Justice Cody Hiland Publicly Criticizes The President For Nominating Him To District Court Instead of Eighth Circuit
· Reason
We are coming into the endgame for President Trump's judicial nominees. Since the election, it seems the President has made (at least) two nominations to the federal bench in Texas: Justice James Sullivan of the Texas Supreme Court for the WDTX seat in Austin and OLC Head Elliot Gaiser for the NDTX seat in Dallas. I say "seems" because the President has not posted these nominations to Truth Social, as that makes it official. But the Senate Judiciary Committee has received questionnaires for both candidates. I have known both of these sharp legal minds for some time, and would welcome their addition to the bench. Will Sullivan and Gaiser get votes? I sure hope so. Over the next six weeks, Republican Senators will need to be motived to vote, while Democrat Senators will pull out every stop to leave these seats open. Plus, there is an entire line of other nominees who are still waiting for votes.
Beyond the district court nominees, there is the question of circuit court nominees. Judge Anna St. John's nomination to the Fifth Circuit and Judge Daniel Domenico's nomination to the Tenth Circuit are pending. They had their hearings some time ago, and should get through. Todd Butler has not even had his hearing yet, so he is down the pecking order. Then there is Judge Lee Rudofksy, a nominee to the Eighth Circuit, who had his hearing back in September. Yet, both of the Arkansas Senators are blocking Rudofsky's nomination. Why? They prefer Justice Cody Hiland, a member of the Arkansas Supreme Court.
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There's a problem with Hiland. He has demonstrated absolutely terrible judgment which should permanently disqualify him from holding any public office.
In August, he decided to disclose to a room full of law students private communications between him and the White House Counsel. Worse, rather than teaching students about the value of grace, he promoting belligerence and vindictiveness. In short, the White House approached Hiland about a nomination to the Eighth Circuit. After the vetting process, the White House changed course, and offered Hiland a seat on the federal district court. Hiland refused, and told the White House Counsel to tell President Trump about it. He said all of this on a livestream. You can watch it here, starting around the 16:45 mark:
And I've transcribed the comments for those who prefer to read:
The second thing I want to talk about is you're going to have to learn to be resilient, and maybe this far in your career, maybe it's been easy for you. I don't know, but you're going to have to learn how to be knocked down and then get back up, and then also not to be intimidated. Resiliency is something that is going to carry with you the rest of your career. Now, I'm going to tell you a story that just happened to me because resilience matters even at this point in a career. So, you you want to hear a backstory on something? Nobody ever gets to hear backstories. I'm going to give you a backstory. So, about two months ago, I was contacted about being appointed by the president to the Eighth Circuit. Okay, I had senators who asked me to do it. Applied, went to the interview in front of a White House panel of eight Ivy League attorneys, did an interview, and then got a call. And the call said, "You know what? We're going to recommend that the president appoints you to the Eighth Circuit, and so they started a background check. The FBI goes out, and if you've ever served in these capacities, you know that there's a full field investigation that takes place. And select 12 or 13 agents just investigate you for about six weeks. And in this case, they ask them to finish it in two weeks because they wanted to get it done, and so the FBI went out and they talked to over 130 people about me and my life. And when Dean Crawford is talking about social media, you know that sort of thing matters, okay? Because they go back to the time that you're 18 and they talk to everybody you've ever leased from. They tell you they're going to talk to your girlfriends and everybody else. It's like taking a bath with a brillo pad. Okay, good decisions matter as you go along this course, and so it rocked along. And last Tuesday, I had a meeting. Last Wednesday, I had a meeting for three hours with the Department of Justice, finalizing my Senate Judiciary Committee questionnaire, and it was going to be sent in. And I was told to go home and to expect a phone call from the President of the United States, and to be offered the position. And so I went home and I charged my phone and I called my wife and I said, "You need to come home tonight's the night. We've been through two months of unbelievable minutia of a life that's quite frankly not that interesting. Okay, but I had to have it all, and we had prepared it. It was ready to it was ready to go. And I get a phone call from 202. For those of you don't know, that's Washington D.C. And the man on the other end of the line was not the president of the United States. It was White House Counsel, who, by the way, had recommended that we be chosen. And White House Counsel said the president would like to know if you would be interested in a federal district court position. Eastern District of Arkansas, and I said, "You mean Circuit, Eighth Circuit? No, no, no. Federal District Judge in the Eastern District of Arkansas." And so your mind starts going, "What in the world has happened? What am I hearing?" And so, being belligerent, and at times I said no. That is not a position that I'm interested in. And he came back with after a five second delay of you know not believing what I just said. He said, "So you want me to go back into the Oval Office and tell the President of the United States that you're rejecting an opportunity to be appointed to the federal bench, and I said, "Yes, that's exactly what I want you to tell the president of the United States." And so, you know, I tell that story to say this because I want to be honest. Because too many elected officials are just not transparent, and that happened to me last week. You know what? It's okay because I'd never dreamed of being on the Eighth Circuit. It had never been had come to my mind. But we had an expectation based on an FBI investigation, based on communication from those that make these decisions that it was done. And sometimes, guys, it's not done. Sometimes your expectations are not met. When you're a student here with these kind of people, this kind of quality, not everybody is going to make the top paper. Not everybody is going to make law review. Despite what your expectations may be there are times where your expectations are not going to be met, and it's going to happen for the rest of your life at times. And so, as you begin this career, start developing that resiliency.
Talking to law students is my profession. I can't imagine a judge making such a huge blunder. What lesson are these students taking away here? That you should be so stubborn about getting one position that you refuse another lifetime commission? That you should reveal private communications with the White House in which you admit you were "belligerent"? He is comparing not getting an Eighth Circuit appointment to not getting on law review? No wonder the White House didn't pick him. In my view, making a bad nomination is worse than making no nomination at all (see Butler). The Eighth Circuit is at a turning point. Judge Stras writes far too many dissents. One more vote could flip the circuit. Arkansas is but one state in the circuit. This stubbornness will spite the good people of those states.
Here's the bottom line. Senators pick Judges who are their friends. Those are the worst possible reasons to pick a judge. We need to reward the people who advance the rule of law, not those who are chummy with Senators. And yes, this applies to Todd Butler too. The Junior Senator from Mississippi told people to choose a different protein. Well, they should have chosen a different judge. But here we are.
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