Republicans control the White House. They hold the majority in the U.S. Senate. Thus, as a reflection of the thinking of voters, the party deserves leeway in the nomination and confirmation of federal judges. President Trump and Senate Republicans have had as much, gaining approval of 66 judicial nominees the past year, the 30 appeals court confirmations more any administration after two years. Mitch McConnell, the Senate majority leader, has given the judiciary high priority.
That said, the president and fellow Republicans deserve to be checked when nominees prove unqualified or too partisan or otherwise lack the preparation and temperament required for the federal bench. Which is the case for two nominees, Chad Readler and Eric Murphy, both tapped by the president to join the U.S. Court of Appeals for the Sixth Circuit, covering Ohio, Michigan, Kentucky and Tennessee.
Readler and Murphy first were nominated last year. On Thursday, the Senate Judiciary Committee will take up their nominations. Readler would replace Deborah Cook of Akron, and Murphy would take the seat of Alice Batchelder of Medina. Both Cook and Batchelder were the selections of Republican presidents, the former by George W. Bush, the latter elevated to the appeals court by George H.W. Bush.
What troubles about the Readler nomination? He currently serves as the principal deputy U.S. assistant attorney general for the civil division of the Justice Department. In June, during his short time as the acting head of the civil division, he filed a brief refusing to defend the Affordable Care Act. He joined those arguing that Congress, in repealing the penalty linked to the individual mandate, invalidated the entire law, including protections for pre-existing conditions.
The filing broke with the long, bipartisan tradition of the Justice Department defending federal laws in court, except in the rarest instances. As a result, three Justice veterans withdrew from the case, one resigning from the department. The reasoning of the Readler filing also faced a wide range of criticism. U.S. Sen. Lamar Alexander, a Tennessee Republican, called the argument “as far-fetched as any I’ve ever heard.” The senator reminded that Congress intended to jettison just the tax — not all the rest.
The deeper concern is that this episode goes to a pattern of Readler the arch advocate for conservative causes. In arguing to include a controversial citizenship question in the census, he advanced two false notions — that the question was necessary to help enforce the Voting Rights Act and that Justice requested the question. He defended the president’s specious Commission on Election Integrity, which eventually collapsed for lack of a good purpose.
Readler also defended the separation of immigrant families at the border and the usurping of congressional power in the president seeking to deny federal funds to sanctuary cities. In Ohio, he has been a vigorous supporter of charter schools, even arguing that for-profit school management companies should get possession of publicly funded assets.
These and other episodes would be less worrisome if Readler could point to time he has spent on the bench in which he demonstrated the necessary judicial temperament. But that is not the case. The same applies to Eric Murphy, who also has carried partisan causes, albeit mostly in his role as an attorney. Murphy has been the state solicitor in the Ohio attorney general’s office since 2013. Both men clearly are smart and capable. Perhaps they will surprise committee members. The question that hovers is: Aren’t there other attorneys or judges in Ohio with more reassuring records, combining the philosophy Republicans seek with a proven approach to the benefit of the court? Of course, there are. But that doesn’t seem the point.