White House withdraws Arkansas appeals court pick after home-state senators object
Several Senate Republicans are throwing up obstacles to President Donald Trump’s judicial nominees in the final weeks of the party’s Senate majority. The White House has already pulled an Arkansas appeals court nominee, and the Judiciary Committee has postponed a vote on an Oklahoma district court pick. The effort centers on Sens. John Cornyn of Texas, who is leaving office, and Thom Tillis of North Carolina, who is retiring — both members of the Judiciary Committee who are using their leverage to effectively block nominations on behalf of Republicans who are not on the panel.
The fight comes as Senate Republicans race to fill every remaining judicial vacancy this year, because they believe the incoming Democratic majority will have no interest in confirming Trump judges for lifetime appointments. Though it follows midterm losses on Nov. 3 that cost Republicans both the House and the Senate and weakened Trump’s political standing, the dispute centers on a much older prerogative: senators’ traditional claim to a voice over judicial selections, particularly in their home states. Under Judiciary Chairman Chuck Grassley, R-Iowa, the committee has moved at what it said was the fastest confirmation pace since the Reagan administration. As of Wednesday, 24 of Trump’s judicial nominations were pending in the Senate, which has confirmed 57 judges in his second term — 10 appeals court judges, 46 district judges and one member of the Court of International Trade, according to Grassley’s committee.
Tillis said he wants senators and their views on prospective judges to be heard by the administration. His message to the White House, Tillis said, was: “Don’t treat us like a manufacturing facility. Treat us like the U.S. Senate.”
“I’m not making a judgment about the merit of the nominee. I’m calling a foul on a process,” Tillis said in an interview with The Associated Press. “And the sooner the White House gets that, the more productive this next two years will be. If they don’t, they do so at their own peril.” Asked whether he was concerned about angering the White House or Senate leadership, Tillis replied: “I couldn’t care less.”
The clearest consequence came in Arkansas. Trump had nominated Lee Rudofsky, who holds a federal district court seat, to the 8th Circuit Court of Appeals. The White House abruptly pulled the nomination on Tuesday, after Cornyn and Tillis privately conveyed to Grassley that they would vote against Rudofsky in committee, according to two people with knowledge of the discussions who spoke on condition of anonymity to confirm private deliberations. Neither of Arkansas’s Republican senators, John Boozman and Tom Cotton, had signed off on the pick. Under current Senate practice, home-state consent is not required for appeals court nominees, whose circuits span multiple states, but it is rare for a White House to pursue a judge who lacks the support of home-state senators from the same party.
Cornyn, speaking before the withdrawal, said other senators were watching the Arkansas dispute closely. “The idea that you’re just going to roll over — that (the) White House has rolled over two senators from that state — obviously, other senators can see that happening to them if they sit and watch it happen,” Cornyn said. “So, I think there’ll be a lot of sympathy for the position of the two Arkansas senators.”
Boozman and Cotton were thought to have supported a different candidate: Arkansas Supreme Court Associate Justice Cody Hiland. In August remarks at the University of Arkansas at Little Rock, Hiland said he had interviewed specifically for the appeals court vacancy and gone through an extensive FBI vetting, only to be told by the White House counsel’s office that he would be nominated for a lower, district court position. He said he declined the offer. Hiland was nominated at the same time as Rudofsky. The White House did not return a request for comment on why it withdrew Rudofsky’s nomination.
In a brief interview, Boozman said simply that “we talked with other people that were certainly as capable.” Cotton declined to comment when approached in the Capitol.
In Oklahoma, Grassley was forced to postpone a key committee vote on Tuesday for district court nominee Zachary West because of opposition from Tillis on behalf of appointed Sen. Alan Armstrong, one of the people said. West, a former counsel to Cruz in the Senate who serves in the Oklahoma attorney general’s office, had initially been approved by Armstrong, who recently reversed course and privately conveyed his opposition to other senators, according to two people with knowledge of the talks. Speaking on Wednesday, Armstrong said his objections to West were “just purely qualification, versus the other candidates that we’ve suggested,” and said the White House “basically ignored” other recommended candidates for the vacancy. The roadblock may be temporary: Armstrong was appointed to replace Sen. Markwayne Mullin when Mullin became Homeland Security secretary, and newly elected Oklahoma Sen. Kevin Hern is scheduled to be sworn in on Nov. 30.
Some nominations had been pending before the Nov. 3 midterms, but at least one Texas vacancy is clearly being fast-tracked in a post-election rush. Elliot Gaiser, who leads the Justice Department’s Office of Legal Counsel, was first contacted by Cruz’s staff about becoming a federal judge on Nov. 4, the day after the election, according to his nominee questionnaire sent to the Senate Judiciary Committee. Cornyn said Gaiser has not been vetted by the bipartisan federal judicial evaluation committee traditionally used in Texas. “Trying to air-drop somebody else in at the last minute for the Dallas vacancy that hasn’t been through that process, I think, is a concern,” Cornyn said.
Cornyn also noted Gaiser’s ties to efforts to overturn the 2020 election results that culminated in the Jan. 6, 2021, attack at the Capitol. Gaiser, then a lawyer for Trump’s reelection bid, was advising the campaign on its election challenges at the time, according to testimony given to the Jan. 6 select congressional committee. “I think there’s a better choice through some of the other nominees that have been thoroughly vetted and are available to serve,” Cornyn said. “I certainly want to see us fill the seat.”
The obstacles complicate an aggressive end-of-year push. Grassley has pulled together an ambitious and aggressive confirmation timetable, much to the frustration of Democratic senators, and Senate Minority Leader Chuck Schumer, D-N.Y., told The Associated Press last week that Democrats will not fill the bench with “crappy nominees.” In a Wall Street Journal opinion piece published Tuesday, Grassley urged the Senate to confirm as many of the remaining nominees as possible, writing: “The stakes are far too high for Republicans to take their feet off the gas now.” Outgoing Senate Majority Leader John Thune, R-S.D., has conveyed similar sentiments.
Cornyn and Tillis say they share that goal of confirming as many nominees as possible, but say protecting senatorial prerogative over judges matters as well.