It was a simple question with a slightly sinister purpose.
“Have any of you not tried a case to verdict?” Sen. John Kennedy (R-LA) asked the U.S. District Judge nominees at a Senate Judiciary Committee hearing last week.
Five white men sat at the rectangular table in front of the dias. Only one, Matthew Petersen, the nominee for the U.S. District Court for the District of Columbia, raised his hand.
Kennedy surely knew it would play out this way. After all, on page 29 of the 40-page questionnaire Petersen had filled out for the committee, he explained that he’d never appeared “in court due to the nature of my legal practice.”
But sometimes a bit of Kabuki Theater is effective bait. And the senator had both his opening and his obligatory five minutes of questioning ahead.
“Have you ever tried a jury trial?”
“I have not.”
“State or federal court?”
“I have not.”
Political humiliations like these don’t often happen in public view, let alone at the hands of a member of the same political party of the nominating administration. And, sure enough, the video went viral. By Monday, Petersen had decided to withdraw his nomination. Kennedy, it appeared, had got his man.
Except, Petersen wasn’t the one he was truly after. Indeed, the real subject of the senator’s ire appears to have been the person who delivered Petersen to the committee in the first place: White House Counsel Don McGahn.
More than anyone who has occupied the post before, McGahn has exerted an outsized influence over the nation’s judiciary. He has put loyal allies in key positions at the Department of Justice and he has taken the leading role in pushing nominees for the bench.
Petersen was his protege. The two served together at the FEC, during which time McGahn orchestrated and received a remarkable degree of ideological obedience. The three Republican members were lockstep on virtually all voting matters. When Trump won and plucked McGahn as his top lawyer (after having been the campaign’s counsel), the alliance continued. On page 40 of his questionnaire, Petersen admitted that he found out he was a candidate for the judicial vacancy after being “contacted by the White House Counsel’s Office.”
He’s not the only nominee with such an origin story.
Brett Talley, another infamous and failed judicial nominee, is the husband of McGahn’s chief of staff—a fact he failed to disclose on his own questionnaire. McGahn’s deputy, Gregory Katsas, was nominated and confirmed to serve on the U.S. Court of Appeals for the D.C. Circuit. And Kyle Duncan, who was nominated to the U.S. Circuit Court of Appeals for the 5th Circuit, was pushed so hard by McGahn that it grated the senators considering his nomination.
Among them was Kennedy who said he had “first learned about Mr. Duncan’s nomination when I received a phone call, actually a series of phone calls from Mr. Don McGahn.”
Those calls, Kennedy added, weren’t pleasant. And during the confirmation hearing, the bitterness clearly lingered. At one point, Kennedy challenged the nominee to prove that he was “the second coming of Justice Holmes or Justice Scalia, and not the second cousin of somebody who is politically connected in the Washington swamp.”
It was assumed that the swamp creature he was referencing was McGahn, who served at the powerhouse law firm Jones Day after leaving the FEC in 2013.
In an interview with a Louisiana radio station on Monday, Kennedy insisted that his undressing of Petersen had not angered President Trump. In reality, sources tell The Daily Beast, the White House was quite upset with the spectacle that the senator had produced. The White House press shop didn’t say much beyond confirming that Petersen’s nomination was withdrawn. And Kennedy, when asked, downplayed any friction.
"I don’t know anything about the vetting process," he told The Daily Beast. "I’m a freshman senator. The closest I get to the White House is a tour. So I don’t know how it works over there. All I see is the end product. I support President Trump enthusiastically... But I’m not going to endorse an idea or a person blindly. That’s my job as a Senator... and that’s what I did. And I think Mr. Petersen, again, I feel bad for him, but I think he did the right thing stepping aside."
But the frustration being felt over McGahn’s commandeering of the judicial nomination process is shared by numerous other senators on the Judiciary Committee.
“He is having an outsized influence and it is an administration that, quite frankly, when it comes to the judiciary and other appointments, doesn’t respect qualifications,” said one Democratic Senate aide who, like others, spoke on condition of anonymity to more honestly describe the current state of play.
The White House counsel’s office has always played a role in judicial nominees, but more as a tool for vetting than for nominating. That’s because there used to be more senatorial guardrails on the nomination process. There was the 60-vote threshold for confirmation, which Democrats did away with for certain court nominees and Republicans eliminated for those nominated to the Supreme Court. And there was the blue slip rule, which allowed each senator from the state of the judicial vacancy to have the ability to stop a nominee from being considered.
This led to more seasoned, moderate choices for those posts. It also led to more gridlock.
Once Trump became president, Senate Majority Leader Mitch McConnell (R-KY) argued for blue slips to be ceremonial. Senate Judiciary Chairman Chuck Grassley (R-IA) soon agreed to follow suit.
Without needing to negotiate with home state senators, the White House counsel’s office has moved swiftly. Michael Brennan, the nominee to fill the vacancy on the U.S. Court of Appeals for the 7th Circuit, didn’t have a blue slip from Sen. Tammy Baldwin (D-WI). On his questionnaire, however, he said he was contacted by the White House counsel’s office to gauge his interest in the post.
Joan Larsen, was confirmed to the U.S. 6th Circuit Court of Appeals, without the sign off of Michigan Democratic senators, according to a Democratic aide. On her questionnaire she too said that she had “been in contact with officials from the White House Counsel’s Office” and that, she had “interviewed with White House Counsel Don McGahn.”
Amy Coney Barrett, who was confirmed as the United States circuit judge of the United States Court of Appeals for the 7th Circuit, stated in her questionnaire that the chief of staff of Indiana’s Senator, Todd Young (R-IN), first mentioned to her that she’d been discussed for the post. It’s not clear who was discussing her. But four days later, she was in contact with the White House Counsel’s office and shortly after that was interviewing with McGahn.
Craig Hollman, the Government Affairs Lobbyist for the good government group Public Citizen, said that the problem with the current system was not, necessarily, that McGahn had centralized control of the nomination process so much as the type of picks that he was making. They seem, Hollman told The Daily Beast, “nearly all based on ideology rather than merit or experience.”
Already, the administration has experience a series of embarrassments that seem unmatched in recent history. Four nominees have drawn “not qualified” ratings from the American Bar Association. Talley was exposed as having blogged under a pseudonym about the KKK and chased ghosts around haunted properties in Alabama. Petersen, in his resignation letter, acknowledged that he had become “a distraction.”
And yet, the pace of confirmations is torrent. The Senate has already confirmed 12 appeals court judges, a record for the number in a president’s first year. And with the GOP likely to have fewer major legislative pursuits next year—and with the nomination process so centralized—that number will likely rise steeply, absent another Petersen moment.
“The torrid pace of all this stuff is remarkable,” said a Senate Judiciary Committee aide. “In the next nine months, as legislating cools down, I think you will just see a ton of nominees go through.”
With reporting by Andrew Desiderio
Correction: An earlier version of this piece said Sen. Joe Donnelly (D-IN) was not consulted on Barrett's nomination. However, the Senator did turn in a blue slip, according to a local press report.