Apparently, the Arkansas delegation is hindering Judge Lee Rudofsky’s bid for the Eighth Circuit because Hiland did not receive the nomination.
We are nearing the final stretch for President Trump’s judicial picks. Since the election, it looks like the President has floated at least two federal judges for Texas: Justice James Sullivan of the Texas Supreme Court for the Western District seat in Austin and Elliot Gaiser, the head of the Office of Legal Counsel, for the Northern District seat in Dallas. I say “looks” because the President has not posted these selections on Truth Social to make them official. Nevertheless, the Senate Judiciary Committee has already received questionnaires for both nominees. I have known these two sharp legal minds for quite a while, and I would welcome them joining the bench. Will Sullivan and Gaiser win confirmations? I sincerely hope so. Over the next six weeks, Republicans in the Senate will need to be energized to vote, while Democrats will press to keep those seats open. Additionally, a full slate of other nominees still awaits votes.
Beyond district court appointments, the fate of several circuit court candidates looms. Judge Anna St. John is nominated to the Fifth Circuit, and Judge Daniel Domenico to the Tenth Circuit; their hearings occurred some time ago and should advance. Todd Butler has not even had his hearing yet, placing him further down the line. Then there is Judge Lee Rudofsky, the nominee to the Eighth Circuit, who had a hearing in September. Yet both Arkansas Senators are blocking Rudofsky’s nomination. Why? Their preference remains Justice Cody Hiland, a member of the Arkansas Supreme Court.
There is a problem with Hiland. His record shows judgment that many would deem profoundly flawed, raising questions about whether he should ever hold a public office again.
In August, he chose to expose in front of a room of law students private exchanges between himself and the White House Counsel. More troubling is what he did with that moment: rather than impart a lesson on the value of mercy, he appeared to advocate a combative, retaliatory stance. In short, the White House had approached Hiland about a nomination to the Eighth Circuit. After the vetting, the White House shifted direction and offered Hiland a seat on the federal district court. Hiland declined and told the White House Counsel to inform the President of Trump that he was declining. He stated all of this in a livestream. You can view it here, starting around the 16:45 mark:
And I’ve transcribed the remarks for those who prefer reading:
The second thing I want to speak about is the necessity of resilience, and perhaps by this stage in your career it has already been tested. You will need to endure setbacks, get back on your feet, and not waver in the face of pressure. Resilience is a constant companion as you move forward in your profession. Now, I’ll share a backstory just to illustrate the point. So, about two months ago, I was approached about a potential appointment to the Eighth Circuit. I went through the process, submitted myself to interviews before a White House panel of eight Ivy League lawyers, and after the interview I received a call. The message was that the president’s team intended to nominate me to the Eighth Circuit, so a background check would begin. The FBI would conduct a comprehensive investigation, including speaking with around 130 people who know me, and looking into details from decades ago. It’s a thorough process—think of it as a very detailed scrub. They even probe the time you were eighteen, and they contact people you’ve interacted with over the years. It’s an exacting standard, and the decision hinges on the outcomes of that scrutiny. The process was moving along, and last Tuesday I had a meeting; last Wednesday I spent three hours with the Department of Justice, finalizing my Senate Judiciary Committee questionnaire, which would soon be sent in. I was told to head home, and to expect a call from the President to offer the position. So I went home, charged my phone, and told my wife that tonight could be the night—we had endured months of meticulous, sometimes tedious, preparation. And then I received a call from 202, which, for those unfamiliar, is Washington, D.C. The person on the other end wasn’t the President; it was the White House Counsel, who had recommended my selection. He explained that the President would like to know if I would consider a federal district court role in the Eastern District of Arkansas. I asked, “Eighth Circuit?” and he corrected me, “No—that would be a district court appointment.” My mind reeled. And so, being stubborn, I bluntly said no. That is not a position I’m interested in. After a brief pause, the aide asked what it would take for me to change course, and I responded, “If I’m going to decline, I should be the one telling the President.” So I told him I would relay that message. I share this to be candid about the process, because too many elected officials lack transparency, and this episode proves it. I had never envisioned serving on the Eighth Circuit. It hadn’t even crossed my mind. Yet we were under the impression, based on FBI checks and the communications from those who control these decisions, that the process was complete. And that is sometimes how it goes: expectations are not always met. As students and future lawyers, you should anticipate that not every goal will be reached, and you must cultivate resilience for a lifetime.
Speaking with law students is the core of my vocation. I can’t imagine a judge making such an oversized misstep. What lesson are these students supposed to take from this? That you should cling so tightly to one opening that you reject a life-time appointment? That you should disclose private White House communications in which you admit to a combative attitude? He is drawing an unclear comparison between not landing an Eighth Circuit seat and not landing a place on law review. No wonder the White House passed on him. In my view, an ill-considered nomination is worse than no nomination at all (see Butler). The Eighth Circuit stands at a crossroads. Judge Stras writes dissent after dissent too often. A single vote could tilt that circuit. Arkansas is merely one voice within that circuit, and this stubborn stance could end up harming the people in those states as a whole.
Let’s cut to the chase. Senators tend to appoint judges who are their allies. That is among the worst reasons to select a judge. We should honor those who advance the rule of law, not those who are merely in a friend-circle with lawmakers. This critique applies to Todd Butler as well. The junior senator from Mississippi urged casting a different vote on a nominee’s fate. In hindsight, that might have been the wiser choice. Yet here we stand.
