WASHINGTON (CN) – The Senate Judiciary Committee on Thursday advanced the nominations of 44 of President Donald Trump’s judicial nominees, resuming the efforts of the Republican-controlled Senate to stock the federal judiciary with Trump selections.
Of the 44 judges the committee approved on Wednesday, 19 received approval in the last Congress, but were not confirmed before the end of the year. As is Senate practice, all nominees who were not approved were sent back to the White House and Trump eventually chose to renominate many of them last month.
Among the 25 who received approval for the first time, six are up for seats on federal appeals courts, including two nominees each to the Sixth and Ninth Circuits, as well as one to the Third Circuit and one to the Fourth Circuit.
Allison Jones Rushing, a partner at the Washington, D.C. firm Williams Connolly who is up for the Fourth Circuit position, faced questions from senators about her experience and associations with the Alliance Defending Freedom, which has been labeled an anti-gay hate group by the Southern Poverty Law Center.
Rushing has only been practicing law since 2009, having joined the firm after clerking for Supreme Court Justice Clarence Thomas. Rushing also clerked for then-10th Circuit Judge Neil Gorsuch and D.C. Circuit Judge David Sentelle, spending a year at Williams Connolly as an associate before taking the clerkship with Thomas.
The American Bar Association’s Standing Committee on the Federal Judiciary typically recommends nominees have 12 years of experience as a lawyer before taking the bench, but gave Rushing a qualified rating nevertheless.
When asked about her experience in response to questions submitted in writing after her nomination hearing, Rushing said her practice at Williams Connolly has given her extensive experience that will serve her well on the appeals court, including filing more than 45 briefs to the Supreme Court and working on 50 appeals in various courts.
“I have litigated a wide variety of cases that reflects the variety of subjects that come before the court of appeals,” Rushing wrote. “For example, I have handled criminal cases and prisoner litigation, cases under the bankruptcy and tax laws, intellectual property, products liability, commercial litigation, qui tam actions, proceeding under various federal statutes and constitutional issues.”
She also cited letters of support from the partners at her firm and from people with whom she clerked on the Supreme Court.
Rushing was a legal intern at the Alliance Defense Fund, later renamed the Alliance Defending Freedom, in the summer of 2005 and told the committee she has since given speeches to the group’s interns about their careers.
She disagreed with the characterization of the organization as a hate group, telling the committee that multiple Alliance Defending Freedom alumni have gone on to prominent careers, including some members of the committee. She said during her time at the organization she did not see “anyone expressing or advocating hate.”
“I do not think members of this committee or large reputable law firms would work with a hate group,” Rushing wrote. “I certainly would not.”
Rushing’s nomination headed to the Senate floor after a 12-10 party-line vote.
Eric Miller, who is up for a seat on the Ninth Circuit, also faced questions about his legal practice, which has included a number of cases in which he has gone against Native American tribes in court.
The National Congress of American Indians and the Native American Rights Fund have opposed Miller’s nomination, approving a resolution in October accusing him of building his career “on mounting repeated challenges to tribal sovereignty, lands, religious freedom and the core attribute of federal recognition of tribal existence.”
In response to questions submitted after his first nomination hearing, Miller said cases involving tribal rights represent only “a small fraction” of his litigation work. A partner at the Seattle firm Perkins Coie and former assistant to the solicitor general, Miller also noted at his nomination hearing in October that he has worked on cases of both sides of the argument.
He also said he was working as an advocate for a client, not to advance a personal agenda, when he took legal positions in court.
“In any of those cases, whether with the government on the side of the tribes or in private practice in a number of cases opposed to tribes, my role has been that of an advocate,” Miller said in October. “My job as an advocate is not to advance my own views, but to advance the client’s views and to do the most that I can within the bounds of the law to zealously achieve the client’s interests and that’s what I have done.”
Miller, Third Circuit nominee Paul Matey and Sixth Circuit nominees Eric Murphy and Chad Readler were also the subject of controversy because their home-state senators have not signed off on their nominations.
Each of these nominees was approved in a 12-10 party-line vote.
Under the tradition known as the blue slip, both of a nominee’s home-state senators must give their consent before a nominee goes forward in the nomination process. The policy is enforced by the chair of the Senate Judiciary Committee and chairs have used it differently in different administrations.
Senator Lindsey Graham, the South Carolina Republican who now chairs the committee, has said he will continue the policy of his predecessor, Senator Chuck Grassley, R-Iowa, and require the blue slip for federal district court nominees, but not for circuit court nominees so long as the White House at least consulted with the senators.
Graham said Thursday the blue slip was not meant to allow a single senator to effectively veto a nominee. He also said he would work with the White House to ensure home-state senators at least can give their opinions on the nominees.
Democrats warned, however, that handling the blue slip in this manner will effectively do away with the practice of having seats on appeals courts reserved for nominees from specific states.
“We haven’t thought this through because we’re so eager to move these judges that we’re willing to break down the blue slip,” Senator Sheldon Whitehouse, D-R.I., said. “But if you’ve got no blue slip, you’ve got nothing that says that there is such a thing as your home state seat on your circuit.”
Graham said he regrets the current state of the fight over judicial nominations, but that the nomination process changed irreversibly in 2013 when Democrats did away with filibuster rules for certain judicial nominees.
“I regret it, I don’t know what to do about it, but I’m not going to let the blue slip at the circuit court level be a veto,” Graham said.
He even suggested that he might propose a resolution to bring back the filibuster for judicial nominees beginning with the next president.
Senator Cory Booker, D-N.J., had particular objections to the White House’s handling of Matey’s nomination, saying he has not even met with the nominee. Contrary to Grassley’s determinations last year, Booker said the White House did not give him a real chance to weigh in on the nominee from the state he represents.
Matey works as a partner at the Roseland, N.J., firm Lowenstein Sandler and served as counsel to former New Jersey Governor Chris Christie from 2010 to 2015. As a result of his work in Christie’s administration, Matey faced questions about his knowledge of the various scandals that plagued the governor.
He consistently told senators he was neither involved in nor aware of the scandals before they became public and that he made efforts to put in place “rigorous” ethical standards in the office.
Aside from the blue slip fight, Murphy, the Sixth Circuit nominee, also faced questions about positions he took in court while serving as state solicitor of Ohio, a job he has held since 2013. In the position, Murphy has filed briefs in a number of high-profile court fights, including some before the Supreme Court.
Murphy filed the brief defending Ohio’s ban on same-sex marriage in the landmark case Obergefell v. Hodges. The justices disagreed with Murphy’s arguments and issued a decision that legalized gay marriage across the country.
He also argued last year before the Supreme Court in defense of Ohio’s method of purging its voter rolls and has filed additional briefs for the state weighing in on subjects from abortion to gun rights to the environment.
Democrats raised concerns about his litigation positions, but Senator Mike Lee, R-Utah, came to his defense, saying the positions he took in court on behalf of a client should not be taken as his preference for what the law should be.
“Unless you’re willing to say that any time there is at issue a law trying to protect the integrity of a state’s voting system that any lawyer who represents a state is somehow voting to restrict the voting rights of minorities or of any group of Americans, I don’t see how that can possibly be a fair characterization,” Lee said Thursday.
Similar concerns followed Readler, also a nominee to the Sixth Circuit. Readler took over as acting assistant attorney general for the Justice Department’s Civil Division in 2017, having spent the previous two decades at the Columbus, Ohio office of the law firm Jones Day.
Readler faced questions about the Justice Department’s decisions to file briefs in several high-profile court fights, including in a state-led constitutional challenge to the federal health care law. In a filing in the case, the Trump administration said the pre-existing coverage requirements in the Patient Protection and Affordable Care Act, better known as Obamacare, should be struck down if the court were to find the law’s individual mandate unconstitutional.
He also submitted briefs supporting the Trump administration’s ban on transgender people serving in the military and in its attempts to overturn an injunction against an Obama administration policy giving protections from deportation to people in the country illegally who were brought to the United States as children.
Senator Sherrod Brown, D-Ohio, opposed both Readler and Murphy based on their litigation backgrounds and said the White House did not listen to his alternative proposals.
Both nominees were approved on a 12-10 party-line vote.
Ninth Circuit nominee Bridget Bade of Arizona was clear of blue slip concerns and was the least controversial circuit court nominee approved Thursday. Bade has served as a magistrate judge on the U.S. District Court for the District of Arizona since 2012 and previously worked as a prosecutor in the state.
Bade received approval in a 17-5 vote Thursday.
Many of the nominees to lower courts faced opposition from Democrats and cleared the committee on 12-10 party-line votes. Others, however, received little or no opposition.
All of the nominees the committee approved on Thursday now go to the Senate floor, where they await confirmation votes. With a solid Republican majority in the Senate, all of the nominees are on track for confirmation absent significant defections within the majority.