Welcome

Circuit Pick Prompts GOP Complaint Over White House Consult (1)

Jan. 12, 2022, 5:29 PMUpdated: Jan. 12, 2022, 9:08 PM

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) suggested creating a rule for White House consultation with a judicial nominee’s home state senators after Tennessee lawmakers complained they weren’t fully consulted on a circuit pick.

“Perhaps we can agree that prospectively after the 2024 presidential election, there will be a rule. We don’t know who’s going to win that at this point, and we might have a standard moving forward from there,” Durbin said at a Wednesday confirmation hearing for Andre Mathis, President Joe Biden’s nominee to the U.S. Court of Appeals for the Sixth Circuit.

Mathis is Biden’s first nominee to a state with two Republican senators, and the tension over his selection provided the first look at what filling vacancies in purple and red states will look like for the Democratic administration and Democratic-led Senate.

Sens. Marsha Blackburn and Bill Hagerty said the White House didn’t meaningfully consult with them on the nomination.

The complaints come after then-majority Republicans during the Trump era elected to move circuit nominations without eliciting home-state Senate support via the “blue slip” process, which is a form members fill out to signify support for a nominee. Democrats, who now control the Senate, continued the practice.

“If we still had the blue slip, you wouldn’t have to have an argument about whether the consultation was sincere or real or meaningful or not. No blue slip. No recourse,"said Sen. Sheldon Whitehouse (D-R.I.), who opposed a Republican decision to not honor home-state senator support.

Sen. Chuck Grassley (R-Iowa) said during the Trump administration he required the White House to document its attempts to reach out to home-state senators to consult with them on a nomination. Sometimes that resulted in agreement and sometimes not “simply because they were too conservative,” he said.

“That is not what is happened in this case. Here, the White House failed to consult with the home-state senators in good faith,” Grassley said. The Tennessee senators tried to find a consensus nominee, he added, and provided a suggested candidate, Camille McMullen, a state appellate judge.

The White House had no comment on Wednesday on the Tennessee complaints, but previously told Bloomberg Law that it had discussed Mathis with the state’s senators. Durbin also said the White House told him before the hearing that it interviewed McMullen for the position.

Speeding Tickets

Mathis is a partner at Butler Snow in Memphis and previously worked at the firm Glankler Brown. He is also a member of the Western District of Tennessee’s Criminal Justice Act Panel and has worked on pro-bono cases for the Tennessee Innocence Project.

At the hearing, Mathis faced questions over three suspensions of his driver’s license, which Blackburn referred to as a “rap sheet.”

In a Jan. 7 letter to Durbin and Grassley that Bloomberg Law obtained, Mathis said he was aware that the FBI background check for his nomination found Tennessee Department of Motor Vehicles records that his driver’s license was suspended three times, each for failing to pay a ticket, and offered explanation for each.

In asking Mathis about those violations at the hearing, Durbin said “if speeding tickets are a rap sheet, I’ve got one too. I never got a speeding ticket for driving five miles over the limit, which apparently is one of your tickets,” Durbin said.

“I highly regret that I’m in this situation,” Mathis said in response to Durbin at the hearing. “I feel like I’ve embarrassed my family. I truly regret that.”

When asked about the tickets, White House spokesman Andrew Bates pointed to Mathis’ unanimous “Well Qualified” rating from the American Bar Association. He also said Mathis would be the first Black man to serve on the Sixth Circuit from Tennessee and received support from people across the political spectrum.

(Adds comments from senators, White House. )

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

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.