Adam Schiff (D., Calif.), the Senate Democrat best known for his clownish conduct during the Trump 45 Russia hoax, strongly criticized the District of Montana nominee, Katie Smithgall Lane, in her confirmation hearing for not having enough trial experience. Chris Coons, the Senate Democrat best known for his dogged efforts to ruin the life of his law school friend, Brett Kavanaugh, did the same.
The arguments fell flat because Lane did a great job refusing to accept their framing and instead explained the experience she does have. Furthermore, as Mike Lee, the Supreme Court clerk, noted in a 2019 hearing, in modern trial practice the ability to handle dispositive motions effectively may be more important than trial experience. There’s little doubt that Lane has the chops for that important part of the job.
Is Lane young? Sure. But she’s perfectly within the realm of nominees who were not just credible but excellent. For example, consider Judge Justin Walker, the nominee Lee was defending in 2019. Walker began his judicial career as a judge on the Western District of Kentucky, a position he assumed without ever “first-chairing” a trial. But he was selected for his sound judgment and exceptional intellect as confirmed by everyone who interacted with him from Mitch McConnell to Brett Kavanaugh to Anthony Kennedy to Elena Kagan. He is now one of the most influential judges in the country, frequently having his D.C. Circuit dissents vindicated by the Supreme Court.
Perry Mason trial work is simply not a necessary prerequisite for good district judges. Take Judge Lee Rudofsky of Arkansas, who was on Walker’s Judiciary Committee panel. His committee questionnaire says he was involved “in one full trial.” It was the Deepwater Horizon trial. I know it well because Rudofsky and I were on the same trial team. It was — at the time — arguably the biggest trial in American history, so of course he wasn’t first chair for the thing. But he got excellent experience on nearly all facets of a highly complex trial — and I got to see his sound judgment up close for months on end.
Justice Amy Barrett never “first chaired” a trial. Best I can tell Sam Alito only handled appeals. Elena Kagan famously never stood up in court once until she was solicitor general of the United States, after which she was promoted to the Supreme Court. Surely all were qualified for their courts.
On the other hand there are plenty of Democratic nominees with ample “experience” who do not inspire nearly as much confidence as Lane. Take, for example, Judge Kato Crews in Colorado. Crews was a sitting magistrate judge when nominated and, when asked by John Kennedy “how you analyze a Brady motion,” he responded that in his four and a half years he hadn’t had the opportunity to analyze a Brady motion. When asked if he knew what a Brady motion is, he replied that he did not. Kennedy continued, asking if Krews had heard of the case Brady v. Maryland, to which Krews responded that he thought it had something to do with the Second Amendment. Of course it was nothing of the sort; Brady involved the obligation of prosecutors to turn over favorable material evidence to defendants in criminal matters. An honest mistake? Well not when a recently enacted federal law required all magistrates — like Crews — to provide oral and written warnings to prosecutors of their Brady obligations. The magistrate judge couldn’t even answer competently about his own statutorily required job. Democrats, of course, confirmed him to the district court.
Or take Judge Charnelle Bjelkengren, a failed nominee out of Washington. She had an extensive record of litigation experience and had most recently served as a superior court judge. She also didn’t know what was contained in Article II of the U.S. Constitution.
There’s Judge Nancy Maldonado, now on the Seventh Circuit and before that nominated to the federal trial court in Chicago. She was sole or lead counsel in two bench trials and second-chaired a jury trial to verdict. She also, upon assuming the bench, “distinguished herself with sheer incompetence” in the words of Mitch McConnell. McConnell explained, “It turns out, Judge Maldonado has by far the largest number of motions pending for more than six months among the judges of the Seventh Circuit, with 125. She would need to rule on one of these motions every workday for the next six months just to clear her . . . backlog.” This came up in the context of her promotion to the Seventh Circuit, and she was asked about her backlog before the Judiciary Committee. McConnell explained that “Judge Maldonado blames her record on, ‘complexity of the case,’ ‘voluminous transcripts/briefs to be read,’ and ‘heavy civil and criminal caseload.’” McConnell went on, “I wish I were making this up: When our colleagues asked Judge Maldonado about her case backlog in written questions, she blamed her clerks! That’s probably cold comfort to prisoners seeking relief for inhumane treatment or litigants paying months of legal fees awaiting her decisions.” Almost every Democrat who will complain about Lane supported Maldonado — both times.
What these examples show is that trial experience neither ensures fitness for the district court, nor does its absence ensure unfitness. You have to call them as you see them.
The examples also show that the same Democrats who will howl about Lane’s youth were perfectly willing to support and promote manifestly unqualified nominees if their politics were liberal enough. Keep that in mind as they whine about Lane.