Women Need Not Apply –– For U.S. Attorney Or The Federal Bench

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Women Need Not Apply: For U.S. Attorney Or The Federal Bench

September 13, 2017

Late last week, when Donald Trump nominated Andrew Lelling to be the next U.S. Attorney for Massachusetts, neither of the state’s Senators registered any reaction. That’s a bit odd, given that Senators are traditionally closely involved in the selection of their states’ top federal prosecutors. By the time the President makes an announcement, those Senators are usually ready to issue a press release with some generally positive observations.

Ed Markey and Elizabeth Warren were not consulted, and the formal nominating committee was essentially ignored, I’ve been told by people close to the Senators. Hence their silence on the topic of Lelling.

The bypassing of traditional process—and particularly Democrats and non-partisans—might also help explain why Trump is establishing a shocking gender gap among federal prosecutors in the country’s 93 US Attorney offices.

Trump has now forwarded nominations for 42 of the 93—and 41 of those 42 nominees are men.

By working from their own small, non-diverse circles—“the Trumpian universe,” one Senate staffer puts it—the nearly inevitable result is a non-diverse set of nominees. Aside from a black man, an Asian-American man, and an Asian-American woman, the U.S. Attorney nominees have been white men.

 “The underrepresentation of women in our federal judiciary is a longstanding problem that President Trump is ignoring with his slate of nominees," Senator Markey said in a statement. "Women and people of color bring unique perspectives on issues ranging from criminal justice to affirmative action to reproductive rights, and our federal judges and U.S. Attorneys should reflect that diversity.”

At the end of the Obama administration, 24 U.S. Attorneys were women, including Carmen Ortiz in Boston. All 93 left either before Trump took office (as Ortiz did), or after he requested their resignations; he is in the process of completely replacing their ranks.

That 98 percent of U.S. Attorney nominees are white men is the most blatant example yet of how the federal government, under control of President Trump and the Republican Party, is turning into an old-fashioned patriarchy.

As I have written before, men dominate top cabinet positions, White House staff, and congressional leadership.

With the U.S. Attorney selections, that male dominance is now extended to the states.

Looking more closely at the nominations, it becomes clear that Trump has moved forward quickly where he has Republican Senators to work with. In states with two GOP Senators, nominations have already been made for 28 of 39 US Attornies; where there is one Republican Senator, 11 of 21.

But for the 33 openings in states with no Republican Senators—including territories with no Senators at all—Lelling is just the third nominee. He follows only John Lausch Jr., nominated for the Chicago-based Northern district of Illinois; and the only woman so far, Jessie K. Liu, to be U.S. Attorney for the District of Columbia.

Oddly, Trump took the unusual step of personally interviewing Liu before nominating her—the only one of his U.S. Attorney choices for which he is known to have done so.

In states where Trump’s people had at least one Republican Senator to help them, the process somehow ended up with a man as the nominee every single time: a perfect 39 for 39 so far.

Whether a nearly all-male prosecutorial team will have an effect on the administration of justice is debatable. It certainly does seem to confirm an ingrained patriarchal hierarchy within Republican Party circles across the country.

Past Republican administrations have been able to overcome that gender disparity within the party, through a combination of good intentions and concerted effort—including the type of “binders full of women” approach that got Mitt Romney laughed at, but which has proven effective.

Trump’s administration, by contrast, has repeatedly shown that it is uninterested and unwilling to make such efforts.

The resulting male domination of the federal government will continue to trickle down into its offices in the states, beyond just the U.S. Attorney appointments.

It’s manifesting itself in Trump’s judicial nominations as well, although they haven’t been nearly as lopsided as the prosecutors. Ten of his first 50 nominees to District Courts and Circuit Courts of Appeals have been women, or 20%. That is still a sharp reversal. Women comprised more than 35% of judges on those courts when Trump took office—a rate that has risen steadily, through Democratic and Republican Presidencies, for the past 40 years. Obama’s confirmed judicial nominees were 42% female.

As with the U.S. Attorneys, Trump has acted first to nominate judges with Republican Senators—in fact, he has not yet nominated a single District Court judge in a state with even one Democratic Senator.

That includes Massachusetts, with two District Court openings. A nomination committee has begun accepting applications—but there is no guarantee its work won’t be ignored just like the nominating committee for the state’s U.S. Attorney.

If you’re thinking that perhaps more women will emerge once Trump gets around to nominations in bluer states, there seems to be little indication of that.

Instead, as in Massachusetts, circumventing Democratic Senators seems to be forcing the Trump team to take a more time to find and vet their eventual male selections.

Geoffrey Berman, a Rudy Giuliani associate, is expected to get the high-profile Manhattan U.S. Attorney position, according to a New York Times report in August. The same article named two men as finalists for Brooklyn’s spot. The Philadelphia Inquirer has reported that Craig Carpenito—who worked for Chris Christie—is the leading candidate to become New Jersey’s top federal prosecutor. Four men are vying for the two Michigan district positions, according to the Detroit News. Same for Virginia’s Western district, reports the Richmond Times-Dispatch. The Miami Herald has named five men as contenders in Florida’s Southern district.

What does seem likely is that in these states, the frustrated Democratic Senators will take out their bitterness at being bypassed during the confirmation process.

The initial silence from Markey and Warren, who will vote on Lelling's appointment, could well presage pushback. Lelling, after all, has a lengthy prosecutorial record. There is little doubt that Warren and Markey will study it closely.

Similarly, Vermont’s veteran Senators Pat Leah

Similarly, Vermont’s veteran Senator Pat Leahy is likely to make waves if, as reports suggest, Trump bypasses his recommendation of Christina Nolan, an apolitical prosecutor who has played an important role in fighting opiod addicition. Nolan also enjoys the support of Vermont's Republican governor. Trump is reportedly considering Brady Toensing, his local campaign chair, who has been calling for an investigation of Bernie Sanders's wife over a land deal.

But keep an eye on Richard Blumenthal of Connecticut, and Sheldon Whitehouse of Rhode Island.

Both are members of the Judiciary Committee, which vets and recommends approval or rejection of U.S. Attorney candidates—and both are themselves former U.S. Attorneys. The two New Englanders have already exhibited annoyance over the Trump administration’s lack of deference. Don’t be too surprised if they use confirmation hearings as a forum to strike back.


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