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Confirmation Expected for Another ‘Unqualified’ Trump Judge Pick

Dec. 4, 2019, 9:50 AM

A Donald Trump judicial nominee criticized for her anti-abortion advocacy and considered unqualified by the American Bar Association is poised for confirmation by the Republican-led Senate.

The Senate voted 50 to 43 on Dec. 3 to invoke cloture, or end debate, on Sarah Pitlyk‘s nomination to the U.S. District Court for the Eastern District of Missouri. Her confirmation vote is scheduled for Dec. 4, along with several other nominees.

The votes are part of the Senate’s push to confirm more nominees in the next few weeks, and are included in Trump’s goal of surpassing 180 judicial appointments by the end of the year. So far, he’s appointed more than 160, including Supreme Court Justices Brett Kavanaugh and Neil Gorsuch.

Pitlyk is a former appellate law clerk for now-U.S. Supreme Court Justice Brett Kavanaugh who works for the Thomas More Society, the “national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty.”

Her nomination is opposed by mostly Democratic lawmakers and liberal groups who say her record of advocacy against abortion would make her biased as a judge.

“I’m troubled by Ms. Pitlyk’s record and lack of experience, and I urge my colleagues to join me in opposing her nomination,” California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said on the Senate floor Dec. 3.

Feinstein pointed to what she called misleading statements by Pitlyk on reproductive health issues. She said Pitlyk claimed in a Supreme Court amicus, or friend-of-the-court, brief that in vitro fertilization leads to higher rates of birth defects.

In that 2017 brief from a case that wasn’t heard by the justices, Pitlyk and her colleague also said surrogacy has “grave effects on society, such as diminished respect for motherhood and the unique mother-child bond.”

While most opposition to Pitlyk’s is from the left, she’s also opposed by Republican Sen. Susan Collins. The Maine lawmaker said last month she would not vote for Pitlyk because her “strident advocacy” made her question whether she could set aside her personal views when weighing cases.

Collins’ opposition alone won’t derail Pitlyk’s confirmation. Senate Republicans, who control the chamber, can weather a few defections and still push through nominees.

‘Not Qualified’

During her confirmation hearing, Pitlyk and her Republican defenders on the Senate Judiciary Committee said her personal views on abortion wouldn’t affect her judicial performance.

Pitlyk was also unanimously rated “Not Qualified” for a federal judgeship based on her lack of experience by the American Bar Association committee that reviews judicial nominees. She is one of nine Trump nominees to receive such a rating from the ABA.

The committee typically only gives out positive ratings to federal judicial nominees that have at least 12 years of experience in the practice of law, ABA Standing Committee on the Federal Judiciary Chairman William Hubbard wrote.

“However, Ms. Pitlyk’s experience to date has a very substantial gap, namely the absence of any trial or even real litigation experience,” Hubbard said in a letter on the rating to the Senate committee.

Several Republican lawmakers on the Judiciary Committee questioned the leanings of the ABA after Pitlyk’s rating, saying it has a liberal bias. That has since been a recurring talking point for committee members, though 97% of Trump’s nominees have received favorable ratings.

Appellate Nominee Hearing

Also on Dec. 4, the Judiciary Committee will hold a confirmation hearing for appeals court nominee Andrew Brasher. If confirmed, the 38-year-old would be among the youngest circuit court judges.

Brasher, who has currently been a judge on the U.S. District Court for the Middle District of Alabama for about six months, is nominated to the U.S. Court of Appeals for the Eleventh Circuit. If confirmed, it would be a quick promotion from his current post.

It’s not uncommon for presidents to elevate their judicial appointees from district to appellate courts, “but they usually wait a bit, so they can get some experience on the bench,” Carl Tobias, a professor at the University of Richmond School of Law who follows judicial nominations, said.

Before becoming a judge, Brasher was Alabama solicitor general and clerked on the Eleventh Circuit, which covers Georgia, Alabama, and Florida.

He argued three times at the Supreme Court as the Alabama solicitor general, including defending the state in a lawsuit alleging racial gerrymandering. In his previous go around with the nominations process, he received a “Qualified” rating from the ABA. He was confirmed to the district court, 52 to 47.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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