That the White House has outsourced judicial selection to interest groups like the Federalist Society or the Heritage Foundation is a widely-held truism, though one of President Donald Trump’s nominees to the 9th U.S. Circuit Court of Appeals shows that conventional wisdom isn’t quite right.
Mark Bennett, who will likely become Trump’s first appointee on the 9th Circuit, is practically unknown to the conservative stalwarts who advise the White House of federal judgeships, and the advocacy groups who galvanize right-wing support for judicial nominees. Though a questionnaire Bennett completed for the Senate Judiciary Committee indicates he joined Hawaii’s chapter of the Federalist Society in 2016, he is a professional and personal mystery in Washington’s conservative legal circles.
A source at the Heritage Foundation active in judicial confirmations told The Daily Caller News Foundation that Bennett has not been a presence in the conservative legal firmament, even during his tenure as state attorney general from 2003 to 2010.
The source added that Bennett’s nomination is probably the best the administration can hope for from a deeply liberal state — he was tapped for Hawaii’s seat on the 9th Circuit, and enjoys the support of both that state’s senators, Democratic Sens. Brian Schatz and Mazie Hirono.
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The Judicial Crisis Network (JCN), a conservative advocacy group that messages aggressively around judicial selection, declined to comment about Bennett’s nomination. Since Trump assumed office, JCN has spent millions promoting the confirmation of Justice Neil Gorsuch and numerous lower court nominees, while lavishing praise on Senate Republicans for making judges a top priority.
Americans for Prosperity, the vehicle through which the Koch network organizes and messages on judgeships, expressed its continued support for the president’s confirmation efforts, but did not take a position on Bennett’s nomination in response to inquiries from TheDCNF.
GOP Sen. Ted Cruz of Texas had skeptical questions for Bennett at his confirmation hearing Wednesday. The senator grilled Bennett on several amicus (or “friend of the court”) briefs he supported at the U.S. Supreme Court bucking conservative legal orthodoxy on the First and Second Amendments during his tenure as Hawaii Attorney General.
The senator’s office would not confirm whether he intends to support the nomination.
Hirono praised Bennett’s nomination as a model for bipartisan cooperation with the White House, touting the influence of her office in the selection process.
“I’ve been very critical about the lengths to which this administration is going to pack our federal courts with ideologically driven nominees,” she said during Wednesday’s hearing. “Unlike other circumstances over the last year where the administration failed to consult home state senators during the selection process, I worked with White House Counsel Don McGahn to come to an agreement on our slate of judicial nominees.”
At the same hearing, Schatz noted Bennett was confirmed as attorney general by a state legislature in which Democrats held a significant majority.
Confirming qualified conservative nominees to the 9th Circuit poses a daunting challenge for the administration. Senators are generally given deference over judicial vacancies in their state, and may use a procedural mechanism called the “blue slip” to veto candidates they do not support. The Senate Judiciary Committee does not hold hearings for a particular nominee until the senators from the state where the vacancy occurs submit their blue slip, though GOP Sen. Chuck Grassley, who currently chairs the panel, has occasionally set aside this prerogative in recent months.
Since many states within the 9th Circuit, including California, Hawaii, New Mexico, Oregon, and Washington, have two Democratic senators, liberal lawmakers could stall progress on appointments to that court for months, absent escalatory action from Grassley and other committee Republicans.
Liberal political dominance throughout the 9th Circuit is itself a problem for the White House, as it makes finding well-credentialed conservatives of sufficient intellectual heft a challenge. With west coast political institutions, law schools, and bar associations firmly aligned with progressive causes, the administration has few scouts or sources to recommend attractive nominees.
The Senate Judiciary Committee will vote on Bennett’s nomination in the coming weeks.
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