To: Interested Parties

From: Paul Gordon, Senior Legislative Counsel, People For the American Way

Date: July 2, 2018

Re: Trump’s Judicial Nominations Are Built on Lies For judges, honesty is a core character requirement. In their courtrooms, witnesses swear “to tell the truth, the whole truth, and nothing but the truth.” Our entire system of justice is premised on that ideal, to expect truth not just from witnesses, but from everyone—especially the judge. The judiciary’s legitimacy stems from the confidence that all parties—and our entire country—can trust the judge’s promise to approach every case without bias or favor. Yet a startlingly large number of Donald Trump’s judicial nominees have done just the opposite: they’ve misled the Judiciary Committee, home state senators, judicial selection committees, and the general public to secure powerful lifetime positions shaping the law to their liking—and to Trump’s. In virtually every case, that has not stopped Republicans on the Committee from supporting them and consequently eroding the Senate’s integrity and independence. That trend is troubling enough in “ordinary” circumstances; but with the prospect of Supreme Court confirmation hearings on the horizon, GOP support for nominees who mislead the Senate is even more disturbing. Several of the worst offenders, however, have had their nominations withdrawn or have not yet been before the full Senate. Republican senators still have an opportunity to protect the integrity of the federal bench and the Senate. Below are a few examples:

Wendy Vitter

Eastern District of Louisiana Louisiana district court nominee Wendy Vitter is a perfect example of one such nominee. Well known for her extreme anti-choice ideology, Vitter brazenly failed to disclose to the Judiciary Committee statements she had made in 2013 when she moderated an anti-choice panel. Vitter urged conference attendees to help disseminate grossly inaccurate claims that “the pill kills” and that abortion increases the risk of breast cancer: So, the next step: go to Dr. Angela’s website “Breast Cancer Prevention Institute,” download it, and at your next physical, you walk into your pro-life doctor and say, “Have you thought about putting these facts or this brochure in your waiting room?” Each one of you can be the pro-life advocate to take the next step. That’s what you do with it. Because objective fact-finding is an essential role of a district court judge, her championing of clearly bogus materials in and of itself is a solid indication that she is unfit for the bench. But her conduct after nomination was even more troubling. At Vitter’s confirmation hearing, when asked whether she believed these debunked assertions, she gave an untruthful response: I was trying to encourage the participants who had heard this to do was to speak to their own medical provider, because I thought a doctor—your own doctor—would be the best person to provide information to you, and provide you their opinion on this. This statement was clearly not what Vitter actually said, yet every Republican on the Judiciary Committee voted to advance her nomination. The Senate’s Republican enablers are all too willing to sacrifice honesty—the fundamental character trait essential for a fair-minded jurist—for judicial nominees ready and willing to advance their narrow-minded elitist agenda. Current status: Wendy Vitter’s nomination is pending on the Senate floor.

Thomas Farr

Eastern District of North Carolina When he was nominated for a district court seat, Thomas Farr was widely known for being a reliable attorney contact for North Carolina Republicans when the legality of their voter suppression schemes was challenged in court. Farr also served 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 falsely suggesting they might not be eligible to vote in their precinct and that they could be imprisoned for up to five years if they tried to vote there. 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 on a party-line vote, evidence surfaced that he 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 again held a vote without the requested hearing over Democratic objections; in so doing, the chairman protected Farr from facing senators in person and answering their questions about his involvement while under oath. Current status: Thomas Farr’s nomination is pending on the Senate floor.

Britt Cagle Grant

Eleventh Circuit Court of Appeals At Britt Cagle Grant’s hearing for her nomination to the Eleventh Circuit Court of Appeals, her response to a direct question about the Voting Rights Act was erroneous and misleading. During her years at the Georgia Attorney General’s office, including as solicitor general, she was involved with an amicus brief with several other states in Shelby County v. Holder, in which a 5-4 Supreme Court undermined the preclearance requirement of Section 5 of the Voting Rights Act by striking down the provision (Section 4) stating which states and localities were subject to preclearance. Georgia’s amicus brief supported Shelby County, which was litigating to have the requirement struck down. When Sen. Klobuchar asked questions about this, Grant gave a deceptive response, stressing that the brief did not seek to have Section 5’s preclearance provision struck down, but only its application via the Section 4 coverage formula: [Georgia’s position was that] the law in place needed to reflect current conditions and current evidence rather than past evidence. And that’s what the State of Georgia argued. That’s what the other states argued and eventually the United States Supreme Court agreed. Not that there couldn’t be a Section 5. Obviously, racial discrimination voting is completely inappropriate in any instance. So, not that there couldn’t be a Section 5, but that [the law] needed to reflect current times and current statistics rather those from decades ago. But Grant was not telling Sen. Klobuchar the truth. Georgia did seek to have Section 5 struck down along with Section 4, as the brief itself makes clear several times. It stated: The amici States urge this Court to overturn the coverage formula of Section 4(b) and the preclearance obligation of Section 5 because those provisions are no longer congruent and proportional to the current state of voter rights nationwide, yet impose costly and time-consuming burdens on an arbitrary group of states and localities without any reference to current conditions in those jurisdictions [emphasis added]. Attorneys submitting briefs to the United States Supreme Court are very careful in how they write and in what they ask the Court to do. The inclusion of Section 5 as a provision to be declared unconstitutional was not a typo that somehow got past Grant and every other official who drafted and reviewed the document—it was a major policy decision, one that generated immense controversy and was the exact opposite of what Grant told the Judiciary Committee. Current status: The Judiciary Committee has not yet voted on Britt Grant’s nomination.

Brett Talley

Middle District of Alabama Despite the fact that he had never tried a case and had only actually practiced law for about three years, Brett Talley was nominated to a lifetime position as a federal district court judge in late 2017. After the Judiciary Committee nevertheless 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 didn’t disclose that he was married to the White House Counsel’s chief of staff. That relationship would have resulted in his being able to preside over cases with a significant conflict of interest that the disadvantaged party would not know about. But that wasn’t the only indication that he was unfit for the job. He also had failed to disclose thousands of items he’d posted on the Internet, many of which were quite disturbing. He defended the KKK and its founder, Nathan Bedford Forest. He wrote that mainstream Islam calls for the murder of non-Muslims, and that then-candidate Donald Trump “says what everyone is thinking about Islam but doesn’t want to say.” 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.” Current status: Brett Talley’s nomination was dropped when it became clear that he would not be confirmed.

Gordon Giampietro

Eastern District of Wisconsin Upon his nomination last year to be a judge in the Eastern District of Wisconsin, Gordon Giampietro submitted what he claimed was a full record of the material requested by the Judiciary Committee to evaluate his record and his qualifications. Senators later discovered that his claim was false: He had left out inflammatory material he had written that reflected his extreme views of the law. In a comment he posted on The Catholic Thing blog in 2014, 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. Ironically, Giampietro may not have been nominated but for a decision to conceal other volatile parts of his record beforehand. Giampietro was one of three individuals who had been recommended by a bipartisan screening commission established by both of his home state senators, Republican Ron Johnson and Democrat Tammy Baldwin. The senators forwarded the names to the White House. But it turns out that Giampietro may have gotten 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 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 and characterized LGBTQ people as “an assault on nature.” Citing these and others of Giampietro’s comments and his decision not to disclose them, Sen. Baldwin has asked the president to withdraw the nomination. Current status: Gordon Giampietro has not had a hearing.

Ryan Bounds

Ninth Circuit 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 from underserved and minority communities. He wrote: The existence of ethnic organizations is no inevitable prerequisite to maintaining a diverse university community—white students, after all, seem to be doing all right without an Aryan Student Union. and I am mystified because these tactics [of those promoting multiculturalism] seem always to contribute more to restricting consciousness, aggravating intolerance, and pigeonholing cultural identities than many a Nazi bookburning. With regard to sexual assault on campus, he wrote: Emasculating our burden of proof in the interest of eradicating all hints of antisocial behavior in our community is presumptively invalid, not because students entertain some innate fidelity to ‘beyond a reasonable doubt’ (a standard that is not used in most civil cases in the U.S.), but simply because they did not come to Stanford University to be parented or morally reared. … Expelling students is probably not going to contribute a great deal toward a rape victim’s recovery; there is no moral imperative to risk egregious error in doing so. Bounds omitted these and other disturbing articles to the Oregon commission. When discussing his experiences with diversity, he volunteered information from his days in junior high and high school, but said nothing about his college articles, which raise enormous red flags about his qualifications. Rather than explain to commission members why these articles did not disqualify him, he chose to hide them. Bounds was one of three people recommended to Oregon Sens. Ron Wyden and Jeff Merkley by the screening commission they had set up. (The president chose to nominate Bounds before the commission began its work.) But after his college writings became public, the chair of the commission wrote directly to the senators, stating that Bounds had misled them and that five of the seven members no longer recommended him. Both Wyden and Merkley oppose the nomination. 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. Current status: Chuck Grassley held a committee hearing and committee vote for Bounds over the objections of both Oregon senators. The committee approved him in a party-line vote, and his nomination is on the Senate calendar.

Jeff Mateer

Eastern District of Texas Jeff Mateer may be the most notorious of President Trump’s judicial nominees who advanced through the nomination process by withholding disqualifying material from their home state senators’ state screening commissions. In his case, he didn’t tell Sens. Cornyn and Cruz’s Federal Judicial Evaluation Committee that he’d called transgender children part of Satan’s plan during a conference presentation. Sen. Cornyn confirmed that Mateer had not told the commission about this, adding: “It’s fair to say I was surprised about that.” Current status: Jeff Mateer’s nomination was dropped when it became clear that he would not be confirmed.

John K. Bush

Sixth Circuit Court of Appeals Many of President Trump’s nominees make statements to senators that are so obviously false that they demean the Judiciary Committee. One of his first nominees—John K. Bush of Kentucky—showed subsequent nominees that they can say ludicrous things at their hearings without losing the unanimous support of Republicans. For instance, Ranking Democrat Dianne Feinstein asked Bush what an originalist approach to the constitutional right to marry someone of a different race would be. The Supreme Court upheld this right in Loving v. Virginia. Bush responded: I have not had occasion to study this decision of the Supreme Court in light of any methodology of constitutional interpretation. If confirmed to the Sixth Circuit, I would apply Loving faithfully, as I would any precedent of the Supreme Court. This would have been a staggering revelation had anyone actually believed he was telling the truth. Loving was decided in 1967, and Bush attended Harvard Law School two decades later, from 1986-1989. One would have to be quite gullible to believe that his constitutional law classes—while carefully analyzing, discussing, and debating various approaches to interpreting the Equal Protection Clause and the nation’s most important cases doing so—somehow omitted Loving. Equally non-credible was his response to a question about Griswold v. Connecticut, the 1965 case establishing the right to privacy and leading to Roe v. Wade and cases protecting LGBTQ people. This entire line of cases has long been vociferously condemned by the far Right as “making up rights” and “making law rather than interpreting it.” Seeking to learn about the nominee’s judicial philosophy and constitutional views, Sen. Richard Blumenthal asked him if he believed that Griswold was correctly decided. Bush said, among other things, that he had “not had occasion to study Griswold in detail.” No senator on the Judiciary Committee could possibly believe that someone went through Harvard Law School without studying the seminal right to privacy case in detail. The answer was even more fantastical because Bush had been president of the Louisville, KY chapter of the Federalist Society for 20 years. Constitutional interpretation and the concept of unenumerated constitutional rights are of great interest and importance to the Federalist Society. It is hard to imagine leading the local branch for two decades without any serious discussion of the Griswold case and the doctrine it launched. Nevertheless, the committee approved Bush’s nomination in a party-line vote. Republican senators showed that they are willing to accept Donald Trump’s judicial nominees lying to them under oath without complaint. Subsequent nominees have gotten the message, and obviously untrue evasions have become routine. Every time the committee majority accepts them without comment it further demeans the Judiciary Committee and the Senate as an institution. Current status: John Bush was confirmed to a lifetime position on the Sixth Circuit by a party-line vote in July of 2017.

Conclusion