People For the American Way

Sen. Whitehouse’s Grim and Accurate Diagnosis of the Current Judicial Confirmation Process

News and Analysis

At a Senate Judiciary Committee meeting on May 17, Sen. Sheldon Whitehouse called out the dangerous charade that the judicial confirmation process has become with Donald Trump in the White House and Republicans controlling the Senate. His comments weren’t complicated. They were just plain common sense mixed with a desire to protect our democracy.

At issue was Fifth Circuit nominee Andrew Oldham, who lost all credibility at his hearing in an exchange with Whitehouse in April. But as Whitehouse explained in recalling their conversation, Oldham is just the latest nominee who fits the mold of many—if not most—of Trump’s circuit court nominees: He has been selected by corporate interests in the expectation that he will rule in their favor, enriching them all the more.

As the senator says, when a secret money donor is spending $18 million in the judicial selection business, there is more going on than just evaluation on the merits.

Whitehouse’s statement in full is below:

The most important characteristic that I suspect we all accept a judge must bring to the bench is that litigants can reasonably expect that they will get a fair hearing before that judge. Few feelings are more disheartening—and, frankly, more un-American—than appearing in a court with the sense that judge has the fix in against you.

It may be the most basic tenet of the rule of law. And in my view, some of the history of the judges that have been put on the nominations assembly line and cranked through this committee and the floor don’t credibly pass that test. That’s my concern. They just don’t credibly pass that test.

The process that has led to their nomination is, in my view, a special interest obstacle course in which they have to check the boxes. We had a situation in which one donor contributed—I want to say—what, $17.9 million it was?—to influence judicial nominees.

That’s just weird.

I mean, the idea that one anonymous donor is spending nearly $18 million to influence judicial nominees—It’s really hard to imagine that that donor didn’t have some purpose in mind. You don’t usually spend that kind of money on arbitrary selections of judges. You have a purpose.

And when you look particularly at the value to polluting interests of having judges who don’t take environmental regulation seriously, that’s way more than 18 million bucks’ worth. I can’t connect big polluting industries to the anonymous $18 million because it’s dark money, and nobody knows.

But it ought to be a signal to all of us when a dark money donor is spending $18 million in the judicial selection business, that there is more going on here than just evaluation on the merits.

And there’s been a lot of reporting on the special interest obstacle course that these nominees have to get through before they become nominees. In my view, it is absolutely the intention of these special interests who maintain that obstacle course for these nominees—It is absolutely their intention that when they appear in court before those nominees, they will feel an advantage. And their adversaries will feel a disadvantage. That is why they do this, I believe.

So here we end up with these nominees coming through. The one before us is Andrew Oldham. He says that he is “enraged.” Enraged. That is a highly personal sentiment. That is not an argument on behalf of a client, when you say you are enraged by a federal agency. That you are enraged because you doubt the very legitimacy of that agency. It’s really hard for me to see how you can be personally enraged by the existence of the Environmental Protection Agency because you believe it is illegitimate, and then walk back from that personal rage and sit up there on a bench and say, “Don’t worry, EPA, I’m gonna treat ya fairly.”

You’d have to be halfway nuts to be an EPA lawyer facing that judge and thinking you are going to get a fair shake from a judge who is personally enraged by the existence of the agency that you represent.

We’ve gotten to the stage where we have our little minutes and we crank through these candidates. The process of these candidate reviews, I think, has become rote and has become ridiculous. I don’t think that the idea “I was just speaking for my client” has any credibility whatsoever when you’re using words like “enraged,” and when you’re challenging the very legitimacy of a federal agency that has stood for what, 40 years now.

And when I pressed a little bit on that with Mr. Oldham, he fell back to the next little defensive trench which was “Well, I wasn’t speaking for myself, I was just speaking for the governor. I was just being the mouthpiece for him.”

Well his actual words [in the speech I asked him about] were, “the governor and I.”

But of course that doesn’t get explored in these hearings. I personally believe that I was misled by this individual, and that he knew perfectly well that he could give me a rote and ridiculous answer, and there would be no consequences for it, because we have a judicial nominations assembly line that is cranking people through. And the special interests who police that assembly line very much want the outcome that they will achieve favored status on their pet issue when they come before these judges.

We’ve seen it happen. I predict it for Oldham. I’ll make that prediction right now. We can look at his career. He’s obviously on the assembly line. He’s obviously going to be cranked through. But I will make a prediction here that as we look at his record over time, we will see that I am right.

And we’re seeing it already with some of the other nominees who’ve been cranked through. Look at James Ho. He made all the same representations that Chairman Grassley referred to, pledging to put all of his extreme views behind him, pledging to separate himself from all the advocacy that he has done, pledging to say that he is going to be a legitimate, straight-up, minimalist, thoughtful judge.

And what does he do on his very, very first opinion? In his very first opinion? He writes a dissent so extreme that no other judge joins it, that contains a long and bizarre political science lecture that is a paean to the roll of dark money and big money and influence in politics.

Where did that come from?

That certainly was not consistent with the image that he had tried to portray in this hearing room just months before. He basically outed himself as an extremist, Opinion One. Opinion One!

So I regret where we are. I regret what we’re doing. And I deeply regret the sense that I think many lawyers are going to have as they walk through the halls and under the pediments of our United States courtrooms, that when they go in, they will have reasonable cause to believe that they will be facing judges who are predisposed against them not based on what the merits of the case is, but based on what the identity of the parties in the case is.

I am afraid that we have come to that. I think Andrew Oldham signals that. And I think James Ho confirms that.

Thank you very much.

(For more on the James Ho dissent Whitehouse referred to, see our affiliate foundation’s post, Confirmed Judges, Confirmed Fears: Trump Circuit Judge Shows His Extremism in Money in Politics.)

Unfortunately, Sen. Whitehouse is correct. Republicans on the Judiciary Committee, led by Chairman Chuck Grassley, are not performing their constitutional duty. Instead, they are collaborating in an effort to stack our courts with narrow-minded judges who can be relied upon to favor the same elite and powerful interests that fund the GOP.