After an unbroken streak winning confirmations in the Republican Senate, the White House has jettisoned two of President Donald Trump’s nominees for the federal bench.
The president has dropped the nominations of Brett Talley to a district court spot in Alabama and Jeff Mateer to a district court post in Texas, the White House said Wednesday.
The announcement came after criticism of both men’s bids by Judiciary Committee Chairman Sen. Charles Grassley, R-Iowa. Grassley said Wednesday both nominations were dead in the Senate. He said in an interview with CNN on Tuesday he told the White House as much.
Talley, a sometimes horror novelist and ghost hunter, has practiced law for only three years and has never tried a case. BuzzFeed uncovered hundreds of posts he apparently made on an Alabama sports website, some of which defended the early KKK, disparaged Muslims, criticized Roe v. Wade and mocked marriage equality. He also failed to tell senators he is married to Ann Donaldson, the chief of staff to the White House counsel. He received a rare “unanimously unqualified” rating from the American Bar Association.
Mateer has described transgender children as evidence of “Satan’s plan,” dismissed same-sex marriage as “debauchery” and argued some kinds of discrimination are legal, including on the basis of sexual orientation.
Trump so far has had tremendous success in filling judicial openings, including the confirmation of Supreme Court Justice Neil Gorsuch. Senate Republicans are confirming nominees quickly, knowing it is a priority for conservative voters. They previously rubber stamped every nominee the president offered, even eliminating the “blue slip” rule that allowed home-state senators to object to troublesome nominees, a decision Grassley defended in these pages.
There were 103 judicial vacancies when Trump took office, an unusually large number because Senate Republicans dragged their feet on confirming Barack Obama’s nominees. In the first nine months Obama was in office, he nominated 20 judges to federal trial and appellate courts. Trump has named 58 in his first nine months.
On Wednesday, the Senate voted 50-47 to confirm Don Willett, a justice on the Texas Supreme Court, to serve on the U.S. Court of Appeals for the Fifth Circuit. Willett was the 11th federal appeals court judge to be confirmed this year, and another is expected any day.
Obama had three appellate judges approved in his first year.
Trump’s nominees have been about 90 percent white, 80 percent male and 100 percent conservative. Many of them are younger than the average appointee in previous administrations, and those lifetime appointments will drastically change the makeup of federal judiciary for a generation to come.
“We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump promised during a June 2016 interview on Breitbart News radio.
The Federalist Society is an organization of conservatives and libertarians seeking to shape the U.S. legal system in accordance with an originalist interpretation of the U.S. Constitution.
Those confirmations include Leonard Steven Grasz to serve on the 8th U.S. Circuit Court of Appeals, approved Tuesday on a party-line vote of 50-48. The Nebraskan also had received a unanimous “not qualified” rating from the ABA.
So far, the ABA has rated 57 of Trump’s nominees, 53 as “well qualified” or “qualified.” Four have been considered “not qualified.”
According to the Associated Press, The Congressional Research Service said the number of nominees who received a “not qualified” rating has ranged from a high of nine nominees during the Eisenhower presidency to no nominees who received such a rating during the presidencies of Richard Nixon, Ronald Reagan, George H.W. Bush and Obama.
Prior to Obama, George W. Bush had seven nominees rated as not qualified; Bill Clinton had four.
Republicans have dismissed the ABA as a partisan interest group and described its rating as a “hit job.”
Democrats respond Republicans are adopting the Trump playbook: “If you don’t like the message, shoot the messenger,” said Senate Minority Leader Chuck Schumer, D-N.Y.
But Grassley’s objections to the nominees rejected last week may indicate GOP senators intend to apply a greater level of scrutiny to the president’s judicial selections going forward.
That would be welcome. As president, Trump has every right to nominate judges who reflect his political philosophy. And the Senate has an obligation to fulfill its constitutional role and offer its “advice and consent” on those nominations, ensuring only truly qualified individuals are allowed to ascend to such powerful posts.