In the News
United States Court of Federal Claims
On September 28, 2017, President Trump nominated Ryan Holte to the United States Court of Federal Claims. Holte joins a string of Trump judicial nominees whose youth and inexperience are especially striking. Notably, the nomination of another recent judicial candidate who had never tried a case, Brett Talley, was sidelined when his lack of qualifications was widely derided on the Hill and in the press. Holte’s fate will soon be decided.
Like Talley, Holte is in his mid-thirties: 34, as of this writing. He graduated from law school less than ten years ago, and has openly admitted, “I have not tried a case.” Nominations to the Court of Federal Claims are not evaluated by the American Bar Association; however, if they were, Holte would be immediately deemed unqualified on the basis of his lack of experience.
Holte’s lack of experience is even more notable given the White House’s own claims about its judicial nominations. In response to reports that President Trump has nominated the fewest women to the federal bench in recent history, the Chicago Tribune reported that “White House spokesman Hogan Gidley says Trump is focused on qualifications and suggests that prioritizing diversity would bring politics to the bench.” Holte’s nomination stands in sharp contrast to this claim, and suggests the opposite: that the White House is in fact prioritizing ideology over credentials – while it continues to place candidates who are predominantly white men on the bench.
In fact, comparing the qualifications of Holte to those of Judge Nancy Firestone – who was President Obama’s nominee to the same court seat – is telling. Firestone, who was nominated for a second term on the court, was reported out of the Judiciary Committee twice by voice vote, yet was not confirmed by Senate Republicans. When Firestone was first nominated to the Court of Federal Claims in 1998, she had served in various capacities as an attorney with the Justice Department for 12 years, from 1977 to 1989. From 1989 to 1992, Firestone was Associate Deputy Administrator of the EPA, and then for three years she was a judge on the EPA’s Environmental Appeals Board. Firestone then served as Deputy Assistant Attorney General in the Environmental and Natural Resources Division. Finally, at the time Obama nominated her for a second term, she had fifteen years of experience as a judge on the Court of Federal Claims.
In other words, when Senate Republicans refused to confirm Firestone, her years of legal experience exceeded Holte’s entire lifetime. Even putting aside her years as an attorney before joining the bench, she had far more years of experience as a judge than Holte has had in the practice of law.
Clearly, White House protestations to the contrary, a candidate like Holte could not have been nominated because of his extensive legal experience. That inevitably raises a question as to why this 34-year-old with no trial experience was selected from among thousands of lawyers in the country.
On this front, a few observations are revealing.
First, it seems that for this President, lack of experience is far from disqualifying when it comes to the Court of Federal Claims. Damien Schiff and Stephen Schwartz, his other nominees for the court, are likewise under 40, and likewise replaced much more highly qualified Obama nominees.
Not only that, but, Schiff and Schwartz are highly ideological nominees. They have records vigorously opposing civil rights for minorities, women and LGBTQ persons, as well as environmental safeguards.
Holte’s record, on the surface, appears more bland – even dull –by comparison. Unlike Damien Schiff, he has not called a sitting Supreme Court justice a “judicial prostitute” or objected to efforts designed to prevent bullying of LGBTQ students by referring to them as “teaching gayness in schools.” Instead, Holte has given talks on patent law with themes such as “Why Patent Trolls are Good,” and published an article in the St. Louis University Law Journal titled, “Trolls or Great Inventors: Case Studies of Patent Assertion Entities.”
But while he may not be a flame-thrower like Schiff or several of Trump’s other nominees, Holte’s ideological bona fides are every bit as real.
Holte, like many of President Trump’s judicial picks, is a longtime member of the Federalist Society, having joined in 2005. Perhaps even more significantly, since 2009 he has been a member of the lesser-known Teneo Network, described by the National Review as “a network of young conservatives, doing what they can to advance conservative principles.”
Teneo was founded by Evan Baehr, a recipient of the Alliance Defending Freedom’s Blackstone Fellowship (Alliance Defending Freedom has been deemed a “hate group” by the Southern Poverty Law Center). While Teneo’s website is no longer public, as reported by one journalist, Teneo described itself on its website as “a network of the nation’s most outstanding and entrepreneurial conservatives under 40 that seeks to establish conservativism as the most relevant, most responsive and most effective political ideology.” Further, in captured screen shots, Teneo described itself as “an organization of exceptional young professionals under 40 years of age committed to advancing conservative and libertarian ideas.” Members “are passionate about a variety of conservative and libertarian causes” and “commit ourselves to . . . innovative applications of conservative principles.” Since 2010, Teneo has received at least $250,000 from the Koch donor-advised fund, Donors Trust.
In 2013, Teneo members, presumably including Holte, were invited to attend a meeting of the Council for National Policy, which The New York Times has called “a little-known club of a few hundred of the most powerful conservatives in the country.” It has been described as a secretive organization that “networks wealthy right-wing donors together with top conservative operatives to plan long-term movement strategy.” Also in 2013, Teneo members, presumably including Holte, were invited to a meeting with Reg Brown, “a brilliant political operator in the conservative movement with a wealth of insight.” At the dinner, members had an “opportunity to chat” about “the best opportunities for young conservative operatives in D.C.,” according to the invitation.
Other Trump judicial nominees have dismissed their membership in the Federalist Society during their confirmation hearings by claiming it is a mere debating society. But Teneo appears to be a different animal: wholly political, activist, and, in its own words, a breeding ground for “conservative operatives.” Federal judges may be many things: “operatives” should not be among them. At a minimum Holte, if he gets as far as a confirmation hearing, should be questioned about his Teneo affiliation and commitment to “advancing conservative and libertarian ideas” and whether that is applicable in the context of a federal judgeship.
The relevance of all this is that Holte, just 34 years old, is simply not being nominated to the Court of Federal Claims because of his legal experience but rather because of his political activism and commitment. He is a “young conservative operative,” with an ideologically driven agenda, “commit[ted]” to “applications of conservative principles.” Whether that can coexist with the ability to appreciate and administer a neutral application of the law is a serious question that should concern anyone looking at this nomination.