Democrats Let Down Left at First Trump Judge Nominations Hearing

Progressive advocacy groups are dismayed by what they say was a lackluster effort by Senate Democrats to scrutinize President Donald Trump’s first slate of judicial nominees.

Progressives said they expected Democrats to closely question the young conservatives Trump had tapped for the bench, particularly after four years of watching Republicans aggressively interrogate Joe Biden’s judicial nominees, many of whom were women and people of color with non-traditional careers in civil rights and public defense.

While it’s not unusual for senators to dip in and out of confirmation hearings, only six of the panel’s 10 Democrats posed any questions of the first nominees. Progressive activists said committee Democrats missed an opportunity to publicly interrogate and criticize the records of these nominees—and to set the tone for confirmation battles ahead.

“It’s really quite wild to me that there wasn’t more of a fight here, especially given the moment and given the attack on the rule of law that we’re seeing from this administration,” said Jake Faleschini, justice program director at Alliance for Justice.

After making 234 lifetime appointments to the courts in his first term, Trump gets a chance to further build on his judicial legacy that includes three Supreme Court appointees.

Trump has put a premium on young lawyers with experience on issues critical to the conservative legal movement. Trump has also spent the early stages of his presidency attacking judges, including his own appointees, who rule against him and his allies have suggested the White House need not comply with orders it disagrees with.

Trump’s first slate of nominees include Whitney Hermandorfer, director of strategic litigation in Tennessee’s Attorney General’s Office, who defended the state’s near total ban on abortion in instances when life-threatening pregnancy complications arise. She also argued against a Biden Education Department Title IX rule aimed at strengthening protections for transgender students.

Also part of the line up was Missouri Solicitor General Joshua Divine, who challenged the Food and Drug Administration’s regulations of the abortion pill mifepristone, alongside fellow district court nominee Maria Lanahan. Divine also defended the state from litigation against its law prohibiting transgender adolescents from accessing puberty blockers.

“It was a bit disappointing to me to not see more of a commitment to have senators in attendance asking questions of these nominees, especially because this is the first round,” said Alison Gill, director of nominations and democracy at the National Women’s Law Center.

Sen. Sheldon Whitehouse (D-R.I.) talked about Trump’s rift with the Federalist Society without asking any questions of the nominees.

Democrats Richard Blumenthal of Connecticut and Mazie Hirono of Hawaii said scheduling conflicts kept them away from the hearing.

Cory Booker of New Jersey said of his absence “we continue to be one of the voices in the judiciary committee, especially for the civil rights organizations, and doing challenging questions and stepping up.”

Asked about progressive dissatisfaction, Booker said, “we have over 20 of the top civil rights activist groups that we work with. We have not gotten any of that feedback whatsoever.”

John P. Collins, a George Washington University law professor who tracks and researches the nominations process, said Democrats “just don’t get it.”

“Or they don’t appreciate the situation, or how dangerous some of these nominees are, and they don’t recognize what power they have to potentially disrupt it,” he said.

The Questioning

Progressives said they were pleased to see Democrats question Hermandorfer, who is a decade out of law school, about her qualifications for the appellate bench. Democrats also questioned her support for Trump’s order on ending birthright citizenship, her stance on whether the president has the right to suspend habeas corpus, and whether the executive branch must follow court orders.

Lena Zwarensteyn, senior director of the fair courts program at the Leadership Conference on Civil and Human Rights, praised Sen. Amy Klobuchar’s (D-Minn.) questioning of Hermandorfer’s defense of Tennessee’s near total abortion ban, “but there was so much more that I think could have been explored.”

Democrats also didn’t ask questions about past writings or statements—a common tactic used by Republicans during the Biden era.

Divine, as an undergraduate, questioned whether President Barack Obama was “Halfrican American” in a college newspaper column on the prosecution of George Zimmerman for the killing of Trayvon Martin. In another student editorial, Divine wrote that people should be required to take literacy tests in order to vote, a requirement outlawed by the Voting Rights Act of 1965 after it had been used to disenfranchise Black citizens.

AFJ’s Faleschini said he was appalled at “the fact that no Democratic senator took the time to ask about some of those really troubling aspects of this person’s record that should automatically disqualify someone from being a lifetime federal judge.”

Future Prepping

Getting a nominee to “incredulously deny believing in a position that they’ve taken in a prior case” or to trip over a question on basic legal procedure, a common tactic by Sen. John Kennedy (R-La.), is Democrats’ best strategy against Trump’s nominees, Collins said.

Those exchanges with Kennedy have turned into viral social media moments and headlines that ultimately pressured some of Biden’s and Trump’s picks to withdraw their nominations.

Progressive groups say they’re looking for Democrats to fine tune their opposition strategy before Emil Bove’s hearing on his nomination for the Third Circuit. Bove, Trump’s former personal defense lawyer now serving in the Justice Department, is expected to be questioned on his handling of criminal charges against New York Mayor Eric Adams.

“I expect significant scrutiny into the records, not only at the hearings, but also at the markup. And I know that this is going to be something that is ongoing. It’s week after week after week after week,” Zwarensteyn said.