Bloomberg Law
March 4, 2020, 6:06 PMUpdated: March 4, 2020, 9:34 PM

Democrats, Trump Dealing on Some Judicial Picks (1)

Madison Alder
Madison Alder

Democratic senators from Nevada and Virginia testified at a hearing in support of President Donald Trump’s judicial nominees for their states, a new signal that the bitterly divided parties are cooperating more to name replacements in some shorthanded districts.

The nomination of Jennifer P. Togliatti, a senior state court judge, to the District of Nevada shows “what is possible when the White House engages in meaningful collaboration with home-state senators on selecting judicial nominees,” Sen. Jacky Rosen, D-Nev., told the Senate Judiciary Committee on Wednesday.

She spoke during the confirmation hearings for three nominees questioned closely by Republicans on issues like the death penalty and partisan leanings. At least one was singled out for what a Republican lawmaker called the “alarming” treatment in past writings of “pro-life” views.

There has been little indication publicly in the bitterly partisan Senate that Democrats and the Trump White House have worked effectively together consistently on judicial nominations in blue states, or those with two Democratic senators. The Republican-led Senate also has been slow to fill district, or trial court, seats in blue states when they do come up during Trump’s presidency, moving aggressively to confirm vacancies in Republican, or red states that are friendly to the president.

But judgeships in blue states now make up the majority of current vacancies, and filling judicial appointments remains a signature priority for the administration and the Republican-led Senate. A number of long outstanding blue-state vacancies are also deemed emergencies due to high case loads.

“We made deals with these people,” Judiciary Chairman Lindsey Graham, R-S.C., told Bloomberg Law, referencing talks with Democratic senators about certain nominees. “Unless there’s a damn good reason, I’m going to honor those deals.”

Rosen highlighted two other vacancies in the Nevada District, one of which has been open for over three years. Togliatti said judges in the District of Nevada advised her that she’ll have to be prepared to step up immediately and start hearing cases due to the high volume of work in the district.

Sen. Catherine Cortez Masto, the other Nevada Democrat who voiced her support for Togliatti, said the nominee stood out for her experience and her reputation as a fair judge.

Thomas T. Cullen, a federal prosecutor nominated to the U.S. District Court for the Western District of Virginia, won the support of his Democratic home-state Sens. Mark Warner and Tim Kaine. They praised his public service as a federal prosecutor.

“He hasn’t been afraid to stand up against people who are powerful on behalf of those who weren’t very powerful,” Kaine said at the hearing. “So he’s the kind of U.S. attorney whose track record would suggest that he’s going to be true to that equal justice under law expectation that we have of anybody who sits on the bench.”

The committee also considered the nomination of John Peter Cronan, a Justice Department attorney in the criminal division, who would fill a seat on the seat on the Southern District of New York, which includes Manhattan..

All three of the nominees at the hearing received unanimous “Well Qualified” ratings from the American Bar Association. Two nominees, Cronan and Cullen, are members of the Federalist Society, where Trump has found many of his judicial picks. Togliatti and Cronan, were recently renominated after their selections lapsed at the end of the year due to Senate inaction.

GOP Questions

While a couple of the nominees had support of their senators, Republicans on the committee quizzed them on their records and statements. In the past, opposition from just a couple of Republican members on the committee was enough to sink a nomination.

Sen. Ted Cruz, R-Texas, questioned Togliatti on her handling of a death penalty case in which the Nevada Supreme Court reversed her decision that the state couldn’t use a paralytic drug during an execution and delayed it from taking place. In a unanimous decision, the Nevada Supreme Court said she didn’t have the authority to make that decision.

“In the Ninth Circuit, there is a long and unfortunate practice of some judges interposing themselves between carrying out capital punishment,” Cruz said, asking Togliatti if she’d be able to follow the law when it comes to the death penalty.

Togliatti said she would “fully and faithfully follow the law as it applies related to all of those issues if confirmed.”

Sen. John Kennedy, R-La., zeroed in on a statement Cullen, of Virginia, made during the hearing about extremist acts often coming from those on the right of the political spectrum.

“Respectfully, I think my view on that issue is informed by my experience in the Western District of Virginia, in Charlottesville specifically,” Cullen said in response to Kennedy’s questions.

As a U.S. attorney, Cullen was part of the successful prosecution a man participating in the Unite the Right rally in Charlottesville who drove his car into counterprotesters, killing one and injuring dozens.

“There’s no question that of all the cases I’ve been fortunate enough to work on in my career, that this was the most rewarding, and for a lot of reasons, the most important,” Cullen said during the hearing.

Missouri Sen. Josh Hawley, a Republican, for example, asked Cronan about his views on free speech, referencing a piece the nominee wrote while in law school on the First Amendment’s application to an anti-abortion website.

That site, called the “Nuremburg Files,” listed the personal information of abortion doctors.

Hawley a said Cronan’s past writings were “frankly a little bit alarming on this issue, particularly as it relates to pro-lifers and the pro-life movement,” and asked Cronan to explain.

Cronan said he ultimately took the position as the website was protected under the First Amendment in the paper, and said he would apply the Supreme Court’s instructions on free speech.

(Updates throughout with hearing testimony.)

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; John Crawley at