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This week, a man picked by President Trump for a judgeship withdrew his name amid controversy. It's the third time in ten days that's happened. That said, Trump's record on filling judicial vacancies has far outdistanced his predecessors', as NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Trump, aided by Senate Republicans, has won confirmation of 12 Court of Appeals nominees. That's more than any president in his first year and, indeed, more than presidents Obama and George W. Bush combined. Part of that success is due to the huge number of judicial vacancies that existed when Trump took office, more than 150. That staggering number is due to the fact that Republicans, who controlled the Senate in the last two years of the Obama presidency, confirmed only two appeals court judges, a record that dates back to the 1800s.
Appeals court judges are considered particularly important because although there are fewer of them, they establish legal precedents in the lower courts. Trial court judges, by contrast, preside over criminal and civil trials in the federal courts. Democrats in the Senate have been unable to block judicial nominees at every level, starting with the party line vote to abolish the filibuster for Supreme Court nominees followed by the confirmation of Trump nominee Neil Gorsuch to the Supreme Court.
At the outset of the Trump administration, there were some steps left for Democrats to use to block lower court judges, namely the so-called blue slip system by which traditionally nominees are not considered unless both home state senators return a blue approval slip. Now, however, senators, particularly Democratic senators, are often not consulted about judicial nominations. Other checks have gone by the wayside, too. While the Obama administration sent all of its potential nominees to the American Bar Association for rating as to qualifications, the Trump administration has refused to do that prior to nomination.
The result is that the vetting process at both ends of Pennsylvania Avenue has become, as one Senate aide put it, an accident waiting to happen. And happen it did this month with three nominees to the trial courts. Matthew Petersen, this week's casualty, had no experience as a trial lawyer. He served on the Federal Election Commission with White House counsel Don McGahn. He withdrew after a video of his embarrassing confirmation performance went viral.
Questioned by Republican Senator John Kennedy of Louisiana, Petersen conceded that he had never tried a case in federal or state court, that he had never even taken a deposition on his own. As the agonizingly painful exchange continued, Petersen was unable to answer even the most basic of questions about the rules of evidence for trials.
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JOHN KENNEDY: As a trial judge, you're obviously going to have witnesses.
MATTHEW PETERSEN: Yes.
KENNEDY: Can you tell me what the Daubert standard is?
PETERSEN: Senator Kennedy, I don't have that readily at my disposal.
KENNEDY: Do you know what a motion in limine is?
PETERSEN: Again, my background is not in litigation. I haven't had to do a deep dive.
TOTENBERG: Petersen, seeing the handwriting on the wall, withdrew. It took longer for the handwriting to show up for Brett Talley, a 36-year-old Justice Department official and ghost hunter. He was approved by the Judiciary Committee on a party line vote in November despite a rare and unanimous unqualified rating from the American Bar Association. But as his nomination sat waiting for a vote by the full Senate, news organizations reported that he'd failed to disclose key information required for all nominees on their Senate questionnaire, specifically thousands of controversial blog posts and his wife's occupation. She's the chief of staff for the White House counsel McGahn.
Finally, there was Jeffrey Mateer of Texas. Shortly after the nomination was announced, gay rights groups called attention to frequent comments Mateer had made terming same-sex marriage disgusting and likening it to polygamy and bestiality. Here he is commenting on a lawsuit brought by a transgender student.
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JEFFREY MATEER: It just shows you how Satan's plan is working and the destruction that's going on.
TOTENBERG: While these three have withdrawn, other controversial nominees, with unified GOP backing in the Senate, have weathered the storm, giving a determined president the chance to remake the face of the federal judiciary. Nina Totenberg, NPR News, Washington.
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