Conservatives Push Ex-Cruz Aide to Be Tapped for Federal Court

A group of conservatives took the unusual step of formally calling for attorneys to be nominated to federal judgeships in Texas.

The May 6 letter to Sens. John Cornyn (R) and Ted Cruz (R), a copy of which was obtained by Bloomberg Law, urged that former Cruz chief counsel Michael Berry be nominated for a seat on the Northern District of Texas.

The letter also called for the nomination of Kasdin Mitchell, a Kirkland & Ellis partner and former clerk for US Supreme Court Justice Clarence Thomas. President Donald Trump has since announced plans to nominate her for the same Dallas-based court.

The conservatives wrote that the opportunity to appoint federal judges by Trump and confirmed by the Republican-controlled Senate “demands swift and decisive action.”

“Each day these seats remain vacant is a day that the rule of law is diminished, justice is delayed, and the promise of a constitutionalist judiciary goes unfulfilled,” the letter reads.

The lead signatory is Kenneth Blackwell, who works with the Family Research Council and the Trump-aligned America First Policy Institute. He declined to comment on how it came together or why it was sent beyond what the letter says.

Blackwell said he didn’t expect a response from Cruz, as he understood that the senator had recommended Berry for the seat, and hadn’t yet gotten a response from Cornyn. A spokesperson for Cruz didn’t immediately say whether he had recommended Berry to the White House.

“I signed a private letter advocating the senators to do all that they could to make sure two excellent candidates, who are favorites among the conservative legal community, were sent to the White House with their support,” Blackwell said.

While judicial nominees are often the subject of letters of support, it’s unusual for there to be formal advocacy for a certain candidate to be recommended for a seat.

Berry, who worked on judicial nominations for Cruz earlier during Trump’s second administration, didn’t return a request for comment. He was also executive director of AFPI’s Center for Litigation, and has spent most of his legal career at First Liberty Institute, which litigates religious liberty cases.

“Senator Cruz has sent his recommendations for nominees to fill all current vacancies to the White House, and we are confident that every judicial vacancy in Texas will be filled by an excellent jurist,” a spokesperson for Cruz said.

A spokesperson for Cornyn didn’t address the letter but pointed to a May 11 press release praising Mitchell’s nomination.

Texas Judgeships

In Texas, top applicants for judgeships are first screened by a bipartisan panel set up by the senators, called the Federal Judicial Evaluation Committee. The top ranked candidates are interviewed by the Texas senators, who then submit their chosen names to the White House.

Two former Cruz chief counsels have been appointed by Trump during his second term: Nicholas Ganjei sits in Houston, and Andrew Davis in Austin. Former Cornyn chief counsel Ryan Raybould was recently confirmed as US attorney in the Northern District of Texas.

Mike Fragoso, former chief counsel to then-Senate Majority Leader Mitch McConnell (R-Ky.), said groups typically don’t get involved in nominations like this until a pick is announced.

And he said that Cornyn may not be as eager to appease those in Trump’s orbit now that the president hasn’t endorsed him in his Senate primary fight. Trump on Tuesday endorsed Cornyn’s opponent, Texas attorney general Ken Paxton.

“I think Cornyn’s calculus on all these things is probably a little different than it was a month ago,” said Fragoso, now a partner with Torridon Law.

Some of the same conservatives had signed a letter last year that opposed the nomination of Rebecca Taibleson for the US Court of Appeals for the Seventh Circuit, suggesting she wasn’t conservative enough for the court. The White House backed Taibleson and she defended her record at her nomination hearing. She was confirmed on a 52-46 vote.

Prominent Court

The Northern District of Texas emerged as a hotbed for challenges to the Biden administration, as conservative litigants seized on the court’s smaller divisions to try and get cases before specific judges they viewed as friendly to their cause.

All three of the current vacancies—including the seat Mitchell is nominated for—are in the Dallas division, which has eight active judgeships.

Chief Judge Reed O’Connor, who’s based out of nearby Fort Worth, has started hearing cases in Dallas as the seats remain empty, according to a recent court case assignment order.

If Trump fills all the vacancies in the district, he will have nine appointees among the 12 active judges.

The conservatives highlighted the importance of the district court in their letter, saying it’s “been at the forefront of landmark litigation touching on regulatory overreach, Second Amendment rights, religious liberty, border security, and the proper limits of executive agency power.”

“The men and women who serve on its bench must possess not only the highest legal acumen but an unwavering commitment to the original meaning of the Constitution and the rule of law,” the letter reads. “We are confident that both Kasdin Mitchell and Michael Berry meet that standard in full.”