Inside Trump’s historic push to alter bench
Trio of failures sheds light on rush to vet conservatives
WASHINGTON — The collapse of three of President Donald Trump’s judicial nominations in the span of a week has embarrassed the White House, revealed weaknesses in its vetting process and threatened to cause Senate Republicans to apply more scrutiny to the president’s picks.
In their push to fill scores of vacancies on federal circuit and district courts at the historic pace demanded by Trump, White House officials have overlooked vulnerabilities in the backgrounds of some of the president’s nominees. Critics allege that White House counsel Donald McGahn, who is overseeing the process, has sacrificed traditional qualifications for ideological purity and youth.
But the downfalls of three nominees — Jeff Mateer, Matthew Petersen and Brett Talley — are also aberrations in what has been a quiet yet undeniable success for Trump: a yearlong drive to alter the judiciary by nominating and confirming conservative jurists to lifetime appointments on the federal bench.
Trump has told advisers that he is focused on three main criteria: that his nominees be young (in most cases under 50, and preferably under 40), conservative and strict constitutionalists.
“He clearly understands that this is going to be one of his enduring legacies,” said Leonard Leo, a Trump adviser on judges and the executive vice president of the Federalist Society. “He is excited about how many more judges he’s going to get to pick. He likes to know the statistics, the facts and figures.”
Trump has nominated 59 people for federal judgeships. Among them, 19 have been confirmed by the Republican-controlled Senate: Justice Neil Gorsuch to the Supreme Court, 12 circuit court judges and six district court judges.
“President Trump’s judicial appointments have been one of the most prominent accomplishments of the year, and for decades to come Justice Neil Gorsuch will put his mark on America’s jurisprudence,” said Kellyanne Conway, counselor to the president.
Remaking the judiciary is arguably the most ideological project of Trump’s presidency. The campaign to fill court vacancies has been led by McGahn, who has roots in the conservative movement, and he has a willing partner in Senate Majority Leader Mitch McConnell, R-Ky.
The push has support from conservative activists who helped propel Trump to victory in last year’s election as well as other Republicans who are critical of the president in other areas.
“It’s one of the major pillars of a successful presidency, because it has an impact on the country for 30 or 40 years and it’s embraced by both economic conservatives and social conservatives, so it’s a win-win,” said Scott Reed, chief strategist for the U.S. Chamber of Commerce.
The effort has been marred by three recent high-profile failures.
Mateer was forced to withdraw when it was discovered he had said in 2015 that transgender children are part of “Satan’s plan.”
Talley had his nomination fall apart after he was reported to have posted a defense of “the first KKK” in an online comment in 2011 and because he failed to disclose a conflict of interest: His wife, Ann Donaldson, works for McGahn as chief of staff in the White House Counsel’s Office.
Then there is Petersen, who also is close to McGahn, having worked with him on the Federal Election Commission. Petersen withdrew Monday after being publicly humiliated by a viral video showing him struggling to answer basic questions about legal procedure in his Senate confirmation hearing.
“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?” said one Republican strategist close to the White House, who spoke on the condition of anonymity.
This month’s trio of failures could alter the dynamic in the Senate, where many of Trump’s nominees have sailed through.
“I’ve heard some of my colleagues question whether the administration will make them walk the plank again for nominees who are so obviously and disastrously unqualified,” said Sen. Richard Blumenthal, D-Conn., who sits on the Senate Judiciary Committee.
Four of Trump’s nominees have been judged by the standing committee of the American Bar Association to be “not qualified.” By comparison, no nominee received that rating from the ABA during President Barack Obama’s first two years in office.
Trump’s aides criticize the association’s process.
Nan Aron, president of the Alliance for Justice, a liberal advocacy group, said the failures should be “a wake-up call.”
“The fact that three now are out signifies I think something important about the cumulative impact of a string of wholly unsuitable judicial candidates,” Aron said. “Finally senators are saying, ‘Enough is enough.’ ”
While the White House has suffered from disorganization in some areas, the judicial nominee process has been relatively efficient.
Trump’s sister, Maryanne Trump Barry, is a senior judge on the 3rd Circuit Court of Appeals. But despite his lineage, Trump has given McGahn almost unilateral authority to run his nominations process.
McGahn and his staff curate lists of names that have been developed with input from Vice President Mike Pence, Conway and what one adviser called the “conservative illuminati,” including Leo, lawyer Chuck Cooper and some key GOP senators, including McConnell and Tom Cotton of Arkansas.
For instance, Pence pushed for Amy Coney Barrett on the 7th Circuit Court of Appeals and Don Willett on the 5th Circuit Court of Appeals, who were confirmed.
“It’s been a machine,” said Ilya Shapiro, a senior fellow at the Cato Institute, who has been helping McGahn identify nominees. “There’s been a concerted push to find people with paper trails showing dedication and intellectual commitment to originalism and textualism, rather than simply someone who you think might be a loyal Republican or otherwise checks certain partisan boxes.”
In a recent meeting with Christian conservative activists, Trump praised McConnell for having blocked so many of Obama’s nominees to preserve vacancies.
“I gotta hand it to him,” Trumped quipped, according to someone in the room. “When I walked into the Oval Office on the first day, there were over 100 judgeships waiting for me.”