White House faces unusual obstacle on confirming Trump judges: other Republicans

WASHINGTON (AP) — Several Republican senators are complicating a White House plan to leave an enduring imprint on the judiciary long after President Donald Trump leaves office by throwing up obstacles for a handful of his judicial nominees in the final weeks of their Senate majority.

In Texas, outgoing Sen. John Cornyn has expressed reservations about a top Justice Department official who has been nominated for a federal judgeship in the Dallas area. The two Arkansas senators, both Republicans, opposed a Trump nominee to a powerful appeals court seat, forcing the White House to withdraw Trump’s pick this week. And in Oklahoma, an appointed GOP senator has thrown up sudden objections to a district court nominee after earlier giving him the green light.

Central to this effort are Cornyn and retiring North Carolina Sen. Thom Tillis, both of whom serve on the Judiciary Committee and are using their leverage to effectively block nominations on behalf of Republicans who aren’t on the panel. Though it comes after the midterm losses that weakened Trump’s political standing, this under-the-radar judiciary fight is more about Republicans asserting their powers over the administration's judge selections, which has long been a cherished prerogative for senators , particularly for their home states.

Asked about his opposition to the Arkansas and Oklahoma nominees, Tillis said he wants senators and their views on the 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.”

Trump had nominated Lee Rudofsky of Arkansas to the 8th Circuit Court of Appeals. But the White House abruptly pulled that nomination on Tuesday, after Cornyn and Tillis had privately conveyed to Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, 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.

Grassley also was forced to postpone a key committee vote on Tuesday for Oklahoma judicial nominee Zachary West because of opposition from Tillis on behalf of Sen. Alan Armstrong, one of the people said.

The obstacles for the White House come as Senate Republicans have been racing to try to fill all remaining judicial vacancies this year, since they believe the new Democratic majority will have no interest in confirming Trump judges for lifetime appointments. Senate Minority Leader Chuck Schumer, D-N.Y., told the AP last week that Democrats will not fill the bench with “crappy nominees ," and Grassley has pulled together an ambitious and aggressive confirmation timetable, much to the frustration of Democratic senators.

Some of the nominations had been pending before the Nov. 3 midterms, which saw Republicans lose both the House and the Senate.

But at least one judiciary vacancy in Texas 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 Texas Sen. Ted 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. He has not been vetted by a bipartisan federal judicial evaluation committee that is traditionally used in Texas, Cornyn said.

“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 told the AP.

Cornyn also noted Gaiser’s ties to efforts to overturn the 2020 election results that culminated in the Jan. 6, 2021, insurrection at the Capitol. Gaiser, then a lawyer for Trump’s reelection bid, was at the time advising the campaign on its election challenges, 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 continued. “I certainly want to see us fill the seat.”

Meanwhile, neither John Boozman nor Tom Cotton, the two Arkansas senators, had signed off on the appeals court nomination for Rudofsky, who currently holds a federal district court seat. Current Senate practice is that home-state consent isn’t necessary for nominees to the appeals courts, which span multiple states, although it is rare that a White House pursues any judge that isn't supported by home-state senators from the same political party.

Boozman and Cotton were thought to have been supportive of another candidate, Arkansas Supreme Court associate justice Cody Hiland. The justice said in August remarks at the University of Arkansas at Little Rock that he had interviewed specifically for the appeals court vacancy and went through an extensive vetting process by the FBI, but was eventually told by the White House counsel’s office that he was going to be nominated for a lower, district court position. Hiland said in his August speech to the law school that he declined the offer.

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. The White House did not return a request for comment on why it withdrew Rudofsky’s nomination, although Hiland was nominated at the same time.

“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 of Rudofsky in an interview before his nomination was pulled by the White House. “So, I think there’ll be a lot of sympathy for the position of the two Arkansas senators.”

The opposition to Oklahoma nominee Zachary West — a former counsel to Cruz in the Senate who currently serves in the Oklahoma attorney general’s office — may be temporary. Sen. Alan Armstrong had initially approved of the pick, but recently reversed course and privately conveyed his opposition to the nomination to other senators, according to two people with knowledge of the talks.

Armstrong himself, though, is not in Washington for long. He had been appointed to replace Sen. Markwayne Mullin when he became Homeland Security secretary. Newly elected Oklahoma senator Kevin Hern is scheduled to be sworn in on Nov. 30. Armstrong said on Wednesday that 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.

As of Wednesday, there were 24 judicial nominations from Trump pending confirmation in the Senate, according to Grassley's committee. So far under the president's second term, the Senate has confirmed 57 judges, which include 10 appeals court judges, 46 district judges and one member of the Court of International Trade.

Under Grassley, the Judiciary Committee has moved at what it said was the fastest pace since the Reagan administration.

In a Wall Street Journal opinion piece published Tuesday, Grassley urged the Senate to confirm as many of the remaining judicial 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, but that protecting senatorial prerogative on judges was also important.

Asked whether he was concerned he would anger the White House or Senate leadership with the tactics, Tillis responded: “I couldn’t care less.”

Associated Press writer Mary Clare Jalonick contributed.