judiciary Committee Chair Chuck Grassley pantsed by the White House, which apparently didn’t fully vet Mateer and Talley and left Grassley looking silly. Before that, Sen. John Cornyn was publicly embarrassed when it became clear he hadn’t been given the full record for Talley and Mateer: As Cornyn later said, “We requested that sort of information about speeches and the like on his application … and to my knowledge there was no information given about those, so it’s fair to say I was surprised.” And now we have Sen. Kennedy snarking about Petersen, “Just because you’ve seen My Cousin Vinny doesn’t qualify you to be a federal judge.”

Maybe the worst of the screw-ups are behind us. It’s not that hard to get Senate Republicans lined up, and it’s clear that the White House only harms itself when it doesn’t take the minimal steps to flatter and pander. The president himself reportedly attempted to smooth the waters by calling Sen. Kennedy over the weekend, telling him to keep scrutinizing potential judges. Maybe that’s all the course correction needed.

But if nothing else, the events of the past weeks show that someone, somewhere, should be looking at judicial picks. Senate Republicans have stacked nominations in such a way that vetting is all but impossible, scheduling hearings for multiple nominees in a single day, putting packs of them up in panels, and allowing just a few minutes for questioning. They have all but done away with American Bar Association review and the blue slip, both processes that allowed senators to get minimal local feedback from lawyers who actually know something about the nominees. It is now an article of faith that Donald Trump is incapable of being shamed. It’s also the case that GOP senators tend to profess outrage at Trump’s actions and then do whatever he wants them to do anyway. Refusing to confirm a handful of nakedly unqualified judges shouldn’t count as sterling bravery. Sadly, it’s all Democrats have to rely upon now.

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