BLOCK EXTREMIST & UNQUALIFIED JUDGES: No Zealots in Lifetime Positions

THE ISSUE

Trump’s plan to appoint ultra-conservative, extremist judges to lifetime positions in the federal court system is a weapon that will continue to harm Americans long after he is out of office. Trump has confirmed nearly 200 judges since taking office, methodically filling these vacancies with the most conservative and least diverse group of candidates seen since Reagan held office. Unlike former presidents, who solicited suggestions for judicial nominees from nominees’ home state senators, Trump is outsourcing the selection process to conservative groups such as the Federalist Society and Heritage Foundation. In 2017, the Trump administration banned the independent American Bar Association from the administration’s official vetting of judicial nominees, breaking a 65-year tradition. Senate Republicans have also taken steps to speed the process by voting to allow confirmation of Supreme Court nominees with a simple majority (Sen. Angus King voted no; Sen. Susan Collins voted yes). In 2018, Senate Republicans voted to cut debate on all judicial nominees below the Supreme Court from 30 hours to just 2 hours (King and Collins voted no). Republican leaders on the Senate Judiciary Committee no longer consider ABA ratings in their nominee review or objections from home state senators. Trump judges confirmed by the Senate are already having a chilling effect on civil rights issues. 

While many vacancies have already been filled, there is still time to stop others that should be disqualified from judicial service. Find a full list of federal judicial nominees and their status in the Senate on the Senate Judiciary Committee website and find more background on the nominees below and others at Vetting Room. The worst of the worst are below and all are pending floor votes in the Senate. You can also see which of the nominees we’ve tracked have been confirmed or rejected and how King and Collins voted. 

THE ACTION

1. Call Collins and King and demand that they oppose the nominations of all extremist, unqualified judicial nominees, such as Justin Walker, whose vote for D.C. Circuit Court could come any time. Learn more below. 

    

2. Help generate national pressure around these nominees by sharing this call to action with friends in other states.
   

NOMINEES WITH IMMINENT VOTES

JUSTIN WALKER: Despite an unqualified rating from the American Bar Association, Walker was confirmed just last fall to a federal judgeship for the Western District of Kentucky (Collins voted yes; King voted no). Now, at 37, Walker is among the youngest nominees to the D.C. Circuit Court of Appeals, widely considered to be the second-most influential court in the country. Walker’s limited legal experience, hostility toward the Affordable Care Act, disdain for public education, and anti-labor positions are chief among the concerns of those opposed to his nomination, as are his past attacks on the Mueller investigation and claims that the FBI should be “an agent of the president.” Walker, an active member of the Federalist Society, clerked for Brett Kavanaugh during his tenure on the D.C. Court of Appeals, and was a vocal supporter of Kavanaugh’s nomination to the U.S. Supreme Court, claiming that adding Kavanaugh to the court would hasten the “end to affirmative action, an end to successful litigation about religious displays and prayers, an end to bans on semi-automatic rifles, and an end to almost all judicial [decisions allowing abortion].” During Walker’s brief time on the bench, he has presided over no trials that have gone to verdict or judgment. Despite the threat of a global pandemic and warnings from the Capitol’s attending physician, Senate Leader Mitch McConnell (R-KY) called the Senate back into session on May 4 for Walker’s confirmation hearing, which was held a few days later. Just before his confirmation, a federal judge requested an investigation into claims that McConnell pressured the judge whose place Walker would take into an early retirement so that Trump could fill the seat. Chief Justice John Roberts denied that request. A Senate vote is expected soon. 

NOMINEES CONFIRMED OR REJECTED

LAWRENCE VANDYKE: Confirmed by the Senate on Dec. 11. Collins and King voted No. (See the roll call.) VanDyke’s nomination to a lifetime position on the Ninth Circuit Court of Appeals was advanced over the objections of his home state senators, Nevada Democrats Jacky Rosen and Catherine Cortez Masto. VanDyke’s nomination is widely opposed by advocates for reproductive rights, LGBTQ equality, and environmental protection. He wrote a number of legal briefs supporting anti-choice laws that seek to limit or ban abortions, is a long-time member of the far-right, anti-choice Federalist Society, and is supported by the anti-choice Susan B. Anthony List. VanDyke’s history of opposing LGBTQ rights began just after college when he went to work for an anti-LGBTQ organization classified by the Southern Poverty Law Center as a hate group. He has authored or co-authored legal briefs that argued against marriage equality and supported a college student group that discriminated against LGBTQ students and a photographer who denied services to a same-sex couple. He opposed environmental protections at solicitor general for Montana and Nevada, working alongside mining companies to oppose environmental protections of animal habitats, waterways, and air quality. In his current position as a lead attorney for the Justice Department’s Environment and Natural Resources Division, he has supported the Keystone XL pipeline and worked to repeal protections against environmental damage from fracking. VanDyke received a “not qualified” rating from the American Bar Association.

PATRICK J. BUMATAY: Confirmed by the Senate on Dec. 10. Collins voted Yes and King voted No. (See the roll call.) Bumatay’s nomination to a lifetime position on the Ninth Circuit Court of Appeals was advanced over the objections of his home state’s senators, California Democrats Kamala Harris and Diane Feinstein. Bumatay, 41, interned for Kellyanne Conway as an undergrad at Yale University, where he was a vocal opponent of affirmative action. A member of the far-right Federalist Society since 2003, Bumatay has worked with the Department of Justice since 2017, where he helped implement the “zero tolerance” family separation policy under former Attorney General Jeff Sessions and was involved in overturning a federal policy that ensured fairness in federal sentencing for low-level drug offenses. He was also part of the team that put Neil Gorsuch and Brett Kavanaugh on the Supreme Court. In his nominee questionnaire to the Senate Judiciary Committee, Bumatay failed to disclose that he was admonished for prosecutorial misconduct by the Ninth Circuit (the same court for which he is nominated) over testimony he improperly solicited in a drug case. Among Harris’ and Feinstein’s objections are Bumatay’s limited trial experience and his unwillingness to answer Judiciary Committee questions about his work in the Trump administration. The committee voted along party lines to advance his nomination in November. The full Senate could vote at any time. 

SARAH PITLYK: Confirmed by the Senate on Dec. 4. Collins and King voted No.  (See the roll call.) Nominated to a lifetime federal judgeship for the Eastern District of Missouri, Pitlyk is a anti-choice attorney and Federalist Society member who clerked for Brett Kavanaugh. The American Bar Association unanimously rated her as “not qualified” due to her lack of experience: Pitlyk has never tried a case as lead or co-counsel and has never even taken a deposition. She is currently a special counsel for the far-right, anti-choice Thomas More Society. Almost all the cases she’s worked on have sought to erode reproductive rights. She argued to establish fetal personhood for frozen embryos, defended Iowa’s extreme abortion ban, has argued that surrogacy harms mothers and children, and was part of the legal team defending anti-abortionist David Daleiden, who faces criminal charges for fraud for faking videos and falsely accused Planned Parenthood of selling fetal material for profit. The Senate Judiciary Committee voted in October to advance her nomination. The full Senate could vote on her nomination at any time. 

STEVEN MENASHI: Confirmed by the Senate on Nov. 14, 2019. Collins and King voted NO. (See the roll call.) 
Menashi has been nominated to the Second Circuit Court of Appeals for a seat once held by the late Supreme Court Associate Justice Thurgood Marshall. Menashi, currently an associate counsel to Donald Trump, has a long record of opposing equity for people of color, women, and LGBTQ individuals in a series of editorials published in the 1990s and 2000s. He clerked for Supreme Court Justice Samuel Alito and was a partner at Kirkland & Ellis and an assistant professor of law at George Mason University. He joined the Trump administration in 2017 and moved to the White House in 2018, after a stint at the Department of Education as the acting general counsel. Menashi has been also been member of the Federalist Society for more than a decade. From the Alliance for Justice:

“Menashi compared the collection of race data in college admissions to Germany under Adolf Hitler. He denounced women’s marches against sexual assault and bemoaned the fact that schools could discipline students who harassed women. He opposed “radical abortion rights advocated by campus feminists and codified in Roe v. Wade.” He argued against diverse communities, writing that ‘ethnically heterogeneous societies exhibit less political and civic engagement, less effective government institutions, and fewer public goods.’ In another instance, Menashi defended Italian leader Silvio Berlusconi for stating ‘the obvious’ when he wrote of “the superiority of Western civilization over Islam.” Menashi dismissed education about multicultural awareness (which ‘was never about understanding non-Western cultures’ but ‘about denigrating Western culture to promote self-esteem among ‘marginalized’ groups’). In college writings, he defended a fraternity that threw a ‘ghetto party,’ characterizing the event as ‘harmless and unimportant.’ 

Republicans advanced Menashi’s nomination quickly and silently, most likely in an effort to limit the time progressive groups have to launch campaigns to raise awareness of Menashi’s record on LGBTQ rights, women’s rights, and other issues. Despite Republicans’ apparent desire to see him confirmed, Menashi came under fire from Republicans and Democrats on the Senate Judiciary Committee during his confirmation hearing for his refusal to answer their questions. A committee vote is expected soon and it’s likely a full Senate vote will come shortly after. Read AFJ’s full review of Menashi’s record.

MATTHEW KACSMARYK: Confirmed by the Senate on June 19, 2019. Collins and King both voted NO. Nominated to a federal judgeship for the Northern District of Texas, Matthew Kacsmaryk is known using “religious liberty” as a justification for discrimination against LGBTQ people and women. He currently works for the First Liberty Institute, a large legal organization exclusively devoted to these kinds of cases. Kacsmaryk opposed the Equality Act, which seeks to add sexual orientation and gender to the protections of the Civil Right Act (Susan Collins is a proud sponsor of the bipartisan Equality Act and presents herself as a champion of equal rights for LGBTQ people, so a vote to confirm him would directly contradict that stance). He helped defend a Mississippi law that allows businesses and government workers to refuse service to LGBTQ individuals, and challenged the ACA’s contraception mandate. He has been a vocal opponent of Obama’s executive order prohibiting discriminating against LGBTQ individuals by government contractors, accusing it of “favoring sexual revolution fundamentalism over the sincerely-held religious beliefs of Americans,” and he has challenged Obama’s directive that schools accommodate students’ “gender identity” in gender-specific public facilities. His work and his writings make it clear that he will use his position in the federal courts to further religious justification for discrimination against LGBTQ people and women. Because of the level of Democrat opposition to his nomination, moderate republicans such as Collins will be key deciding votes.

HOWARD NIELSON: Confirmed by the Senate on May 22, 2019. Collins and King both voted NO. Nominated to be federal judge for Utah, Nielson is an ideological extremist and political partisan. He is best known for his defense of “Prop 8,” the California ballot initiative that restricted marriage to heterosexual couples, and his unsuccessful attempt to force the presiding judge to recuse himself because he was gay. As part of the case, he argued that sexual orientation is a choice, and that it can be changed through therapy. Neilson argued to the Supreme Court that Texas should uphold restrictive regulations that would have shut down most abortion clinics, and represented the NRA’s efforts to overturn gun regulations. He also represented congressional Republicans in their opposition to EPA greenhouse gas regulations for industrial polluters. As a member of a DOJ intern screening committee, Nielson violated department rules by eliminating those identified as Democrats, leading the Inspector General to state that those involved should never again have positions in any federal agency. There is also evidence to suggest Nielson was involved in Stephen Bradbury’s “torture memos,” which John McCain described as permission to torture. Nielson has refused to disclose the nature of his involvement.

KENNETH BELL: Confirmed by the Senate on May 22, 2019. Collins voted YES and King voted NO. Nominated to serve in the Western District of North Carolina, Bell is an extreme partisan who is known for his vocal calls for Hillary Clinton to face criminal charges for her use of an unsecured email server. He stated, “If I had done what Ms. Clinton has done, I would have been prosecuted, and I would have been guilty.” In another article, Bell argued that Clinton’s actions might suggest “disloyalty to the United States.” Bell is a frequent donor to Republican legislators, and also represented two who faced corruption charges. During his own campaign for the House, he was heavily criticized for using campaign funds to pay his own mortgage and car payments.

STEPHEN CLARK: Confirmed by the Senate on May 15, 2019. Collins voted YES and King voted NO. Nominated to the eastern district of Missouri at a time when the state is preparing to pass one of the most restrictive abortion bans in the US, Stephen Clark has been a lawyer and activist against women’s reproductive rights and same-sex marriage equality for years. As the director of Lawyers for Life, a right-to-life group, Clark has advocated extensively for pro-life groups and causes, and has statements on record criticizing Roe v. Wade, Planned Parenthood, and same-sex marriage. Their newsletter said “Roe v. Wade gave doctors a license to kill the unborn,” and that Roe v. Wade was “bad law.” Clark advocated for medical schools to stop partnering with Planned Parenthood, suggesting that the schools were “training the abortionists of the future.” He has counseled right-to-life groups on obstructionist tactics against abortion providers for so-called “coerced abortions.” Clark also notably represented a woman in a case involving two frozen pre-embryos in which Clark argued that the pre-embryos should be treated as “children” with custody concerns. In a lawsuit against contraceptives coverage under the Affordable Care Act, Clark used misinformation from medical advisors who said using contraceptives leads to “increased risk-taking and sexual behavior.” These medical advisors have been debunked for their unproven theories. An opponent of same-sex marriage, Clark has said: “one of the next evolutions of same-sex marriage is polygamy.”

WENDY VITTER: Confirmed by the Senate on May 15, 2019. Collins and King both voted NO. Nominated for the eastern district of Louisiana, Vitter has a long history of anti-abortion comments and speeches, all of which she omitted from her Senate Judiciary Questionnaire that all nominees are required to complete. Her legal background includes serving as a prosecutor and Chief of Trials under former New Orleans District Attorney Harry Connick Sr., whose office was found to consistently violate citizens’ Constitutional rights. Beginning in 1993, In Vitter took a 19-year break from her legal career to campaign for her husband, Republican David Vitter, during his career as state representative, US House Representative, and US Senator. She is now general counsel for the Roman Catholic Archdiocese in New Orleans. She has been very active in the anti-abortion movement, and has promoted shockingly misleading and inaccurate information about both abortion and birth control. She participated in a panel where she encouraged women to read and distribute a brochure stating that “the pill kills,”  which included outrageous and false claims that women who take birth control pills are more likely to cheat on their partners, and have fertility problems and/or unhealthy children. She also urged an audience to encourage doctors to distribute false information about abortion, which she lied about in her Judiciary Committee hearing. Vitter is also just shy of the 12 years of legal practice required by the American Bar Association to sit on the federal bench.

PATRICK WYRICK: Confirmed by the Senate on April 10, 2019. Collins voted YES, King voted NO. Nominated to be federal judge for the western district of Oklahoma, Wyrick is known for being closely tied to Scott Pruitt, enabling many of his unethical relationships to fossil fuel industry insiders and lobbyists as well as rollbacks of Oklahoma’s environmental regulations. Wyrick has only 9 years of judicial experience, short of the American Bar Association’s recommendation for federal judges. His career path is paved with an extreme, conservative stance in many controversial issues including restrictions of reproductive rights including access to Plan B and ultrasound requirements, challenging the ACA, defending Oklahoma’s anti-Muslim constitutional amendment, and defending the use of a controversial drug in death penalty cases. He was also notably criticized by Supreme Court justices for misrepresenting scientific evidence in oral arguments to the Court.

THOMAS FARR: Update 11/29: Republican senators Tim Scott (SC) and Jeff Flake (AZ) announced their intentions to oppose Farr, dooming his chances of confirmation. Collins released a statement indicating she would have confirmed him, King was opposed. Nominated for a district judgeship in the Eastern District of North Carolina, Farr is considered very qualified with almost 40 years of legal experience. This only makes him more concerning, however, as his legal work has not only been incredibly partisan, but has also been racially discriminatory.  He is well-connected to the Republican Party, has provided legal representation to the party, and has been a generous donor to Republicans, several of whom are still members of Congress. His legal work has opposed Democratic gerrymandering but has supported Republican, racially discriminatory gerrymandering. He defended NC’s voter identification law, which the DOJ argued disenfranchised minority voters, arguing that voter ID was a “minor inconvenience.” He defended “election reform” measures that were also criticized as disenfranchising minority voters. He helped draft NC’s voter suppression law, and a newly released Department of Justice memo from 1991 shows that, contrary to his testimony, he was involved in “ballot security” activities while working for the campaign of Jesse Helms, which included a postcard campaign aimed at intimidating black voters.

DAVID PORTER: Confirmed by the Senate on Oct. 11, 2018. Collins voted YES, King voted NO. Nominated to the 3rd Circuit Court of Appeals, Porter is a partner at Buchanan Ingersoll & Rooney in Pittsburgh, Pennsylvania, and is a graduate and trustee of Grove City College, a private religious college that has admitted to turning down federal financial aid to skirt Title IX-mandated civil rights protections for LGBTQ individuals. His only judicial experience is two years as a law clerk in the early 1990s. In 2014, he was rejected as a potential nominee for a seat on the U.S. District Court for the Western District of Pennsylvania because of his extremist ideology. He has criticized Roe v. Wade as having a “shaky theoretical foundation;” opposes gay marriage, has argued against the minimum wage law, and has been a vocal opponent of the Affordable Care Act. He co-founded the Pennsylvania Judicial Network, an affiliate of the Koch brothers-funded Judicial Crisis Network, created in part to oppose the Supreme Court nomination of Sonia Sotomayer. Porter’s nomination comes over the repeated objections of Sen. Bob Casey (D-PA), who has not released his “blue slip” on Porter’s nomination. Although not a rule, Senate protocol has long held that judicial nominees aren’t advanced unless both of the nominee’s home state senators issue a blue slip—a blue form that signals approval of a nominee. Under the Obama administration, Grassley refused to advance the nomination of Rebecca Ross Haywood for the same court Porter hopes to join when the other Pennsylvania senator Pat Toomey withhold his blue slip. Now that it’s a Republican president’s nominee, Grassley has decided to ignore the blue slip tradition. His nomination is opposed by the Alliance for Justice, the National Employment Lawyers Association, NARAL Pro-Choice America, and the Leadership Conference of Human and Civil Rights.

RYAN BOUNDS: Nomination withdrawn amid public outcry on July 20, 2018. Nominated to be a federal judge for the critical 9th Circuit Court of Appeals, Bounds has been rejected by senators from his home state of Oregon, Sen. Ron Wyden (D) and Sen. Jeff Merley (D). Both senators refused to issue the traditional blue slips to the Senate Judiciary Committee, pieces of paper used to signal approval of a nominee. Traditionally, the refusal to return a blue slip from a nominee’s home-state senator effectively ended that nominee’s chances for confirmation. But Republicans in the Senate have chosen not to honor that tradition. Bounds would be the first nominee confirmed without a blue slip. Among the concerns raised by the Oregon senators and others is Bounds’ lengthy record of racial and bigoted slurs, writings, and actions while an undergraduate at Stanford University. He called activism by people of color and LGBTQ individuals as a “pestilence” that “stalks us” and criticized the university’s policy of identifying and expelling sexual assault offenders, writing “Expelling students is probably not going to contribute a great deal toward a rape victim’s recovery.” Bounds failed to disclose these and other controversial writings to the judiciary committee, drawing condemnation from Democrats. Like most of Trump’s nominees, Bounds is a member of the ultra-conservative Federalist Society, which advocates rulings that restrict reproductive rights, limit voting access, and overturn consumer and environmental protections.There are also concerns about Bounds’ ties to Republican Congressmen Greg Walden, whose chief of staff is Bounds’s sister.

ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.

KYLE DUNCAN: Confirmed by the Senate on April 24, 2018. Collins voted YES; King voted NO. Nominated to the already conservative 5th Circuit Court of Appeals, Duncan is a particularly dangerous nominee because of his success rate in litigating within the Supreme and lower appellate courts, and his experience promoting conservative religious causes and fighting protections for reproductive freedom and LGBTQ rights. Known most recently for representing the school board that refused transgender student Gavin Grimm’s request to use his school’s male restroom, he also defended a North Carolina House bill that essentially sanctioned government discrimination against LGBTQ individuals, and Hobby Lobby’s challenge to the ACA contraception mandate. Throughout his career, Duncan has also fought to make it more difficult for people of color to vote, for immigrant families to stay together, and for the juvenile justice system to be reformed. Duncan has indicated he will not respect precedent when he disagrees with the outcome of a case. After the Supreme Court decided in favor of same-sex marriage, Duncan said the case “raises a question about the legitimacy of the Court.”  He is likely to continue to use his position in the judicial system to further his own ultra conservative views rather than to uphold the law.