To listen to Senate Democrats, President Trump’s judicial nominees are outlandishly unqualified. But to listen to Senate Republicans only a few years ago, so were President Obama’s. For too long, the judicial confirmation process has been more akin to a marathon baseball game: One side pitches nominees and the other team continuously fouls them away.
Consider President Trump’s nomination of Maureen Ohlhausen to serve as a judge on the U.S. Court of Federal Claims. Last week, the Senate Judiciary Committee approved Ohlhausen’s nomination along partisan lines, sending it to the Senate floor. After the committee vote, Sen. Dick Durbin (D-Ill.) tweeted that he opposed Ohlahusen’s nomination because she failed the “Senator John Kennedy test.” He went on to explain that she lacked the “practical experience” to be a federal claims judge.
With his mention of the “Kennedy test,” Sen. Durbin is no doubt referencing a hearing from last year in which Sen. John Kennedy (R-La.) blitzed potential U.S. District Court nominee Matthew Petersen with a series of questions that demonstrated his inexperience and unfamiliarity with many of the issues he would encounter as a district court judge. After the disastrous hearing, Petersen withdrew his nomination.
Durbin argues that Ohlhausen is similarly unqualified. If confirmed, however, Ohlhausen would not be a judge in a federal district court, overseeing criminal cases or ruling on controversial constitutional law issues. Instead, she would be a judge on the U.S. Court of Federal Claims, a court of limited jurisdiction with a unique history.
The first iteration of the claims court was established by Congress in 1855 to provide citizens with a forum to adjudicate money claims against the federal government. Prior to the court’s establishment, citizens were forced to individually petition Congress for monetary compensation they were owed by the government—an inefficient and arbitrary system that eventually became impossible for Congress to administer adequately. Today, the court hears a limited range of cases relating to matters like federal contract disputes, military pay, or compensation when the federal government invokes eminent domain.
For this particular court, Ohlhausen is well-qualified to be a judge. In fact, she used to work there. Early in her legal career, she served as a law clerk for the court, drafting legal opinions and helping to manage cases. She then served as a law clerk and staff attorney for the U.S. Court of Appeals for the D.C. Circuit, the most influential court in the country (second only to the U.S. Supreme Court). Next, she served as an attorney for the Federal Trade Commission (FTC) and then became a partner at a local Washington law firm. From there, President Obama nominated her to serve as an FTC commissioner. Until recently, she served as FTC Chair.
Durbin’s chief complaint against Ohlhausen appears to be that she has no experience as a trial attorney. Such a gripe has little merit given the nature of the Court of Federal Claims. Most of its day-to-day practice is motions-based and thus relies on legal briefs, administrative agency records, and oral arguments—often conducted via telephone—rather than holding drawn-out trials. While trials can occur, they are much less common than in traditional federal district courts, and the court’s docket even includes certain appellate responsibilities in cases involving vaccine claims—all matters that Ohlhausen has sufficient experience to handle.
A cynic may believe the real reason for Durbin’s vote against Ohlhausen was based more on politics than a genuine evaluation of her credentials. After all, Durbin voted to confirm Judge Susan Hickey for U.S. District Judge for the Western District of Arkansas in 2011, despite her very limited courtroom experience (she had tried no cases and only presided over two minor criminal bench trials as a state judge).
This partisan view of the judicial confirmation process, however, does not manifest in Durbin or the Democrats alone. During Justice Elena Kagan’s confirmation hearings, for example, then-Sen. Jeff Sessions (R-Ala.) remarked that Kagan’s experience was too “thin” for a Supreme Court justice, citing her lack of experience in the courtroom and as a judge. Ironically, it was Durbin who argued it was wrong to “hold it against her that she ha[d]n’t spent a lifetime as a litigator.” Of course, Justice Kagan was well qualified to be a Supreme Court justice. Among her many legal accolades, she had served as the DOJ’s solicitor general, a role often referred to as the “10th justice” for its heavy involvement in Supreme Court cases.
In voting for Kagan, then-Sen. Judd Gregg (R-N.H.) noted that, although he disagreed with Kagan’s “political philosophies,” he “believe[d] that the confirmation process should be based on qualifications, not ideological litmus tests or political affiliation.” This used to be the majority view. Indeed, in 1986, Justice Scalia was confirmed 98 – 0 by the Senate. In 1993, Justice Ginsburg was confirmed 96 – 3. In recent years, however, Supreme Court confirmations have become far more partisan. Kagan was confirmed 63 – 37. And despite earning praise from many Democrats, including Neal Katyal, Justice Gorsuch received only three votes from Senate Democrats.
The question presented in the so-called Kennedy test is simple: Is a judicial nominee qualified to do the job? It is a simple, straightforward test and the Senate certainly should use it. That said, if the test is applied in good faith, nominees like Ohlhausen should be easily confirmed. If not, however, it will regrettably join the already overfilled bin of partisan jargon.
