Trump Judicial Pick Maintains Public Engagement During Vetting

President Donald Trump’s pick for a federal appeals judgeship in Delaware is staying active in the public eye, an unusual move for judicial nominees who typically assume a lower profile during nomination and confirmation vetting.

Jennifer Mascott, a law professor working in his White House Counsel’s office who Trump tapped for the US Court of Appeals for the Third Circuit, has been a prolific legal commentator in national media and maintained an active social media presence throughout her scholarly career.

But instead of retreating from or simply quieting that presence amid nomination vetting and after her confirmation hearing, she’s been engaged on her social media accounts and was on stage most recently with Supreme Court Justice Clarence Thomas at a law school event.

Mascott’s consideration for the Third Circuit began when she expressed interest in serving on any court the White House saw fit. She interviewed with White House lawyers on May 14, and had been in contact with attorneys in the same office she works in and the Justice Department’s Office of Legal Policy since, according to a Mascott disclosure to the Senate. She met with Trump on July 2 regarding her possible nomination, and the president announced she’d been chosen on July 16.

Mascott’s social media posts amid the meetings with White House and Justice Department lawyers included a repost of a June 27 X post from fellow White House lawyer May Mailman about Justice Amy Coney Barrett’s majority opinion undercutting nationwide injunctions that took aim at Justice Ketanji Brown Jackson’s dissent.

“Justice Barrett goes straight after Justice Jackson’s inability to do law. Jackson wants to tell the entire executive branch what to do and refuses to comply with Constitutional limitations. Insanely dangerous, and Barrett is right to call it out,” Mailman said.

Another repost of Mascott in that time frame is of another Mailman post about the high court’s decision in United States v. Skrmetti, which upheld a Tennessee law that outlaws certain medical treatments for transgender children: “While a win was inevitable in Skrmetti, seeing the Court officially call girls “he” is tragic to the English language, truth, and well-being. Barrett writing that no, “trans” identity is not immutable or discrete like “sex” gives me hope.”

Following her nomination, Mascott also thanked prominent voices in the conservative legal movement who’d congratulated her on the X platform.

On Thursday, she moderated a discussion with Thomas, whom she once clerked for. The event was at Catholic University of America’s law school in Washington where she previously taught and established the Separation of Powers Institute.

The conversation steered clear of any contemporary or present-day matters. Mascott mainly focused on the conservative justice’s upbringing and judicial philosophy, as well as the formation of the court compared to when he first joined the bench. “Do you agree that the court is more originalist?”

She also asked about originalism and stare decisis and whether the two are in tension. She similarly asked whether writing about text and tradition is consistent with originalism.

The White House in a statement didn’t address Mascott’s public engagement but touted her qualifications for the bench.

“Jennifer Mascott is exceptionally qualified to serve on the Third Circuit Court of Appeals. She has a deep respect for and understanding of our Constitution and will serve our country with distinction,” White House spokeswoman Abigail Jackson said.

Mascott didn’t respond to a request for comment.

Nomination Norms

Federal judicial nominees typically refrain from making public statements or high profile appearances as to steer clear of engaging in pre-judicial issues that could taint their prospects for nomination and confirmation.

“The guidance that I got was, this is a time to be particularly attentive to any public comments that you make, because you’re no longer just a lawyer practicing or a lower court judge doing their decisions,” said Paul Grimm, a former Maryland federal judge and director of the Bolch Judicial Institute at Duke Law School.

“You’re now in the public eye, and everything that you say or do could be the subject of questions being asked of you at the confirmation hearing,” Grimm said.

Nominees have had their social media posts come back to haunt them under recent administrations. Senate Judiciary Republicans called Dale Ho, Joe Biden’s nominee to Manhattan’s federal district court, an “extreme partisan” and an “angry man” for his social media posts.

Ho, who’s served on the bench since 2023, repeatedly apologized during his confirmation process for having “engaged in overheated rhetoric on social media.”

Mascott’s social media wasn’t scrutinized at her Sept. 3 confirmation hearing, and subsequent written questions from the committee only reference a 2021 repost from a commentator about Chief Justice John Roberts’ comparison of the country’s abortion laws to those of North Korea and China during oral argument in Dobbs v. Jackson Women’s Health Organization.

Mascott’s actions could be a sign of poor judgment, said Carl Tobias, a University of Richmond law professor. But that’s unlikely for the current White House lawyer in close contact with the office coaching her on the nominations process.

The longtime norms around judicial nominations have slowly eroded under recent administrations as the political polarization around the process has increased, as reflected by the close margins nominees are confirmed.

Mascott’s nomination to a court in a state she has few ties to, in defiance of Delaware’s home-state senators who oppose her selection, is also reflective of that, Tobias said. Republicans under Trump’s first term eliminated the requirement for such home-state senator sign off for circuit picks to advance.

As for how the Trump DOJ and White House officials are coaching nominees, a 53-seat Senate GOP majority amid the current political climate could mean “the guidance that they’re giving is less cautious.”

“It may be that the mindset is, it doesn’t really matter how careful you are, no one on the other side is going to vote for you, and so it’s just a matter of us finding out whether we have the votes to put you forward,” Grimm said.