President Trump set record with appeals judge appointees, but some setbacks with district judge nominees

This week, Trump’s judicial nominees have hit some road bumps.

ByABC News
December 16, 2017, 12:27 AM

— -- With the confirmation of a 12th circuit court judge Thursday, President Donald Trump set a record Thursday for the most appellate judges confirmed in a president’s first year in office.

The latest confirmation was former Texas Solicitor General James Ho, whom the Senate confirmed 53-43 to serve the 5th Circuit Court of Appeals.

Ho's confirmation brings Trump's total number of confirmed federal judges to 19, including conservative Supreme Court Justice Neil Gorsuch.

Here's the breakdown of Trump's judicial nominees:

- 19 federal judges confirmed (one Supreme Court justice, 12 circuit court judges, six district court judges)

- 142 vacancies

- 41 nominees pending

An Associated Press analysis found that of Trump's nominees, about three-fourths are white men.

This week, Trump’s judicial nominees hit some road bumps.

Republican Sen. John Kennedy of Louisiana grilled one of President Donald Trump's nominees for a federal judgeship for several minutes on Wednesday, highlighting the nominee's apparent inability to answer questions about basic legal procedure.

For five minutes during a Senate Judiciary Committee hearing, Kennedy probed Matthew Spencer Petersen, Trump’s nominee for US District Court for Washington, D.C. about his experience working on trials.

Democratic Sen. Sheldon Whitehouse of Rhode Island tweeted out the video on his Twitter account Thursday night, which has garnered over 5 million views as of Friday night.

Of the five nominees that appeared before the committee, Petersen raised his hand as the only one who has not tried a case to verdict.

Kennedy then zeroed in on Petersen, a Federal Election Commissioner who practiced election law at Wiley Rein & Fielding in D.C.

During his testimony, Petersen acknowledged that he has never tried a jury trial, a civil or criminal trial, bench trial, state or federal court trial. He was involved in less than five depositions as an associate fresh out of law school and never any by himself. He has never argued a motion in state or federal court.

"When's the last time you read the federal civil rules of procedure?" Kennedy asked, one of a series of questions he lobbed at Petersen.

"In my current position, I obviously don't need to stay as invested in those on a day to day basis, but I do try to stay up to speed," Petersen replied, defending his inability to answer questions by saying his "background was not in litigation," though that is what his role as a district judge will require.

He fails to explain the “Daubert Standard,” a rule for using expert witness in court: “I don’t have that readily at my disposal, but I would be happy to take a closer look at that,” he said.

Petersen's testimony came on the heels of another Trump judicial nominee, Leonard Grasz, who the Senate narrowly confirmed on Tuesday to the 8th Circuit Court of Appeals, despite a "not qualified" rating from the American Bar Association. Grasz is one of four Trump nominees the ABA deemed “not qualified" - Charles Goodwin for the Western District of Oklahoma, who was also at Wednesday's hearing alongside Petersen, Holly Teeter for the District of Kansas, and Brett Talley for the Middle District of Alabama.

The White House withdrew Talley from consideration for a district judge position in Alabama on Wednesday.

Talley had never tried a case on top of being found unqualified by the ABA. He also did not disclose he was married to the chief of staff to White House counsel Don McGahn, The New York Times reported. He also appeared to have defended “the first KKK” in an online post he wrote in 2011, Slate reported.

Along with Talley, the White House also withdrew the nomination of Jeff Mateer, who was tapped to be a district judge in Texas. A CNN report unearthed a speech Mateer gave in 2015 in which he refers to transgender children as evidence of “Satan’s plan” in a speech he gave in 2015.

"I've advised the White House they ought to reconsider. I would advise the White House not to proceed," Grassley told CNN Tuesday before their nominations were pulled.

The top Democrat on the Senate Judiciary Committee, Sen Dianne Feinstein, D-Calif., said in a statement that the “speed at which these judges are being rammed through the process is stunning.”

She argued that the administration may have not had to withdraw Talley and Mateer’s nomination “if we had sufficient time and cooperation to fully review these nominees.”

After the revelations about Talley’s past, Kennedy argued, according to The Advocate, that Trump is getting “some very, very bad advice” on judicial nominees. Only a first term senator, Kennedy has stuck out as a Republican who’s been tough on Trump’s judicial picks.

In response to his tough questioning of Petersen, Kennedy said in a statement he’s “just doing his job” in asking questions he expects nominees to be able to answer.

“I enthusiastically supported President Trump for president, and I still do. In the past year, I have supported nearly every one of President Trump’s picks, but I don’t blindly support them,” Kennedy said in statement provided to ABC News. “I ask questions that I expect them to be able to answer. In doing so, I’m just doing my job. That’s why we have a Madisonian-inspired separation of powers. We need checks and balances so that we can serve the American people well.”

The exchange was notable, legal experts say.

"It's quite unusual for the president to encounter this sort of pushback on lower court nominees from members of his own party," said ABC Supreme Court contributor and former Obama White House lawyer Kate Shaw. "That said, some of these nominees do break the mold in terms of the thinness of their relevant experience."

The White House on Friday said they continue to have confidence in Petersen.

"Peterson has spent nearly a decade as a commissioner of an important regulatory agency overseeing regulatory issues — the very kinds of issues the district court in DC decides," White House Deputy Press Secretary Hogan Gidley said. "It's not surprising that the president's political opponents and some members of the media keep trying to distract from the record-setting success that the president has had on judicial nominations."

He has been the only GOP senator to vote against confirming one of Trump’s nominees - Greg Katsas, who previously served as deputy White House counsel.

Kennedy’s main qualm with Katsas sitting as a U.S. circuit judge for Washington, D.C. was an “appearance of a conflict if on one day he’s representing the president and the next day he’s on the D.C. Circuit deciding cases in which the president is a party,” he told The Advocate.

In Nov., Kennedy had told Politico he would vote against Talley in a heartbeat.

Kennedy also hesitated to support Kyle Duncan, a nominee to be a U.S. circuit judge for the 5th Circuit, and faced pressure from conservative groups, like Judicial Crisis Network and Tea Party Patriots Citizens Fund, as a result.

“Senator Kennedy should immediately let the people of Louisiana know whether he joins them in supporting President Trump and his exceptional judicial nominees, or if he stands with liberal Democrats doing everything they can to resist the President.” Tea Party Patriots Citizens Fund Chairman Jenny Beth Martin said in Nov. 29 statement.

After Duncan’s nomination hearing, Kennedy eventually decided he would vote in favor of confirming Duncan.