People For the American Way

Judicial Nominees Richard Hertling and Ryan Holte Should Not Be Confirmed

People For in Action
Judicial Nominees Richard Hertling and Ryan Holte Should Not Be Confirmed

Floor votes are expected the week of June 3 on Trump judicial nominees Richard Hertling and Ryan Holte, both of whom are being considered for the U.S. Court of Federal Claims. The vacancies that Hertling and Holte would fill both evince Trump’s agenda to fill our courts with elitist judges who will reliably vote in favor of corporate interests. Hertling is also one of several Trump judges who’ve refused to state whether Brown v. Board of Education was correctly decided. Neither he nor Holte should be confirmed. People For the American Way’s opposition letters follow below and can be downloaded here and here.

Dear Senator:

On behalf of our 1.5 million supporters nationwide, People For the American Way opposes the nomination of Richard Hertling to a vacancy on the United States Court of Federal Claims. This vacancy has been open for nearly five years. It stands as evidence of the Republican project to fill our nation’s courts with narrow-minded elitists who can be relied upon to regularly rule in favor of corporate interests.

In written questions for the record, Hertling refused to state that Brown v. Board of Education was correctly decided.i Unfortunately, he is merely one of many of Donald Trump’s judicial nominees to avoid the question, a sharp departure from the norm. It would be understandable for nominees to be careful in how they discuss legal issues that they might be called upon to address as judges. But there is no indication that the principle of Brown is going to be relitigated. Revisiting separate-but-equal has not been a subject of any serious public debate. Our nation’s legal structure—indeed, our entire society—is built upon the foundation of Brown. There simply is no valid reason for a nominee to refuse to express an opinion on this most seminal of cases.

In this case, Hertling’s avoidance warrants our opposition, because his nomination does not exist in a vacuum. In fact, this vacancy should not even exist. But it does, due to the far right’s dangerous politicization of the American judicial system.

When Judge George W. Miller took senior status in 2013, and President Obama nominated Jeri K. Somers to fill his seat on the Court of Federal Claims.ii In July of 2014, the Senate Judiciary Committee voted to advance her nomination by unanimous voice vote.iii She was one of five Court of Federal Claims nominees approved by the Judiciary Committee during the 113th Congress, each one by unanimous voice vote.

Senate Republicans, then in the minority, prevented the Senate from holding a full confirmation vote on any of the nominees. President Obama renominated them in 2015,iv and they once again cleared the Judiciary Committee (by then controlled by Republicans) by unanimous voice vote.v That was in February of 2015, near the beginning of the new Congress. But once again, Republicans refused to allow confirmation votes for any of them. Five highly qualified, fully vetted jurists with enormous bipartisan support needlessly had their nominations languish for the entirety of the 114th Congress.

Like Merrick Garland, their qualifications were not in doubt, and they would almost certainly have been confirmed if a floor vote had been held. And as with Garland, the vacancies became available for a Republican president to fill.

President Trump chose not to renominate Somers, but to instead nominate Damien Schiff, whose record of ridiculing environmentalists and impugning their motives made his pro-corporate bias unmistakable.vi Indeed, that appears to be one of the reasons he was selected. Fortunately, the Senate did not confirm him.

Now Richard Hertling has been nominated for a vacancy that should have been filled by President Obama’s unopposed nominee in 2014, 2015, or 2016. Republican actions around this vacancy reflect the party’s increasingly brazen politicization of the federal courts. In a situation so rife with bad faith, the least—the very least—a nominee can do to address our concerns is acknowledge that Brown v. Board of Education was rightly decided.

We urge you to oppose Hertling’s nomination.

Sincerely,

Marge Baker
Executive Vice President for Policy and Program

Dear Senator:

On behalf of our 1.5 million supporters nationwide, People For the American Way opposes the nomination of Ryan Holte to a vacancy on the United States Court of Federal Claims. This vacancy has existed since 2013, nearly five years. It stands as evidence of the Republican project to fill our nation’s courts with narrow-minded elitists who can be relied upon to regularly rule in favor of corporate interests.

Judge Nancy Firestone’s 15-year term ended in 2013, and President Obama renominated her for reappointment.i In June of 2014, the Senate Judiciary Committee voted to advance her nomination by unanimous voice vote.ii She was one of five Court of Federal Claims nominees approved by the Judiciary Committee during the 113th Congress, each one by unanimous voice vote.

Senate Republicans, then in the minority, prevented the Senate from holding a full confirmation vote on any of the nominees. President Obama renominated them in 2015,iii and they once again cleared the Judiciary Committee (by then controlled by Republicans) by unanimous voice vote.iv That was in February of 2015, near the beginning of the new Congress. But once again, Republicans refused to allow confirmation votes for any of them. Five highly qualified, fully vetted jurists with enormous bipartisan support needlessly had their nominations languish for the entirety of the 114th Congress.

Like Merrick Garland, their qualifications were not in doubt, and they would almost certainly have been confirmed if a floor vote had been held. And as with Garland, the vacancies became available for a Republican president to fill.

President Trump chose not to renominate Firestone, but to instead nominate Ryan Holte. His absence of qualifications stands out when contrasted to the immense experience Firestone had when she was first nominated to the court by President Clinton in 1998.

At that time, she’d already had extensive executive experience and subject-matter expertise directly relevant to the work of the Court of Federal Claims, all with the United States government. She began her career in environmental appellate advocacy, then moved to trial litigation on Superfund issues with the Justice Department. Her experience included serving as associate deputy administrator at the EPA, administrative judge on the EPA’s Environmental Appeals Board, and deputy assistant attorney general at DOJ’s Environmental and Natural Resources Division. And when President Obama renominated her, she had an additional 15 years’ experience, all as a judge on the court to which she was renominated.

While Firestone had been practicing law for over two decades when she was first nominated in 1998, Holte only graduated law school 11 years ago. If the American Bar Association evaluated nominees for the Court of Federal Claims as it does for Article III courts, it would easily deem him unqualified: The ABA considers 12 years’ experience as an attorney as a minimum qualification for the federal bench. In addition, Holte acknowledged in his Senate Judiciary Committee questionnaire that he has never tried a case, a disturbing admission from someone nominated to sit as a trial judge.v

It appears his main qualification from the perspective of the Trump administration is his longtime membership in the Federalist Society, the far right group that has an outsized role in selecting the president’s judicial nominees for him. Holte joined the Federalist Society during his first year in law school in 2005. Since 2014, he has been on the executive committee of its Intellectual Property Practice Group. This suggests he is exactly the type of individual Leonard Leo has in mind for his project to transform the judiciary.

We oppose Holte’s confirmation to the Court of Federal Claims.

Sincerely,

Marge Baker
Executive Vice President for Policy and Program