Judge trou­ble for a fa­mil­iar Vir­ginia name

Richmond Times-Dispatch Weekend - - COMMENTARY & BUSINESS - Jeff E. Schapiro [email protected]­Dis­patch.com

Thomas Cullen is a young man in a hurry. But maybe he’s tap­ping the brakes.

Cullen is chief fed­eral pros­e­cu­tor for the west­ern half of Vir­ginia. He has been in that of­fice for 17 months, since March 2018.

Don­ald Trump, rac­ing to tilt the ju­di­ciary to the right ahead of an un­cer­tain re-elec­tion cam­paign, might have an­other job in mind for Cullen: a U.S. District Court judge­ship, open nearly two years.

How­ever, the state’s Demo­cratic

U.S. se­na­tors, Mark Warner and Tim Kaine, have their own ideas about who the next fed­eral trial judge in Vir­ginia should be and how that per­son is se­lected.

Warner and Kaine, who fa­vored Cullen for pros­e­cu­tor, have a pro­ce­dural weapon with which to work their will.

It is a nuclear op­tion, of sorts.

It is one of which Cullen pre­sum­ably is aware and would likely want to avoid — lest it tar­nish a ca­reer that, by most mea­sures, is im­pres­sive.

Maybe that ex­plains Cullen’s near-si­lence.

Cullen, born to a cen­ter­right but po­lit­i­cally dex­ter­ous fam­ily whose lattice of ties in­cludes a di­rect line to the Trump ad­min­is­tra­tion, told The Roanoke Times he’s con­cen­trat­ing on be­ing the U.S.

At­tor­ney for the West­ern District of Vir­ginia — “the high­light of my ca­reer.”

This would not be the first time the White House has been cross­wise with a Vir­ginia se­na­tor over a ju­di­cial nom­i­na­tion. It has happened at least twice over the past 39 years.

In both in­stances, a Vir­ginia se­na­tor pre­vailed.

In the 1980s, Harry F. Byrd Jr., an in­de­pen­dent, and John W. Warner, a Repub­li­can, clashed with Demo­cratic and Repub­li­can pres­i­dents, re­spec­tively, over nom­i­nees for the district court and the Rich­mond­based 4th U.S. Cir­cuit Court of Ap­peals.

Byrd de­railed for the U.S. District Court Jim Sheffield, whom Jimmy Carter fa­vored over candidates rec­om­mended by a Byrd-ap­pointed com­mis­sion. Sheffield, a Rich­mond Cir­cuit Court judge, would have been the first African Amer­i­can in the Eastern District, which spans from Alexan­dria to Rich­mond to Nor­folk.

Warner re­sisted Ron­ald Rea­gan over picks for the 4th Cir­cuit un­til the pres­i­dent con­sented to nom­i­nate a Vir­ginian, Jay Wilkin­son, a for­mer Jus­tice De­part­ment lawyer and con­ser­va­tive ed­i­to­ri­al­ist.

Nei­ther tus­sle was pretty, playing out in the news­pa­pers and on tele­vi­sion.

That could oc­cur again, mov­ing faster — per­haps be­com­ing more vi­cious — be­cause of the ac­cel­er­ants of ca­ble news and so­cial me­dia, pre­ferred plat­forms of a pres­i­dent who breaks the rules.

And who is break­ing the rules again by float­ing Cullen’s name.

Pres­i­dents typ­i­cally se­lect ju­di­cial nom­i­nees from lists of candidates pro­vided by se­na­tors from states where there are va­can­cies. The practice can de­mand co­op­er­a­tion and comity be­tween pres­i­dents and se­na­tors who or­di­nar­ily do not get along.

That is usu­ally the case with Trump, Warner and Kaine.

Vir­ginia is the only South­ern state Trump failed to carry in 2016 against Hil­lary Clin­ton, though the ru­ral west — Cullen’s ter­ri­tory, where he has fo­cused on the opi­oid epi­demic, il­le­gal im­mi­gra­tion and vi­o­lent white su­prem­a­cists — is Trump coun­try.

As the top Demo­crat on the Se­nate In­tel­li­gence Com­mit­tee, Warner — run­ning for a third term next year — is a fre­quent tor­men­tor of Trump. This has oc­ca­sion­ally landed Warner in Trump’s Twitter cross hairs. Ditto Kaine.

As the Demo­cratic vice-pres­i­den­tial nom­i­nee, Kaine would mock Trump when he wasn’t be­lit­tling his run­ning mate, Mike Pence, who — as the Rus­sian med­dling in­ves­ti­ga­tion be­gan boil­ing — hired as his lawyer Cullen’s renowned fix­er­fa­ther, Richard.

Such com­pli­ca­tions notwith­stand­ing, Warner, Kaine and the ad­min­is­tra­tion have suc­cess­fully done busi­ness on ju­di­cial nom­i­na­tions, most re­cently that of Rossie Al­ston.

A con­ser­va­tive and for­mer state ap­peals court judge, Al­ston is now on the U.S. District Court in the Eastern District.

The judge­ship for which Cullen is men­tioned has been va­cant since De­cem­ber 2017, when Glen Con­rad, a nom­i­nee of George W. Bush, an­nounced he was tak­ing semi-re­tire­ment.

Warner and Kaine sought candidates, urged their thor­ough screen­ing by lawyers or­ga­ni­za­tions and oth­ers. From that very typ­i­cal process emerged two rec­om­men­da­tions, Robert Bal­lou, a fed­eral mag­is­trate judge in Roanoke, and Judge John Kil­gore of the Scott County Cir­cuit Court.

But a funny thing happened on the way to a nom­i­na­tion: Chatter in political and le­gal cir­cles in­di­cated Cullen would be con­sid­ered by Trump over Bal­lou and Kil­gore.

That an­noyed Warner and Kaine, whose — pun un­in­tended — ju­di­cious pub­lic re­sponse hinted at trou­ble for Cullen, who was not vet­ted. The se­na­tors said they “were dis­ap­pointed that the White House is not mov­ing for­ward” on Bal­lou or Kil­gore.

It’s what the Democrats didn’t say that’s im­por­tant.

Would they block Cullen in­def­i­nitely, re­quest­ing a hold, also known as a “blue slip” for the color pa­per on which it is printed?

Not even the Repub­li­can chair­man of the Ju­di­ciary Com­mit­tee, Lindsey Gra­ham of South Carolina, would ob­ject. He has said he will rec­og­nize such nom­i­na­tion-killing de­lays.

Strange bed­fel­lows, in­deed.


U.S. At­tor­ney Thomas T. Cullen an­nounced a 30-count in­dict­ment in the mur­der case of Heather Heyer in Char­lottesvill­e in 2018.

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