Judicial confirmations don’t happen in a vacuum. Generally speaking it’s an area of politics and policy where learning from the past is helpful. That’s why people should subscribe to Ed Whelan’s Confirmation Tales Substack. Discuss the issue with an expert like Robert Luther III, and he’ll cite you chapter and verse of previous fights and decisions because they can inform future fights and decisions. The Butler nomination implicates two stories that are worth taking into account.
The first involves Joel Flaum, late of the Seventh Circuit. Judge Flaum was the senior-most judge on that court in the first Trump administration and its leading establishment-conservative figure. In his 80s, it was probably time for him to hang up his spurs (or, given that he was a Republican in Chicago, his truncheon). We in the judge-making business were made aware that he would happily step down for his former clerk, Chicago district judge Bob Dow.
There was much to be said for such a deal. Flaum, again, had far fewer years in front of him than behind him and so preserving the seat made a lot of sense. He was a conservative, yes, and more often than not voted with Diane Sykes; his dissent in the Notre Dame contraceptive mandate case was strong. But he wasn’t a 100-percenter. Judge Dow, for his part, was the best Republican district judge in Chicago — along with Amy St. Eve. He wasn’t a movement guy having come from defense-side biglaw, but generally speaking he was on the team.
The deal didn’t happen. The White House suspected Dow had liberal tendencies because of his late-Bush confirmation process. Furthermore he had incurred the enmity of the religious-liberty groups with a ruling of his. And, anyway, there were other options the White House preferred. (Why pass up on a Thomas clerk?)
As a result, Judge Flaum stayed on the bench until forced to go senior due to health reasons . . . just after the 2020 elections. His seat went to Candace Jackson-Akiwumi, perhaps the most radical of the Biden circuit judges and the archetype for the federal-defender judges with whom Biden would inflict upon the bench. We should have taken the deal.
The second story is geographically relevant, that of Judge Halil Suleyman “Sul” Ozerden. When Judge Grady Jolly went senior on the Fifth Circuit, he was initially slated to be replaced by Judge Ozerden of the Southern District of Mississippi. When I heard this, I looked him up, and the only story on Judge Ozerden was a newspaper piece about how you don’t want to commit crimes in southern Mississippi because Judges Ozerden and Dan Jordan will send you to prison forever. Not bad!
Well, others disagreed. Judge Ozerden ended up getting the nod because he had the strong support of Senator Wicker and then-White House chief of staff Mick Mulvaney. The Texans weren’t having it, believing the seat to be rightfully theirs. As with Judge Dow, there was also a religious liberty problem: Judge Ozerden had ruled against a Catholic litigant in a very early HHS mandate case. Judge Ozerden being a Turk — albeit also an Episcopalian — didn’t help matters there.
By the time Ozerden’s nomination was actually moving, I was with Chairman Lindsey Graham, who immediately embraced Judge Ozerden’s cause. From Graham’s perspective, this guy was perfect: A decorated Naval aviator, he was an excellent courtroom attorney, a no-nonsense judge, and an active supporter of Republican politicians prior to joining the bench. That there was a Texas-based insurrection brewing down-dais on the nomination further convinced Graham that he was in the right, and he decided we should do whatever we could to get Judge Ozerden over the finish line.
Expecting a couple of no votes from Republicans, Graham secured a yes vote from Senator Leahy, as a courtesy to the chairman, and Wicker got one from Senator Whitehouse, as a personal courtesy. For a time we had the support of Senator Durbin, too.
That’s when things went sideways. You see, it wasn’t just the Texans who had a problem with Judge Ozerden. The liberals came out of the woodwork as well. As noted above, he’s a longball hitter; if you deal drugs in his district, you’ll be stamping license plates until arthritic. If you’re alleging race discrimination at work, he’s not the judge you want. But he wasn’t the only judges in the southern district, also the home base of Judge Carlton Reeves. Currently the Biden-appointed chair of the Sentencing Commission, Judge Reeves is the proto-Biden judge, an outspoken, far-left hero of what passes today for the civil rights movement.
The left saw the opportunity in front of them. We were approaching an election year and the Republican nominee in Mississippi was in trouble. If they were to stop Judge Ozerden and keep the seat open, then perhaps the next president could elevate Judge Reeves. At least this is what we assumed was happening when the NAACP sent out a letter taking a flamethrower to Judge Ozerden wherein we lost Durbin. We argued that they’d like whoever’s coming next a whole lot less, but Durbin couldn’t take a stand against the NAACP — it would be like asking a Republican to oppose the NRA.
While we were losing Democrats, the Texan insurrection expanded to Missouri and rolled up our right flank. Without Durbin we couldn’t sufficiently reinforce Leahy and Whitehouse and the votes simply weren’t there. Graham was incandescently mad, but eventually he and Leader McConnell concluded the nomination couldn’t be salvaged and told the White House to send them another name. The next year, we confirmed Cory Wilson, who’s a stalwart.
All’s well that ends well, right? We got Judge Wilson so the Texans were righteous.
There’s a natural desire to confuse luck for skill. The Texans bet it all on drawing an inside straight, and they did. Again, the NAACP was on the other side of that bet and the stakes were high.
Not long after Judge Ozerden’s nomination was returned to the president, we were hit with Covid-19 and everything shut down. Judge Wilson’s nomination was announced at the end of March, when we were in the throes of it, and only nominated in May, when the Senate reconvened.
Judge Wilson was a former state legislator, so he had many statements and writings that were caustically critical of figures like Barack Obama. Recall that we had recently lost a North Carolina nominee, Tom Farr, due to a GOP revolt based on his supposed racial insensitivity. Before him we had lost Ryan Bounds on similarly spurious grounds. Republican nominees in the South — in states like Georgia, Alabama, and South Carolina — tend to represent a Sunbelt Republican sensibility more often than not. Any Mississippi brawler would need to get past Senators Tim Scott, Richard Shelby, Lindsey Graham, Marco Rubio, and Johnny Isakson — none of whom were naturally disposed toward “bubba” picks, and the judicial left knew it. Judge Wilson, a bespectacled member of the Yale Law Journal, was well positioned to parry those attacks, but the threat was real.
As was the threat of the pandemic. Congress passed the CARES Act and ran for the hills. Judge Wilson got lucky in two regards: First, Mitch McConnell was the majority leader and second, McConnell’s protégé, Justin Walker, was a pending nominee for the D.C. Circuit. As a result the Senate was one of the first institutions to get back to work and it did so to process judges. When we came back it was literally me and a bunch of Senators in the Hart Building — I’d say hi to Senator Tester as he walked the halls bringing cold cuts to his office as about the only thing available to eat. Because McConnell was monomyopically focused on confirming judges, we got to work and got Judge Wilson his hearing on May 20.
The lurking NAACP problem is not something we can only see with hindsight. I argued vigorously at the time that Wilson should go before Walker because we needed to get out ahead of unfair attacks. Wilson — and Reeves — was the trophy for the left, not Walker. I lost — of course McConnell insisted that Walker go first—but we still managed to get Wilson a hearing a week or two before the country erupted into race riots.
It’s easy to forget the moral panic of the time, but Republicans were not eager to be on the wrong side of the “racial reckoning.” Police reform was gaining steam, administration officials were resigning over perceived racial slights, and doing anything at all was hard in an institution where the median age is somewhere north of Methuselah and with a virus targeting old people raging. A Wilson hearing in the throes of that very easily could have gone sideways and we only missed it by a couple weeks. But for McConnell’s tenacity on judges, the NAACP almost got their way and Carlton Reeves almost got his promotion.
In other words, the Texas bet on the inside straight during Ozerden only worked because they had McConnell dealing from the bottom of the deck. When thinking about Butler consider that McConnell’s no longer the dealer.