Trump’s Texas Judicial Nominees Not Without Controversy

(CN) – With 11 judicial openings in its federal courts and a crushing caseload, Texas desperately needs to fill those seats. President Donald Trump has nominated five candidates, including two who will be grilled by the U.S. Senate about their work for a religious advocacy law firm.

Texas has the longest border of any U.S. state with Mexico and the dockets of the Southern District of Texas and Western District of Texas are swollen with illegal entry and re-entry prosecutions of immigrants arrested trying to come into the United States from Mexico, or getting caught without papers in Texas.

Prosecutions of people accused of trying to smuggle drugs across the border also occur with mind-numbing frequency in those districts, while the Eastern District of Texas is known as a hub of patent litigation, leading the nation with 36 percent of patent cases filed there in 2016.

Nominees Who Will Face Tough Questioning About Religious Views

Trump’s most controversial judicial pick for Texas is Jeff Mateer, first assistant to Texas Attorney General Ken Paxton, whom Paxton praised after Trump announced his nomination in September.

“Jeff Mateer is a principled leader—a man of character—who has done an outstanding job for the state of Texas as first assistant attorney general. … Judges who rule by the Constitution and the law are desperately needed today, and I am confident a Judge Mateer will faithfully fulfill this duty,” Paxton said in a statement.

But critics from the LGBT community hold up Mateer as Exhibit A of how Trump – who called for a ban of transgender people in the military and whose administration dropped its defense in court of an Obama-era rule mandating that public schools let transgender students use the locker rooms and bathrooms of their chosen gender – is trying to get like-minded jurists into the federal courts.

Trump nominated Mateer for a bench in the Eastern District of Texas.

“Basically Trump’s attack on LGBT people has reached the courts,” said Eric Lesh, the fair courts project director for Lambda Legal, an LGBT advocacy law firm.

Mateer is the former general counsel and vice president of the religious legal group First Liberty Institute. During his tenure there, he reportedly said in speeches in 2015 that transgender children are “Satan’s plan” and compared same-sex marriage to bestiality.

Lesh said those remarks prove Mateer he is “uniquely unqualified” to be a federal judge.

The First Liberty Institute is based in Plano, a Dallas suburb, and it advocates for religious rights in litigation and at the local level. Lesh said that at First Liberty Institute, Mateer spoke out against proposed anti-LGBT discrimination ordinances in Plano and Waco, Texas and represented an ousted employee of Ford Motor Company.

Ford fired Thomas Banks in 2014 for violating its ant-discrimination policy after he posted a comment, stating in part that “Heterosexual behavior creates life — homosexual behavior leads to death,” in response to an article on the company’s intranet espousing inclusiveness of LGBT people.

“Mateer and First Liberty Institute represented him, claiming that saying homosexuality leads to death is part of his religious faith and that he was being punished by being fired for his deeply held religious beliefs,” Lesh said in a phone interview.

Mateer’s nomination is surprising given that all of Trump’s nominees for federal judgeships in Texas were vetted by the Federal Judicial Evaluation Committee, a bipartisan group of attorneys appointed by Texas U.S. Sens. John Cornyn and Ted Cruz, both Republicans, that subjects candidates to intense interviews before recommending them to the White House.

An almost equally quizzical Trump selection for a federal bench in Texas is Matthew Kacsmaryk, First Liberty Institute’s general counsel.

Trump nominated Kacsmaryk for a judicial seat in Kacsmaryk’s former stomping grounds, the Northern District of Texas, where he was a federal prosecutor from 2008 to 2013.

Lesh said that although Kacsmaryk hasn’t been outspoken about his views like Mateer has, his work for First Liberty Institute speaks for itself.

“I haven’t seen the same level of vitriol come out of Matthew Kacsmaryk’s mouth but in terms of his agenda and the types of work he does as general counsel at First Liberty Institute, they’re two peas in a pod,” Lesh said.

James Alfini is a professor and dean emeritus at South Texas College of Law Houston and expert on the federal judiciary. He also expressed concerns about Mateer’s and Kacsmaryk’s work for First Liberty Institute.

“They have spent a good part of their careers advocating a conservative ideology and it’s not really in line with the kind of open mindedness we want on the bench,” Alifini said in a phone interview.

He added, “I mean it’s possible that they would be able to put that ideology aside and maintain an open-minded attitude towards the cases that come before them, but I have a hard time believing, given their level of involvement in these religious liberty cases, that they’d be able to not prejudge, and those cases are coming up more and more.”

Alfini said that Mateer’s and Kacsmaryk’s religious freedom advocacy is contrary to the views of the Founding Fathers, especially Thomas Jefferson, who strongly supported the separation of church and state.

“And being in favor of freedom of religion sounds like a very good thing and in fact it’s embedded in our First Amendment, but there’s the Establishment Clause in there as well, and most of the cases that they have pushed don’t take account of the fact that there’s a tradition of separation of church and state in this country,” he said.

The Senate Judiciary Committee questions all federal judicial nominees in hearings on Capitol Hill before they can be confirmed by a majority vote in the Senate.

The committee’s ranking Democratic, California Sen. Dianne Feinstein, has voiced her distaste for Mateer’s candidacy, blasting his “reprehensible” views about LGBT people and promising to question him about them during his yet-to-be-scheduled confirmation hearing.

Mateer and Kacsmaryk are both listed as experts on the website of the Federalist Society, the conservative organization that has had a hand in picking several of Trump’s nominees, including U.S. Supreme Court Justice Neil Gorsuch.

Nominees Likely To Sail Through Confirmation Process

Not all of Trump’s picks for Texas federal judgeships are controversial. Two were also nominated by former President Barack Obama: David Counts, a magistrate judge in the Western District of Texas, and Karen Gren Scholer, a partner in a Texas law firm and former state district judge for a civil court in Dallas.

Their nominations expired in January, part of a strategy by Republican senators to obstruct Obama’s selections and let Trump make his own choices after he took office, and they were tapped again by Trump in September.

Though Republicans faulted Obama for being slow to nominate candidates for federal judicial openings, he had a big impact on federal appeals courts. Only one of the nation’s 13 federal appeals courts had a majority of Democratic appointees when he took office in 2009 – now nine of them have a Democratic majority.

Alfini said the Senate’s failure to confirm Scholer and Counts under Obama, and their renomination by Trump, shows how the process has become overly politicized.

“During the last couple of years of the Obama presidency, there was a huge number of vacancies in federal district courts and certain courts of appeal, and it was allowed to build up largely because the Republican Senate was refusing to approve or confirm Obama’s nominees to the federal bench. The Merrick Garland refusal was just the tip of that iceberg,” Alfini said, citing Obama’s nomination of Garland for the Supreme Court in March 2016.

“They weren’t confirming district or appellate court judges either. And Texas was at the epicenter of that crisis at the time, and Cornyn and Cruz were the most mean spirited about that,” he added.

Both Counts and Scholer were vetted by the Senate Judiciary Committee in a September 2016 hearing.

Counts is in his 50s. He has bright blue eyes and boyish looks that aren’t diminished by his gray hair.

He said during his confirmation hearing that he was not prepared for the number of cases on his docket when he became a magistrate judge in the Western District of Texas in 2009.

“The volume of cases is overwhelming and it takes complete diligence, chipping away each day, efficiently but also patiently, and when I first arrived there I thought it was possibly inhuman. I wasn’t sure anyone person could do it,” he said.

But he credits U.S. District Judge Robert Junell for mentoring him and showing him how to handle the caseload.

The opening in the Western District of Texas came up when Junell took senior status in February 2015.

Western District of Texas Chief Judge Orlando Garcia told Courthouse News he believes Counts is well-qualified for the job, given his more than 20 years of experience as a prosecutor.

Counts worked for the Travis County District Attorney’s Office in Austin for nearly eight years and more than 10 years as a federal prosecutor in San Antonio. He is also a colonel and judge advocate in the Texas National Guard.

“We’re hopeful that the Senate can confirm him, maybe by December or January. Of course that might be wishful thinking but at least he’s been nominated…There doesn’t seem to be any issues or impediments towards confirmation,” Garcia said in a phone interview.

If confirmed, Counts will become the active federal judge for the district’s Midland-Odessa and Pecos divisions, while Junell will continue to hear cases in those divisions, Garcia said.

Federal judgeships are lifetime appointments. When a federal judge goes on senior status their seat opens up, but they stay on the court, and they can choose to reduce their caseloads.

Scholer, the daughter of a Japanese mother and Polish-American father who had a decorated career as a U.S. Army paratrooper during World War II, was nominated by Trump for a judgeship in the Northern District of Texas.

Running as a Republican, Scholer won two elections for a civil district court in Dallas and held the seat from 2000 to 2008, then returned to private practice. She was a trial lawyer for 18 years before her tenure as a state judge.

She told the Senate Judiciary Committee at a September 2016 hearing, at which she sat alongside Counts, that she believes her experience leading a state court will translate to the federal bench.

“I think everybody if it was possible should be on both sides of the bench because then you develop a true appreciation of what you would want in a federal district judge,” Scholer told the committee.

“And what I learned … are that litigants and lawyers all want the same thing: they want a trial judge who is predictable and follows the law,” she said.

Scholer, whose most distinctive facial feature is her large, long-lashed eyes, is a leader in numerous Asian-American organizations in Dallas.

She told the committee that she thinks diversity is very important in the legal profession because it provides role models for other minorities and shows them that barriers have been broken.

“But it has no place with respect to decision making. All people before the court should be treated equally under the law,” she said.

Neither Counts nor Scholer appear to have connections to the Federalist Society.

Fifth Trump Nominee for Texas Has State Supreme Court Ties

Trump also nominated Fernando Rodriguez Jr. for a judgeship in the Southern District of Texas. Rodriguez has helped rescue more than 110 child sexual abuse victims as field office director in the Dominican Republic for International Justice Mission, the White House press office said in a statement about his nomination.

Like all his fellow nominees, Rodriguez didn’t respond to a request for comment about his candidacy. He was a briefing attorney for Texas Supreme Court Justice Nathan Hecht in 1997 and 1998, and then went to work in commercial litigation as a partner in Baker Botts’ Dallas office. Hecht is now chief justice of the Texas Supreme Court.

“Fernando was one of the best law clerks I have had. He was insightful, thorough, and hard-working. Whatever questions I put to him about the law, I could trust him to give me the right answers. He was a clear writer and thinker,” Hecht told Courthouse News.

Hecht said he’s certain Rodriguez will be up to the job if he’s confirmed, and will be respectful to all the litigants who come before him.

“Fernando is the perfect candidate to be a federal judge. He is patient, smart, fair but firm, and a thoughtful listener. He knows that although he will handle many cases, each one is the most important case in the world to the parties and lawyers when they are before him,” he said.

Rodriguez has no apparent affiliation with the Federalist Society.

James Palmer contributed to this report.

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