Justice is supposed to be blind. But in order to do away with that principle and transform our judicial system, the Trump administration is keeping the Senate blind to vital information about the president’s nominees.
Judges exercise an enormous role in our constitutional system, as they are tasked with protecting our fundamental rights and liberties, our nation’s democracy, and the rule of law. They have lifetime tenure, making it all the more important that we know their records in full before the Senate votes on whether to confirm them. That’s why the Judiciary Committee requires each nominee to respond to a lengthy questionnaire and submit copies of their past writings, media appearances, speeches, and so forth.
Yet the Trump White House is repeatedly sending nominations to the Senate without full disclosure of their records, omitting relevant and often inflammatory portions. Their agenda is not to maintain an independent judiciary committed to the Constitution and the rule of law. Instead, it is to populate the bench with narrow-minded elitists committed to a far right ideological agenda.
These are lifetime appointments. The committee can’t do its job and review nominees’ records if the administration hides information, and both parties should be furious at this routine practice under President Trump.
The most recent perpetrator who has been uncovered is Wendy Vitter, Trump’s nominee for a district court in Louisiana. She left clearly disqualifying information out of her questionnaire responses, information that she was required to disclose.
For instance, as Vice News reported, she did not inform senators that she had moderated a panel called “Abortion Hurts Women’s Health” at an anti-choice conference in 2013. All it takes to surface a video of the event is a quick Google search. One of the panelists—Angela Lanfranchi—claimed that abortion increases the risk of breast cancer, a lie routinely used by anti-choice advocates even though it has been repeatedly debunked. Lanfranchi also peddled a brochure called “The Pill Kills” claiming that women using birth control pills are more likely to die a violent death. Vitter’s response to this false propaganda was not to condemn it, but to urge conference attendees to help disseminate the pamphlet through their own doctors’ offices.
Vitter also did not reveal that she had spoken at a public rally opposing the construction of a Planned Parenthood clinic in 2013. The rally and her participation as a speaker were covered by local media.
Someone who peddles falsehoods and who actively seeks to block others from exercising their constitutional rights is not fit for the federal bench. So it is no surprise that the White House and Vitter would hope senators would overlook such disqualifying material. But instead, they chose to keep senators in the dark by omitting the information altogether, just as this administration has done with other judicial nominees.
Vitter’s hearing will be scheduled after she supplements her original questionnaire responses.
When he was nominated for a district court seat, Thomas Farr had a widely known record of being the attorney North Carolina Republicans turn to when the legality of one of their voter suppression schemes is challenged in court. Farr had also worked as counsel to then-Sen. Jesse Helms’ reelection campaign, which in 1990 engaged in a notorious scheme designed to frighten African Americans out of exercising their right to vote. The campaign sent 100,000 postcards to African American voters suggesting they were not eligible to vote and could be criminally prosecuted if they tried to cast a ballot.
Concerned Democrats asked Farr if he’d been involved in the scheme, and he assured senators that he had not known of the postcards until after they were sent. But after the committee voted for him in a party-line vote, evidence surfaced seriously undermining Farr’s claim, indicating that Farr had been at a “ballot security” planning meeting where the postcards were discussed. Chairman Grassley refused Democrats’ requests for a new hearing so senators could ask him about the new information in person. When the nomination had to go through the committee again in the new year (for procedural reasons), Grassley opted to hold a vote without the requested hearing.
If Farr isn’t hiding anything from the public, Republicans would not fear having him face senators in person to tell the full truth about his involvement.
Farr’s nomination is pending on the Senate floor.
Brett Talley wasn’t nominated for his legal experience: He’d never tried a case and had only actually practiced law for about three years. But as a high-level staffer in the Justice Department’s Office of Legal Policy vetting judicial nominees, he was a Trump loyalist, which seems to be the only “qualification” that counts for this administration and congressional Republicans.
After the Judiciary Committee approved Talley by a party-line vote, news reports indicated that he had left some important information out of his committee questionnaire responses. When asked to identify potential conflicts of interest should he be confirmed, he hadn’t disclosed that he was married to the White House Counsel’s chief of staff. He also had failed to disclose thousands of items he’d posted on the Internet—specifically, posts he wrote for a University of Alabama fan message board, many of which were quite disturbing. He defended the KKK and condemned Roe v. Wade. His response to the slaughter of young elementary school children in Newtown, CT, was that we should “stop being a society of pansies and man up.”
Part of Talley’s job was to vet potential judicial nominees and prepare them for the confirmation process. He was certainly aware of his inflammatory posts and his wife’s job. And it’s hardly likely that he kept his marriage to the chief of staff a secret from his colleagues in the White House Counsel’s office and elsewhere who helped with his response to the committee questionnaire. When it became clear that Talley could not be confirmed, the nomination was dropped.
Gordon Giampietro is another nominee who the administration is trying to sneak through the confirmation process while hiding part of his record. If confirmed, he would be a district court judge in the Eastern District of Wisconsin. He did not disclose with his questionnaire highly relevant and responsive material about his views on civil rights. Fortunately, senators have found the material that Giampietro and the Trump White House chose not to disclose.
In a comment he posted in response to a post on The Catholic Thing blog, Giampietro referred to the Civil Rights Act of 1964 as an “intrusion into private business” that would not have been necessary but for slavery. He also labelled efforts to address the impact of slavery and Jim Crow on African Americans as a “racial spoils system,” and he called diversity “code for relaxed standards (moral and intellectual).”
Members of the Senate Judiciary Committee cannot ask a nominee to explain statements like these if they are unaware of them in the first place. Our constitutional framework presumes that the Senate’s confirmation vote is based on knowledge of the nominee, rather than ignorance. Otherwise, this vital safety mechanism created by the founders cannot function.
Giampietro also used nondisclosure to game the system by which he was recommended to the White House in the first place. Home-state senators play an enormous role in the process for identifying and recommending district court nominees. In Wisconsin, Sens. Ron Johnson and Tammy Baldwin have established a bipartisan commission to recommend potential nominees to them. When establishing and renewing the commission, the senators agreed not to forward a recommendation to the White House without their commission’s prior support.
But it turns out that Giampietro got the commission’s support by hiding inflammatory and disqualifying statements from its members. In radio interviews with Lydia LoCoco in 2014 and 2015, he sharply criticized the Supreme Court (and Justice Kennedy in particular) for their jurisprudence on legal matters relating to LGBTQ equality. He characterized LGBTQ people as “an assault on nature.” He claimed that by recognizing the right of same-sex couples to marry, the Supreme Court had left no legal argument available to prohibit polygamy or sibling marriage. He condemned the courts for having “a view of the human person” that includes non-heterosexuals.
As Sen. Baldwin stated after Giampietro’s nomination, when his inflammatory anti-LGBTQ statements became known:
Both what was said, and the fact that it was not disclosed to the [Wisconsin Federal Nominating] Commission, raise serious questions about whether this nominee would be able to serve as a fair and impartial judge on a federal court.
Giampietro has not had a hearing scheduled. In the past, the committee chairman has not held a hearing for a nominee lacking the support of both home state senators, but Grassley has already violated this tradition twice for Trump nominees, including another Wisconsin nominee.
Ninth Circuit nominee Ryan Bounds followed the same playbook, getting the Oregon senators’ nominations commission’s approval after hiding unquestionably relevant material from its members. As the Alliance For Justice has reported, Bounds wrote a number of college newspaper articles evidencing a fundamental opposition to—or misunderstanding of—fellow students who were parts of communities that have long been subjected to systemic discrimination. In one case, he asserted that campus efforts to raise awareness and understanding of multiculturism “seem always to contribute more to restricting consciousness, aggravating intolerance and pigeonholing cultural identifies than many a Nazi bookburning.” In another article, he sharply criticized “the idol of Sensitivity” as a “pestilence,” writing that “[u]nlike recognized biological contaminants, however, this danger spreads without suffering the stigma that its enormity justifies…”
Bounds chose not to disclose these and other disturbing articles from the Oregon commission. It is no mystery why: At the very least, they raise enormous red flags about his qualifications to be a federal judge. Rather than explain to commission members why these articles don’t disqualify him, he chose to hide them. If his college writings no longer represent who he is, he should have had no difficulty disclosing them to the commission.
Not surprisingly, when Sens. Ron Wyden and Jeff Merkley learned about Bounds’ articles, they announced that he is not suitable for the bench.
Consistent with the blue slip tradition, Grassley has not scheduled a hearing for Bounds.
Senators cannot do their jobs if they are hobbled by the deliberate withholding of relevant information about a nominee’s qualifications. But a Senate that properly vets judicial nominees is the last thing the Trump administration wants.