Cashing in on justice

Three Senate Judiciary members outpace colleagues in contributions from judicial nominees

Posted March 3, 2020 at 5:00am

Before they put on their robes, dozens of federal judges appointed during the Trump and Obama administrations made significant campaign contributions to Senate Judiciary Committee members and their home-state senators — the very people who could make or break their nominations.

And three Republican senators — Ted Cruz and John Cornyn of Texas and Lindsey Graham of South Carolina — got more money than the rest of the Judiciary Committee combined. Virtually all of those contributions came from judicial nominees they ultimately backed.

Home-state senators who haven’t served on the panel also wield considerable influence on who becomes a federal judge. They’ve received significant contributions from donors who ended up on the bench. A Democrat — Bob Casey of Pennsylvania — tops that list.

A CQ Roll Call investigation documented thousands of individual contributions to lawmakers by President Donald Trump and Barack Obama’s judicial appointees in the years leading up to their nominations. Several, both Democrats and Republicans, were major political players before their lifetime appointments. And two Obama nominees appeared to make contributions after they were confirmed despite ethical canons that prohibit such gifts by sitting judges.

Republicans vastly outraised their Democratic colleagues on the Senate Judiciary Committee. Of the six current members who got more than $10,000 from future judges, five were Republicans.

The investigation also found that judges appointed by Trump were at least twice as likely to have contributed to a Judiciary Committee member as judges appointed by Obama. 

The analysis looked at 330 judges nominated during all eight years of the Obama administration and 149 judges nominated during the first two and a half years of the Trump administration.

In all, CQ Roll Call found that about three out of every five of those judges, who were nominated from January 2009 through July 2019, made political contributions.

“There are some honest questions to be asked about huge political donors who wind up on the bench,” said Ciara Torres-Spelliscy, an expert in campaign finance law at Stetson University in Florida. “Did they get there through how we hope they get there, which is merit selection? Or is this just another gravy train?”

Judicial appointments have become a new metric for productivity in Congress. While it can be an ordeal to get substantive legislation through both chambers, Republicans control the Senate and can ram through controversial nominees who are unanimously opposed by Democrats. Federal judges, appointed for life, have immense power to influence the most important issues of the day — reproductive rights, environmental regulation, enforcement of criminal laws, immigration policy and workplace discrimination, to name just a few.

Can campaign contributions really taint the selection process for federal judges — or create a perception that the process isn’t fair?

Cornyn once thought so. He cried foul in June 2010, when Obama nominated John J. McConnell Jr. for a spot on the district court for Rhode Island. McConnell made more than $530,000 in campaign contributions before his confirmation, virtually all to Democratic causes. 

“This gentleman is one of the largest fundraisers to the Democratic cause,” Cornyn told Politico at the time. “I think there well could be the appearance [of] a conflict of interest there.”

Cruz and Cornyn turned down requests to be interviewed and did not respond on the record to emails with detailed lists of questions.

Passing the test

The contributions that federal judges made in the years before they were nominated are not a huge windfall for politicians at the national level. Senate races are multimillion-dollar campaigns and Cornyn, for example, raised $2.75 million just in the fourth quarter of 2019 for his reelection bid. 

But these contributions do serve as a litmus test for political and ideological loyalty. And that comes at a time when lawmakers push hard to confirm judges they see as sympathetic to their agenda.

Both Trump and Senate Majority Leader Mitch McConnell have made filling the courts a cornerstone of their legacies.

“Senator Graham made it clear when he became Judiciary Committee chairman that his priority was the confirmation of ‘Judges. Judges. And more judges,’” Graham spokesman Kevin Bishop said in an email. “He’s been making good on that pledge.”

The power brokers

Cruz, Cornyn and Graham, who has been Judiciary chairman since January 2019, all wield considerable power on the committee. The two Texas senators also hail from a state with one of the highest numbers of federal judgeships.

Cruz and Cornyn also top the list of Judiciary Committee members, past and present, who have received campaign contributions from Trump and Obama nominees who became judges.

Cruz got about $88,000 from future Trump and Obama judges. Cornyn got at least $44,000. And Graham got at least $33,000. Their combined total: more than $160,000.

The other 19 Senate Judiciary members combined got about $65,000 from people who were confirmed while they were on the committee.

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Cruz and Graham still outpace their Judiciary colleagues even when contributions to their failed presidential campaigns are excluded. Presidents, of course, have great influence on the process — they ultimately pick the nominees. 

Cornyn backed all 12 of the nominees who had contributed to his campaigns and became judges. Cruz backed at least 19 of the 22, and Graham backed four of the five who donated to him.

Of the three senators, only Graham voted against a nominee who had given him a campaign contribution: Judge Gerald A. McHugh Jr. of the Eastern District of Pennsylvania, a 2014 Obama nominee who gave Graham $250 seven years earlier.

Among Democrats on the committee, Sen. Sheldon Whitehouse of Rhode Island raised the most from a judicial nominee — nearly $12,000, all from John J. McConnell Jr., who is now chief judge for the District of Rhode Island. 

McConnell declined to comment. Whitehouse’s office declined an interview request and did not directly respond to a list of questions.

Nowhere but Texas

It may not be a coincidence that two senators from the same state made the top of the list. What makes Texas different?

One explanation is that both of Texas’ senators come from strong legal backgrounds, and both wound up on the Judiciary Committee. And they are on the committee at a time when the influence of Texas lawmakers looms large. 

“I would say we’re in a unique period of history where the conservatism of the United States Senate lines up with the conservatism of Texas politics,” said Paul Brace, a professor of political science at Rice University. 

Another explanation may be the way state judges end up on the bench.

Texas judges at almost every level — from county courts to the highest appellate courts — are elected in partisan contests. Making campaign contributions is part of the norm for many Texas lawyers, even to judges who’ll consider their cases.

That practice is unheard of in most states. Only about a dozen hold partisan elections to fill at least one level of their courts.

While it’s not uncommon for lawyers to be politically active, many states prohibit their judges from making campaign contributions, and that’s a no-go for federal judges as well because of ethical canons in the Code of Conduct for United States Judges. But Texas’ elected judges can.

And there is a common denominator for Cornyn, Cruz and a third of the Texas judicial nominees who’ve been confirmed since Trump became president — their service in the Texas Office of the Attorney General. Cornyn was Texas attorney general from 1999 to 2002 and created the job of solicitor general, which is the state’s top appellate lawyer. When Greg Abbott, Texas’ current governor, served as attorney general, he appointed Cruz as solicitor general.

The office has been something of an incubator for conservative ideology for many years. Cruz defended conservative issues well beyond Texas’ boundaries when he was solicitor general — even urging the Supreme Court to strike down the District of Columbia’s handgun ban. Alumni of the Texas attorney general’s office, including several Texas judicial nominees, embraced that practice. 

Making the picks

The president ultimately chooses judicial nominees, but the process typically starts at the state level — at least for district court judges. How home-state senators come up with recommendations varies.  

In Louisiana, for example, Republican Sen. Bill Cassidy has used an informal committee headed by his brother, lawyer David Cassidy, to vet potential nominees. Sen. John Kennedy is the other half of Louisiana’s Senate delegation and also serves on the Judiciary Committee. Kennedy, who prefers to do his own vetting, got at least $13,000 in contributions from nominees who were confirmed while he was on the committee.

In Pennsylvania, Casey spokesman John Rizzo said in a statement that Casey and the state’s junior senator, Republican Patrick J. Toomey, use “bipartisan judicial selection panels consisting of leading members of the bar and other respected members of the community” and “jointly submit names to the White House.”

Cornyn and Cruz touted their own bipartisan panel of “leading attorneys in Texas” that helped them identify the “most qualified candidates” when the Senate voted last October to confirm Charles R. Eskridge III to the U.S. District Court for the Southern District of Texas. Eskridge has made nearly $75,000 in political contributions to Republican causes.

The press release didn’t mention that Eskridge had once been a member of that panel, called the Federal Judicial Evaluation Committee, along with at least two other federal judges and one U.S. attorney. 

The Texas senators declined to discuss whether those judges and the U.S. attorney were on the vetting committee at the time of their nominations, who replaced them or how the panel evaluated judicial candidates. 

In April 2013, Cruz and Cornyn released a list of 35 people who they said served on the FJEC. Several lawyers on the list — including the chairman and one of the vice chairmen at the time — declined to comment or did not respond to interview requests.

Cornyn spokeswoman Natalie Yezbick sent an email to CQ Roll Call repeating the the same boilerplate language as in the Eskridge press release within hours after a reporter first sought comment from a member of the FJEC.

A copy of the FJEC’s questionnaire for Texans who aspire to the federal bench is available online. It includes questions about their political contributions.

Of the 35 people who were on the FJEC in 2013, 26 have contributed a total of over $400,000 to Cornyn or Cruz, according to Federal Election Commission records.

Three members of the FJEC — Eskridge, James C. Ho and Michael Truncale — not only helped vet nominees to federal judgeships, they ultimately became federal judges after Trump was elected president, with the full-throated support of Cornyn and Cruz. All made large contributions to Cornyn or Cruz before they were nominated — over $80,000 between the three of them.

Allyson Ho, James Ho’s wife, was also an FJEC member and a contributor. 

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Other FJEC members have ended up in federal service.

Erin Nealy Cox, another committee member in 2013, became the U.S. attorney for the Northern District of Texas in November 2017. She contributed at least $11,000 to Cornyn or Cruz before she took that position. Campaign finance records show a $1,400 contribution to Cruz about a year later that still lists her employer as a law firm she last worked at in 2016.

Similar to the process for federal judges, U.S. attorneys go through a confirmation hearing before the Senate Judiciary Committee and a confirmation vote by the full Senate, although it is not a lifetime appointment.

Onetime FJEC member Stephen John Cox, who spent much of his career in civil practice or as a corporate counsel for an oil company, became a deputy associate general counsel in the Department of Justice in March 2017. He contributed almost $10,000 to Cornyn or Cruz before he joined the DOJ.

And Janet Dhillon, a longtime in-house attorney, was confirmed by the Senate to chair the U.S. Equal Employment Opportunity Commission in May 2019. She contributed $2,250 to Cruz about nine months before her name appeared on the 2013 release naming the FJEC committee members.

Kelly Shackelford, president and CEO of the First Liberty Institute, a nonprofit described by supporters as a protector of religious freedom and by detractors as an anti-LGBT group, served on the committee. Ho had worked as a volunteer attorney for the institute, and two Trump nominees who apparently weren’t on the FJEC also had ties. 

Matthew J. Kacsmaryk, who once described being transgender as a “delusion,” had served as the institute’s deputy general counsel. He was confirmed as a U.S. district judge in early 2018. 

Trump nominated Jeff Mateer, who once served as the institute’s general counsel, to a judgeship in 2017. 

But comments Mateer made on LGBT issues — including an assertion that transgender children were part of “Satan’s plan” — prompted a backlash. Cruz continued to support Mateer, who also was an alum of the Texas attorney general’s office, while Cornyn distanced himself

Ultimately, Mateer’s nomination was withdrawn.

National profile, local politics

Graham’s political rise began not long after he moved into private practice, following active duty service as an Air Force lawyer in the 1980s. He won a seat in the state legislature in 1992. He was elected to the U.S. House two years later and to the Senate in 2002.

“Senator Graham very much is plugged into the legal community in the state,” said Kirk Randazzo, chairman of the political science department at the University of South Carolina. “I think he’s always sort of been that way.”

South Carolina judges are chosen by the legislature, not by voters. That makes it important for aspiring judges to have a connection with lawmakers. But the Palmetto State’s legal culture may still have an influence on campaign giving. 

“It is truly a good ol’ boys network in South Carolina,” Randazzo said.

Graham joined the Senate Judiciary Committee in 2003 and became its chairman last year when Iowa’s Charles E. Grassley opted to take the Finance Committee gavel.

Who gave to Graham? Five future nominees, all but one of them from South Carolina. Two who became U.S. district judges gave consistently.

Judge Donald C. Coggins Jr. made nine contributions totaling $14,000 to Graham from May 2001 to September 2015 — five months before Obama nominated him to be a district judge in South Carolina. (That nomination expired, but Coggins was confirmed after Trump renominated him in 2017.)

Coggins’ wife, Joyce Coggins, also contributed about $10,000 to Graham since 2002.

A. Marvin Quattlebaum Jr. gave Graham 10 contributions totaling $13,600 from April 2003 to February 2015. Trump eventually nominated Quattlebaum to a South Carolina district court seat, and then to a spot on the 4th U.S. Circuit Court of Appeals.

Asked about Coggins and Quattlebaum, Bishop, Graham’s spokesman, pointed to their contributions to other senators.

“As for your questions, it appears the judges you cited have long contribution histories to numerous candidates, including Republicans and Democrats,” he said.

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Home sweet home

Senators don’t have to be on the Judiciary Committee to exert tremendous influence on the nomination process. Senate tradition allows home-state senators to weigh in with a written form known as a “blue slip.” 

Traditionally, a negative blue slip could derail a nomination. That’s no longer true for circuit court nominations, but it still holds for federal district court seats.  

For that reason, it has been customary for the White House to confer with home-state senators about recommendations when a vacancy opens up in their state.

In the years leading up to their confirmations, at least 135 federal judges contributed a combined total of about $420,000 to their home-state senators who haven’t served on the Senate Judiciary Committee.

Of those senators, Casey, Pennsylvania’s senior senator, has received the most contributions from judges nominated by Trump or Obama — more than $50,000. Most of that came from a handful of donors whose judicial nominations and confirmations were relatively uneventful, at least by current standards. U.S. District Judge Joseph F. Leeson Jr.’s nearly $15,000 in contributions were the most among the Casey donors who ultimately became federal judges. The Senate confirmed him by a 76-16 vote in 2014.

Rizzo, Casey’s spokesman, did not respond to specific questions but touted the bipartisan panel used by Casey and Toomey to evaluate nominees.

“Pennsylvania has a long history of cooperation between its two U.S. Senators to recommend to the White House on a bipartisan basis qualified, mainstream nominees for federal district court vacancies in the Commonwealth,” he said.

Among other current senators who received contributions from home-state judges, Republicans fill out the top five slots. Indiana Sen. Todd Young, who got almost $25,000 from two Hoosier donors who ultimately became federal judges, was next after Casey. 

“As a candidate, Senator Young vowed to seek out judges who would interpret the Constitution as written and not legislate from the bench — he has kept that promise,” Young spokeswoman Amy Grappone said in a statement. 

Two Democrats who left the Senate in recent years, Mary L. Landrieu of Louisiana and Claire McCaskill of Missouri, also received significant contributions from future judges. Landrieu got over $33,000 from home-state Obama judges — and one eventual Trump judge — before she left the Senate in 2015. McCaskill got nearly $32,000, all from Obama judges, before she left last year.

“I grew up professionally in the legal community,” McCaskill said in an email. “A large number of my co-workers, colleagues and acquaintances have been lawyers. Many of them have contributed to my campaigns over the last 40 years. I’m not sure that should disqualify them from applying for judgeships.”

Landrieu did not respond to requests for comment.

Giving from the bench

FEC records document political contributions made in the names of two sitting district court judges since their confirmations — Judge William J. Martinez of the District of Colorado and Judge Colin S. Bruce of the Central District of Illinois. 

“A judge should really know better than this. It’s just expressly prohibited,” said Jeffrey Shaman, a retired professor at DePaul College of Law and co-author of the book “Judicial Conduct and Ethics.”

The rule against federal judges making political contributions, which also exists in many state court systems, is meant to insulate them from the appearance of bias or conflict.  

Charles Geyh, a law professor at Indiana University Bloomington and one of Shaman’s co-authors, called minor political contributions a “venial sin” that would likely be handled by the chief judge of the judicial circuit privately admonishing the offender. 

Geyh said he was especially concerned about judges breaking the rule at a time when there is growing politicization of the federal judiciary.

“It’s a small part of a larger problem of how worried should we be about judges behaving more and more like politicians,” Geyh said.

In the years before his confirmation in December 2010, FEC records show that Martinez made dozens of small-dollar contributions adding up to over $2,500. Many went to political campaigns through PACs aligned with the Democratic Party, like MoveOn.org and ActBlue.

Martinez stopped giving on Dec. 3, 2010, almost three weeks before his confirmation.

Then, starting in September 2016, a handful of contributions appeared totaling $365, all under the name “William Martinez.” All of that money went to ActBlue, the Democratic fundraising platform. Most was earmarked for Democratic nominee Deborah Ross’ failed 2016 campaign to unseat Republican Sen. Richard M. Burr in North Carolina.

FEC records don’t list an employer or occupation. But they give the same Denver, Colorado, address as contributions from 2004 through 2010 under the names “William Martinez” and “William J Martinez.” Those contributions listed the law firm McNamara, Roseman, Martinez & Kazmierski as the employer. That’s the same firm where Martinez worked from 2001 to 2010, according to his Senate confirmation questionnaire.

The law firm — now called McNamara & Shechter LLP — confirmed that the judge was the only William Martinez who’d worked there.

Martinez declined to comment.

“Judge Martinez asked me to let you know that he has no comment, and to stop attempting to communicate with him or Chambers,” his judicial assistant, Cassandra Hill, said in an email.

Bruce, another Obama nominee, contributed $395 before his confirmation in October 2013, all to the Obama for America reelection campaign, FEC records show. 

Like Martinez, Bruce initially stopped contributing once he ascended to the bench. Then, from Feb. 29, 2016, to June 25, 2019, multiple federal contributions totaling $825 were made under the name “Colin Bruce.” All went to Democratic Sen. Richard J. Durbin of Illinois, who sits on the Judiciary Committee. Durbin recommended that the White House nominate Bruce in 2009 and again in 2013.

Those contributions don’t list an employer, and they list “retired” under occupation. But they list the same address at a post office box in Savoy, Illinois, as an Oct. 31, 2012, contribution from “Colin Bruce.” 

That contribution lists “Attorney” as the occupation and “US Govt” as the employer. At the time, Bruce was the first assistant U.S. attorney for the Central District of Illinois, according to his Senate confirmation questionnaire.

Days after Bruce’s chambers received a certified letter from CQ Roll Call outlining the contributions, Durbin’s campaign made a $1,000 refund to Bruce.

A spokeswoman for Durbin attributed the contribution to a “clerical error,” but the senator’s office would not provide details on the record.

Bruce did not respond to a certified letter, a fax and several phone messages left with his assistant.

At least 15 Trump and Obama nominees made at least one political contribution in between their nomination and their confirmation. That doesn’t violate the code of conduct for federal judges, but experts said it risks creating the appearance of a conflict of interest or a political bias.

“Judicial nominees are really admonished to wash themselves,” Geyh said, “because they are going to be federal judges.”

Kevin H. Sharp, an Obama nominee and former chief judge of the Middle District of Tennessee, gave $900 to Tennessee Republican Sen. Bob Corker in 2011 on the same day the Judiciary Committee recommended his confirmation. The contribution was Sharp’s first and only to Corker, who introduced Sharp in glowing terms at his confirmation hearing earlier that month. 

Sharp’s only other contributions to a Republican — made on Sept. 18, 2002, and March 30, 2008, respectively — went to Tennessee Sen. Lamar Alexander, who also introduced him at the March 2, 2011, hearing.

In an interview, Sharp, who left the bench for private practice in 2017, described both Corker and Alexander as close family friends. He said there was no connection between his contributions and the senators’ support, and he defended his long friendship with both men.

“I think both of them acknowledged our long relationships,” Sharp said. “So relationships do matter.”

Sharp said he wasn’t sure how nominations would get made if there was a rule stopping senators from recommending people they know.

Corker supported nominees solely on what was “best for Tennesseans and for our country,” said Micah Johnson, a spokesman for the former senator. The contribution from Sharp, Johnson said, did not influence his support.

A spokesman for Alexander said the senator received “thousands of contributions” and “does not take such contributions into consideration when he makes policy or nomination decisions.” 

It’s the courts, stupid

Courts have always been powerful institutions. But dysfunction in Congress gives federal judges an outsize impact on every aspect of American life.

“My motto for the lifetime appointments to the courts is ‘Leave no vacancy behind,’” Mitch McConnell told conservative radio host Hugh Hewitt last June. 

Another McConnell tactic: finding younger nominees for the lifetime appointments, potentially remaking the judiciary for decades to come. 

Most majority parties want to get as many of their judges through as possible. But given how hard it’s become to get new legislation passed, there’s a premium on confirming judges in the Senate.  

“There’s usually a legislative agenda that a majority party would have, and judges would just be one part of it,” said Gabe Roth, executive director of the nonpartisan advocacy group Fix the Court. “Now it seems to be the only agenda that Senate Republicans have. That’s new.” 

There is also a perception among some experts that politicians are growing more willing to call judges and their rulings into question — as illustrated by Trump’s recent criticisms of U.S. District Judge Amy Berman Jackson and his suggestion that Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg are biased against him.

Now some experts worry that the swing back toward partisanship could erode the legitimacy of the courts. People listen to the courts because they see them as neutral arbiters. If that changes — if judges are seen as political operatives rather than unbiased professionals — it may become easier to shrug off their rulings as just more partisan spin.

Courts “lack both the sword and the purse,” said Torres-Spelliscy, the Stetson law professor. “So all they have is their moral persuasion.”