The longest lasting effect of any presidency is the appointment of federal judges and President Donald Trump is filling the federal courts with ideologues, many of whom are unqualified for the bench. Because federal judges have life tenure, Trump has the ability to shape the federal courts for decades to come and many of his picks are deeply disturbing.
There were more than 100 vacancies when Trump assumed office, more than twice the number when President Barack Obama was inaugurated. This is because Republicans had refused to confirm Obama’s nominees during his last two years in office. An additional 60 vacancies have opened in the last 10 months. It is estimated that even if he serves only one term, Trump will have selected about 30 percent of the federal judges in the country.
Of course, every president since George Washington has appointed judges who share his ideology. There is nothing objectionable about that so long as the nominee is qualified and his or her views are not so extreme as to be disqualifying. Presidential elections have consequences and one of them is the power to pick federal judges.
Trump already has nominated 58 individuals to federal court of appeals and district court judgeships. The American Bar Association, an independent and nonpartisan organization, for decades has evaluated federal judicial nominees. It has found four of these nominees to be “unqualified,” something that prior to the Trump presidency had occurred only four times since 1989.
The Republican response has been to attack the American Bar Association and portray it as ideologically motivated. But the facts show that its assessments were based on the merits, not politics.
For example, the American Bar Association unanimously voted Brett J. Talley to be unqualified to be a federal district judge in Alabama. Talley has practiced law for only three years and has no trial experience at all. A federal district court is a trial court and trial-level experience is generally seen as a prerequisite for the position. Three years of experience as a lawyer should be regarded as insufficient for being a judge at any level.
Also, there are serious concerns that Talley misled the Senate Judiciary Committee by omitting crucial information. Each nominee for a federal judgeship is asked to complete a questionnaire that includes a request to identify family members and others who are “likely to present potential conflicts of interest.” Talley did not mention that he is married to Ann Donaldson, the chief of staff to the White House counsel, Donald F. McGahn II. The White House counsel’s office plays a key role in vetting potential judicial nominees.
The American Bar Association also unanimously gave a “no qualified” rating to L. Steven Grasz, who has been nominated for the United States Court of Appeals for the 8th Circuit. Judicial temperament is of great importance and Grasz has been described as consistently “gratuitously rude.” He has expressed extreme views on abortion, including that the Supreme Court’s decisions are just “word games” that don’t need to be followed.
The American Bar Association even has given “qualified” ratings to those whose views should be disqualifying. Jeff Mateer, who was nominated to be a federal judge in the Eastern District of Texas, said that parents suing on behalf of their transgender children “really shows you how Satan’s plan is working and the destruction that’s going on.” In the same speech, he said regarding same-sex marriage that “there’ll be no line there…. I mean, it’s disgusting.... Somebody wanted to marry a tree. People marrying their pets.” A judicial nominee who made statements like these about people of other races unquestionably would be deemed unqualified.
Moreover, just last week, Sen. Charles Grassley, chair of the Senate Judiciary Committee, indicated that he will be discarding a key check in the judicial confirmation process. For more than 100 years, the Judiciary Committee has refused to consider a judicial nominee unless both senators from the nominee’s state return a “blue slip.” But last week, Grassley announced that the Judiciary Committee is going forward with hearings on two nominees for federal court of appeals judgeships, one from Minnesota and one from Louisiana, for which the home-state senators (one a Republican) did not turn in blue slips.
So far the votes in the Senate Judiciary Committee on controversial nominees have been exactly split on party lines. My hope is that a few Republican senators will set aside partisanship and join with the Democrats to block the confirmation of unqualified judges. The future of the federal judiciary depends on it.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at firstname.lastname@example.org.