On Tuesday, I testified before the Senate Judiciary Committee for a hearing about the current conflicts between the district courts and the President. You can watch the video here. The hearing was co-chaired by Senator Eric Schmitt of Missouri. On Wednesday, I met with Senator Schmitt to talk about judicial nominations in President Trump’s second term. In particular, we focused on the four picks for the Eastern District of Missouri, who were President Trump’s first district court nominees: Cristian Stevens, Maria Lanahan, Zachary Bluestone, and Joshua Divine. All four of these nominees had worked with Senator Schmitt when he was Missouri Attorney General. We also chatted about judicial courage, the role of the Federalist Society, and what lies ahead for the Eighth Circuit.
I’ve lightly edited the transcript for length and clarity.
JB: Let’s start with talking about the first four judges from the Eastern District of Missouri (EDMO). How did you get to be first? I’m from Texas and we still don’t have any Texas nominees. Florida just came out a few weeks ago. Missouri was first, right out of the gate.
ES: Well, I think we were ready. The Biden administration halfway attempted to fill some spots, but never really negotiated in good faith. And then, of course, when President Trump won, we knew there would be four openings.
Vice President [Vance is a] very good friend of mine, I spent a lot of time with President Trump on the campaign trail. [I] got to know him and contact frequently. [I made] very clear my interest in in making sure we’ve got good conservative judges across the country, particularly in my home state, I think that led to us being ready to roll on this, and working really well with the White House team to get these people queued up.
What’s really interesting is each of [the four nominees] worked in [the Attorney’s General office] when I was attorney general. I think it’s a great kind of training ground now for conservative lawyers to get good experience. You view the laws as it’s written, not how it should be. We were ready and we wanted to move quickly. We’re going to have seven out of the eight eastern District Court [of Missouri] judges now as Trump appointees. The Eighth Circuit is always very solid. I think there are going to be some opportunities within the Eighth Circuit to get some additional appointments in the next three and a half years. In my view, we have really the strongest from a District Court level all the way up to the Circuit in the country, and that’s something we proud of.
JB: What is your process for picking judges? Is there a committee with both senators from the state?
ES: Senator [Josh] Hawley and I both have the background of being Attorney General, and knowing some of the people, we had a conversation. Ethan Harper, my general counsel, will interview candidates, and I had conversations with them as well. This [process] was especially unique because I was very familiar with all four of them. They’ve worked in my office, and they’re exceptionally qualified. They’ve got the right temperament. They were in a lot of the important fights that define my tenure. But this was particularly unique because of the personal connection and having seen them in action and how they handle situations. And their competencies [were] off the charts.
JB: President Trump and Vice President Vance have said courage is an important facet of being a judge. I’ve heard you refer to fights. We saw soon-to-be judge Hermandorfer, who has engaged in these contentious cases. Why is it so important that judicial nominees have this sense of fight, this sort of backbone, this willingness to engage in this sort of battle? Why is this a good facet to have?
ES: I think there’s tremendous amount of pressure from the left, as we’ve seen, to try to intimidate judges. Look at what they’ve done before the Supreme Court ruled on Dobbs, and the public pressure from people like Chuck Schumer calling for a whirlwind to be visited upon them, and assassination attempts. I think in many ways, the left wants to operate outside of our judicial system. It’s just this sort of Marxist ideology that’s captured, sadly, the Democrats and how they view all of these legal fights. And so I feel like I gained a really interesting perspective having been Attorney General in the state during COVID, having had the student loan debt forgiveness case, having had the misinformation case, and the vaccine mandate cases. I certainly learned something in that time, sort of this sort of forging, of being in that kind of position. And you certainly appreciate people who are going to do the right thing, no matter what kind of pressure is out there. And I think that for a judge in particular, especially in this day and age, when there’s access to so much more information, I think that’s an important quality.
JB: Do you think there’s some judicial conservatives who kind of know the right answer, but pull back and say, “I don’t know. Maybe we shouldn’t do this.” Is that something that you’ve seen or that you that you suspect goes on?
ES: My hope is that President Trump sort of writ large for conservatives, has really taught everybody an important lesson about how to fight back and not to back down. What he went through to get back to this is incredible. [Trump had] a historically unique, a monumental accomplishment for that kind of comeback in the face of the Lawfare [and] the weaponization of the Justice Department. It’s really important to have people who appreciate the rule of law and understand what that weaponization would look like.
I do think that kind of courage and grit, the willingness to sort of to stick to your guns, even when there’s a lot of public pressure pushing you in a direction, is important. I don’t think President Trump gets enough credit for this. Sixty years ago, Republicans made a lot of these judicial appointments based on purely relationships, right? And we ended up with some swings and misses. People that ended up not what you expected them to be on the Supreme Court. I think there’s a conservative ecosystem now that’s really important, of helping us identify people who can be great candidates. And then you add that onto personal experience, which is a little bit unique [witch leads to] four outstanding candidates.
JB: You speak of the ecosystem. I mean, the Federalist Society is at least part of that. But as you’ve seen from the President’s social media, he is not the biggest fan of FedSoc. Now, what do you see the role of FedSoc, and, more generally, originalism and textualism as part of the criteria for selecting these judges.
ES: I’m 49 so I’m a proud Gen Xer. So I was part of the generation that did legal research by books and then also electronically. I was also in law school at a time where there were professors still talking about the Constitution as a living document. And I think at a really important time in my life, Justice Scalia and Thomas’s opinions infused originalism and textualism into the lexicon. That is now very much accepted, but at the time is ridiculed. FedSoc was a forerunner that fostered the original understanding and the original meaning of the Constitution. Why are horizontal and vertical separation of powers important and meant to protect individual liberty? Those are really important sort of communities for people who are being trained in the law to be a part of, and you can find comfort in knowing there’s other people who view the world the same way. Because the legal profession, by and large, is not particularly conservative. You’ve seen how the ABA in particular has been captured by the left and is totally discredited. So it’s just important for people to find community in the idea that you can be proud of the fact that you believe that the Constitution is actually going to mean something. If it just is like sort of this living and breathing document that changes based on what kind of breakfast the judge had that day, then it means nothing. It means nothing. So I feel good. I feel like we’re in a good place and we’ve got a good trajectory here. I think the next four years, with President Trump at the helm, picking more and more of these district and appellate court judges, and who knows beyond that, that’s good for the country.
JB: Do you see any difference between the Trump 1.0 approach and the Trump 2.0 approach for nominating judges? Did we learn any lessons in the last four years of how you make appointments in Missouri and nationwide?
ES: For judges, I think President Trump has entered the office with a much clearer understanding of Washington. From a policy perspective in particular, he very much knows exactly what he wans to do. And I think in many ways, the Democrats are still reeling from all of this, because they can’t believe, actually, that he pulled it off. They can’t believe that the American people voted the way they voted because . . . they thought they were ridding the country of a movement, and they only strengthened it by putting President Trump through all that. I think he really galvanized support for the American people by sitting in that jury box looking at everything that was happening. They were trying to throw a political opponent in jail for the rest of his life.
JB: If my math is right, some Eighth Circuit vacancies might open up. What are some things you’re looking for in a circuit vacancy for Missouri, as opposed to a District Court vacancy?
ES: I think those will potentially come up. What’s really important right now is that ten of the eleven [circuit judges] were appointed by Republicans. So you might expect there potentially be some retirements coming up, and I think it’s just a huge opportunity to really solidify the Eighth Circuit as a venue, as an appellate court that, again, treats people fairly, and isn’t putting its thumb on the scale based on sort of the political outcome they want to see, but rather interpreting the law as it’s written. After four years . . . [in] the Eastern District of Missouri, and we’ll see what happens in the Western District, [there will be] a place where people feel very confident that they’re going to be treated fairly. And then as those cases make their way up to the Eighth Circuit that confidence can only increase. So it’s pretty unique time, actually, to be from Missouri, to be a former Attorney General, to have the relationship with the President in a time where we’re going to have all these appointees come up. We intend to play an active role nationally in some of those conversations about picks, but making sure we take care of a Missouri and the Eighth Circuits is a big priority.
JB: Yesterday at the hearing, they kept talking about Amarillo and the Northern District of Texas, and conservatives go to these single judge divisions. I think conservatives do that because they can’t get a fair shake elsewhere. But if they go to St Louis, I think they’re going to have a pretty good shot of drawing a fair judge who hear the case dispassionately.
ES: I mean, you hear that criticism from people that filed court cases in the Northern District California for decades.
JB: Even the Republican appointees in California were all Barbara Boxer or Dianne Feinstein picks due to the blue slip policy.
JB: Do you think we’ll get a Supreme Court vacant anytime soon? No,
ES: No, that is not up to me. Speaking of this, you know, [Justice Clarence] Clarence Thomas’s first job was with [Missouri Attorney General Dan] Danforth. There’s a conference room in the Missouri Attorney General’s office that at one time was the office of [future Senator] Kit Bond, [future United States Attorney General] John Ashcroft and [future Justice] Clarence Thomas. That was kind of the generation that kind of broke through and then. Now, we’re a generation or two past that, but, I think he has fond memories of his time in Missouri, but I don’t want to see him go.
JB: Thank you Senator.
ES: Thank you.