Trump’s Third Circuit Delaware Nominee Has Few Ties to the State

President Donald Trump’s pick for a federal appeals court seat in Delaware has a sterling resume but few ties to the state or the circuit court overall.

Trump announced Wednesday his plans to nominate Jennifer Mascott, a law professor working in his White House Counsel’s office, to the US Court of Appeals for the Third Circuit.

But the White House lawyer and former clerk to Justice Clarence Thomas 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.

Delaware’s Democratic senators say they’re disappointed that the White House would pass up candidates with more robust ties to the state’s legal system.

“I’ve made it clear to White House counsel that nominating someone who’s not a Delawarean and didn’t take the Delaware bar—is not part of the Delaware legal community—when we had identified several compelling candidates who they had interviewed, is very disappointing,” said Sen. Chris Coons (D-Del.).

Coons said there was “constructive consultation” on candidates: senators suggested a list of Delaware-based lawyers and judges serving in the state to be interviewed, and the White House in turn sent over names for the senators to interview and consider.

Mascott wasn’t part of that process, Coons said, and neither senator met or spoke with Mascott before Trump’s announcement. But they were given advance notice that she’d been chosen for the seat, the senators said.

On whether the senators plan to pursue an interview with Mascott, Sen. Lisa Blunt Rochester (D-Del.) said “We are going to try to do that anyway.”

The White House didn’t immediately respond to a request for comment.

Robert Luther III, a former White House lawyer in Trump’s first term who worked on judicial nominations, said over email: “My understanding is that the White House approached Senators Coons and Blunt Rochester about her, but that they refused to meet with her, so there’s been more than adequate consultation by the White House.”

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.

If confirmed, Mascott would replace Judge Kent Jordan, an appointee of George W. Bush, who retired from the Third Circuit in January. He previously served as a federal trial court judge in Delaware.

Circuit Ties

Mascott’s limited connections to the circuit have raised questions about whether regional considerations will remain a priority in Trump’s vetting of nominees to the courts that sit just below the Supreme Court.

Though circuit courts have jurisdiction over multiple states, presidents have typically sought judges with robust legal experience practicing before that court or within the region the judgeship is based.

Some conservatives had urged Trump to move the court’s open Delaware seat to another state in the circuit, such as Pennsylvania, citing a smaller pool of conservative talent in Delaware.

“Frankly, the Delaware Senators are lucky that Jenn plans to set up chambers in Delaware at all when the White House could have moved the seat to Pennsylvania where the President has more supporters or to New Jersey which is underrepresented on the Third Circuit,” said Luther, who’s now a George Mason law professor.

In addition to the Delaware property, Mascott “has spent a lot of time in the state with family,” Luther said.

John P. Collins, a George Washington University law professor who researches and tracks judicial nominations, said in an email that it’s clear the president “does not care about informal rules about regional representation” as he seeks to fill the limited pool of appeals court vacancies he has.

Few circuit vacancies have opened for Trump to fill so far in his second term. That’s after he appointed 54 judges to the appellate bench in his first presidency in his bid to install young conservatives the bench.

“Who knows how many more circuit judges he’ll get to appoint, so he is going to maximize his partisan advantage with every pick, and his pick of Mascott is consistent with that,” Collins said.

Mascott Background

Mascott taught administrative and constitutional law at Catholic University of America and George Mason University before joining the second Trump administration earlier this year.

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

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.

She graduated from George Washington University’s law school with its highest cumulative grade point average on record. In addition to clerking for Thomas, Mascott also clerked for then-Judge Brett Kavanaugh on the D.C. Circuit.