The Trump White House Is Trying to Hide Its Judicial Nominees From You

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes.

Over the last seven weeks, Senate Republicans have picked up the pace in confirming judges whose unifying characteristic is their desperation to demonstrate their loyalty to President Donald Trump above all else. What’s worse, the Senate is processing them with less public scrutiny than usual and little resistance, even by Senate Democrat standards. And with a new vacancy on the Eighth Circuit, Trump has yet another chance to reinforce Republican dominance on the nation’s most lopsided appeals court.

Vacancies

In the last seven weeks, only three judges have announced retirement plans: Southern District of Ohio Judge Michael Watson, District of Minnesota Judge Patrick Schiltz, and Eighth Circuit Judge Duane Benton, all of whom were appointed by President George W. Bush in the mid-2000s. Watson assumed senior status on November 1, and Schiltz will do so in July 2026. Benton will remain in active service until his successor is confirmed. 

There is no federal appeals court with a starker partisan breakdown than the Eighth Circuit: Ten of the court’s 11 active judges (and 11 of 12 judges overall) were appointed by Republican presidents. Trump seated four of those judges in his first term, two of whom were deemed “Not Qualified” by the American Bar Association. Trump’s opportunity to replace Benton (and perhaps others) may not remake the court, but it can reinvigorate it and lock in a Republican ultra-majority for decades to come.

You won’t find James Ho’s narcissistic bombast, Kyle Duncan’s antagonistic hostility to all things LGBTQ+, or Lawrence VanDyke’s embarrassing need for attention in Benton’s opinions. But he’s a reliable conservative vote nevertheless—and an important one on a court already skewed hard to the right. Back in August, Benton wrote an opinion for the full Eighth Circuit upholding Arkansas’s ban on gender-affirming medical care for minors, relying largely on the Supreme Court’s decision in United States v. Skrmetti, which held that a similar Tennessee law did not impermissibly discriminate on the basis of “sex” or “transgender status.” Last summer, Benton held unconstitutional a Minnesota law that banned 18 to 20-year olds from carrying handguns in public because “the Second Amendment’s plain text does not have an age limit,” and 18 to 20-year olds “are unambiguously members of the people” on whom the Amendment confers a right “to keep and bear Arms.” 

Benton sits in Missouri, which gives Trump a deep well from which to pull potential replacements. Trump has already made four appointments this term to the state’s federal district courts—Josh Divine, Maria Lanahan, Cristian Stevens, and Zachary Bluestone—three of whom are 39 or younger, including Divine, who is only 35. Trump’s Solicitor General, D. John Sauer, 50, is a former Missouri Solicitor General and has shown on multiple occasions that he’s willing to debase himself at Trump’s behest. Erin Hawley, 46 and the wife of Missouri Senator Josh Hawley, has spent her career opposing abortion and LGBTQ+ rights. All will surely get consideration for Benton’s seat.

Nominees and Hearings

Since the last installment of this column, Trump has picked five more district court candidates. In late September, Trump chose William Crain for the Eastern District of Louisiana and Alexander Van Hook for the Western District of Louisiana. 

Van Hook has spent nearly all of his 25-year legal career as a federal prosecutor in Louisiana, where he was most recently the Acting United States Attorney in the Western District of Louisiana. Crain is a Louisiana Supreme Court justice with a troubling record even for a Louisiana Supreme Court justice. He wrote an opinion striking down Covid-related executive orders aimed at limiting social gatherings. He dissented when the Louisiana Supreme Court vacated a life sentence after finding that the defendant’s counsel provided ineffective assistance. He also voted against permitting abortion clinics to continue to operate temporarily after the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization prompted the state’s “trigger” abortion ban to take effect.

On October 23, Trump also picked Aaron Peterson for the District of Alaska, Nicholas Ganjei for the Southern District of Texas, and David Wilkerson Fowlkes for the Western District of Arkansas. Peterson is a lifelong state prosecutor. Ganjei is the current U.S. Attorney for the Southern District of Texas, and previously served as Republican Senator Ted Cruz’s Chief Counsel. Fowlkes is also a career federal prosecutor, currently serving as the U.S. Attorney for the Western District of Arkansas. 

Perhaps more troubling than the nominees themselves is the secrecy surrounding their nominations. In late September, the White House sent background materials for Crain and Van Hook to the Judiciary Committee. By informal custom, the Committee typically receives this information at least 28 days before a nominee’s hearing to give Committee members ample time to do their due diligence. But Trump didn’t make the Louisiana nominations public until October 20—just two days before their hearing on October 22. Similarly, Trump waited until yesterday—November 12—to announce the nominations of Peterson, Ganjei, and Fowlkes, even though Reuters confirmed that the Judiciary Committee received their nominee questionnaires weeks ago.

That’s extremely unusual, if not unprecedented. It’s become settled practice—in prior Republican and Democratic administrations alike—for the White House to publicly announce the nominee at the same time it sends their materials to the Committee, in order to afford the public an opportunity to weigh in as well. The importance of this kind of scrutiny has never been more obvious: Think back to everything we learned about the unfitness for judicial office of, say, Emil Bove in the four weeks between his public nomination and hearing. It’s probably no coincidence that Trump stopped giving advance notice after the circus that was Bove’s confirmation. By doing so, the White House is effectively cutting the time a nominee is under the public microscope in half. 

 And perhaps more troubling still is that Committee Democrats haven’t said a thing about it. No one mentioned during Crain and Van Hook’s October 22 hearing about how the public was kept in the dark about their nominations until 48 hours earlier. No one objected to the wanton erosion of yet another institutional norm. No one put the White House and Committee Republicans on notice that Democrats know what Trump is doing and aren’t going to let him get away with it. Then again, we are talking about Senate Democrats, a group who has never seen a fight they couldn’t fold from fast enough.

Confirmations

With little governing to do during the shutdown, Senate Republicans confirmed 11 judges since October 1, including four circuit judges: Jennifer Mascott to the Third Circuit, Rebecca Taibleson to the Seventh Circuit, Joshua Dunlap to the First Circuit, and Eric Tung to the Ninth Circuit. Dunlap is the only one to take a seat previously held by a Democratic appointee, and the first Trump appointee to the First Circuit in either term. At the district court level, the Senate also confirmed Harold Mooty, Bill Lewis, and Edmund LaCour to district court seats in Alabama, Anne-Leigh Gaylord Moe and Jordan Pratt to district court seats in Florida, William Mercer to a district court seat in Montana, and Chad Meredith to a district court seat in Kentucky. 

Mascott’s confirmation on October 9 is notable for its timing: She was nominated and had her hearing months after Dunlap and Tung, but jumped the line for confirmation so she could be seated days before the en banc Third Circuit heard a challenge to New Jersey’s assault weapons ban. Given the closely-divided composition of the Philadelphia-based appeals court, Mascott could end up casting the decisive vote to strike down New Jersey’s ban, which would create the circuit split the Supreme Court’s Republican justices have been craving so they can take the case and further erode state-level efforts to protect their citizens from mass slaughter. 

What’s Next

There are four North Carolina district court nominees on the Senate floor awaiting confirmation. The two Louisiana district court nominees will likely be voted out of committee before Thanksgiving, and the three new district court nominees—Peterson, Ganjei, and Fowlkes—will have their hearing on November 19. 

Two Mississippi district court nominees—Robert Chamberlin and James Maxwell, both current Mississippi Supreme Court justices—have been stuck in committee for months after their September hearing. The precise reason has not been disclosed, although it appears to involve some intra-caucus beef between North Carolina Senator and Judiciary Committee member Thom Tillis and Mississippi Senator Roger Wicker. Given that this is more resistance than Senate Democrats have managed so far, I’ll take it.