Trump Appellate Court Pick Didn’t Seek Out Delaware Seat (1)

Jennifer Mascott’s consideration for a federal appeals court judgeship in a state where she has few ties began when she expressed interest in serving on any court the White House saw fit.

“The circumstances that led to my nomination included my expression of interest in serving in the federal judiciary or any other governmental position in which the President or the Administration would be interested in having me serve,” Mascott said in answers to a Senate Judiciary disclosure obtained by Bloomberg Law.

Mascott’s responses to the Senate Judiciary Questionnaire are her first description of the events that led to her nomination to a Delaware seat on the US Court of Appeals for the Third Circuit.

President Donald Trump’s selection of Mascott, a law professor working in the White House Counsel’s office, attracted criticism from both of the state’s Democratic senators, who say she has few ties to Delaware.

According to the disclosure, she interviewed with White House lawyers on May 14, and since then she has been in contact with lawyers in the same office she works in and the Justice Department’s Office of Legal Policy. She met with Trump on July 2 regarding her possible nomination.

Delaware Sens. Chris Coons and Lisa Blunt Rochester have been public about their disappointment in the White House and Trump, whom they say passed up candidates with greater ties to the state’s legal system.

Mascott isn’t admitted to practice law in the state of Delaware, according to the Office of the Delaware Supreme Court. Property records show she owns a property near a beach there. The only reference to the state in the 87-page Senate disclosure is where she lists being manager of an limited liability corporation on behalf of her deceased husband’s estate.

The disclosure makes no reference to communications with Delaware’s senators and instead focuses on her interactions with White House lawyers and the president regarding her potential nomination. Though federal appeals courts have jurisdiction over several states, potential nominees typically express their interest in a judgeship to the home-state senators where that judgeship is located.

Circuit nominees no longer require support from their home-state senators to advance, after the Republican-controlled Senate Judiciary Committee eliminated the requirement during Trump’s first term. Republican senators had complained about a lack of consultation about circuit nominees put forward by former President Joe Biden.

Given Mascott’s proximity “to not just the White House generally speaking, but to the president and the people in the White House Counsel’s office who are in charge of these things, it’s no surprise to me that this was worked internally,” said John P. Collins, a George Washington University law professor who researches and tracks judicial nominations.

Circuit Fit

Mascott joined the second Trump administration earlier this year, after she taught administrative and constitutional law at Catholic University of America and George Mason University. At Catholic Law, she founded the Separation of Powers Institute, which focuses on administrative and constitutional law scholarship.

That background would have made her an optimal candidate for the DC Circuit, Collins said. But the only Republican-appointed judge on the court eligible to retire, Karen Henderson, is still serving full time.

Federal judges have been retiring at a historically slow pace so far in Trump’s second term.

Henderson is one of almost two dozen life-tenured, Republican-appointed appellate judges eligible for senior status—a form of partial retirement—who’ve yet to announce plans to step back from active status.

Collins says the White House’s decision to appoint Mascott to the Third Circuit is a strategic one, given the limited pool of vacancies Trump has.

“We’ve got somebody we think is qualified, who we like, who shares our views, who fits the definition of bold and fearless, and we’re not gonna wait around in the hopes that some vacancy might occur in the future,” Collins said of the White House’s calculus, “we’re gonna go ahead and appoint her where we have a vacancy now.”

During Trump’s first term, Mascott served as a deputy assistant attorney general in the Office of Legal Counsel, and as an associate deputy attorney general. She also worked on the confirmation of Justice Amy Coney Barrett, according to her law school bio.

In February, Trump nominated Mascott as general counsel of the Department of Education, which he has since set out to abolish. That nomination hasn’t advanced in the Senate.