Judge Mary M. Rowland appearing at her confirmation hearing. Credit: Diego M. Radzinschi / NLJ

The Trump administration's decision to leave off nearly two dozen court picks in its list of judicial renominations this week has raised eyebrows in Washington, but it came with particular surprise for some of the nominees' home state senators, who are now urging their renominations.

After over 70 of its judicial nominations lapsed at the start of the year, the White House on Wednesday resubmitted the nominations of 50 judicial nominees. But the announcement left behind 23 judicial nominations, a large chunk of those nominees come from states with Democratic senators, such as California, New York, Maryland, Illinois and Rhode Island.

While it appears the White House plans to resubmit or renegotiate some nominations, some lawmakers said Thursday they were surprised by the exclusion of these picks—most of whom enjoy bipartisan Senate support—and urged the president to resubmit the nominees.

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Among the nominees missing from Wednesday's list of resubmissions were three picks to the Northern District of Illinois. Sens. Dick Durbin and Tammy Duckworth, both Democrats, had previously worked with the White House to select a compromise package on those judges, who include Treasury Department lawyer Martha Pacold, U.S. Securities and Exchange Commission attorney Steven Seeger, and federal magistrate judge Mary Rowland, who would be Trump's first LGBT pick.

But Durbin, who's also a member of the Senate Judiciary Committee, said Thursday the White House did not tell him in advance the picks would be left off.

“I don't know what to make of it. We had an agreement with them, and we can move forward with it. I just don't know what the situation is,” Durbin said, pledging to “find out” what happened.

“I've not heard from them as to why they're holding them back,” Duckworth said. “But again all three of them were the White House picks. They got Dick and my support because they were recommended as well-qualified” by a review board.

The White House hasn't yet renominated Stephanie Gallagher, a federal magistrate judge whom the Trump administration nominated to a Maryland district court. Sen. Ben Cardin, D-Maryland, said he raised the issue with the White House, noting he believed she would eventually be renominated but was “extremely disappointed” she wasn't on Wednesday.

“They've assured me she's going to be in a batch, but I don't know why it wasn't in the first batch,” Cardin said. “I've been talking to a lot of people about this, so we're going to raise a fuss. She should have been.”

Also absent from the list was public defender Mary McElroy, a Rhode Island district court nominee. Democratic Sens. Jack Reed and Sheldon Whitehouse, in a joint statement, praised McElroy and said: “We expect she will be renominated and confirmed.”

Whitehouse, a member of the judiciary panel, summarized the Trump administration's move withholding certain nominations in a more colorful way Thursday: “More hostages,” he said.

The White House, which did not return requests for comment, is not required to resubmit all of its nominees in one wave, and could renominate the remaining picks whenever it chooses. But one former White House lawyer noted it is easier to resubmit nominations all at once, with the exception of when the Senate requires more paperwork to be submitted for certain nominees.

The  Heritage Foundation's John Malcolm, who has previously sent nomination recommendations to the White House, but claimed no insight on this batch, said the White House was probably considering whether to renominate the nominees, consulting home state senators and others.

“The White House is probably considering whether to renominate these people or not. And it's probably soliciting some input from the home state senators, or Republican senators who expressed skepticism of some of these nominees,” Malcolm said, noting, “I would not be surprised if some of these people ultimately end up getting renominated.”

But the White House also notably left off nominees from New York and California from this week's list. Sens. Dianne Feinstein and Kamala Harris, D-California, are “in discussions” with the White House on those nominations, according to a press secretary for Feinstein, a signal that the White House might not return all of their nominations to the Senate. Harris acknowledged those talks with the White House, but declined to discuss the details on Thursday since talks were ongoing.

The negotiations concern three lawyers previously nominated to the Ninth Circuit: federal prosecutor Patrick Bumatay, Munger, Tolles & Olson lawyer Daniel Collins, and Jenner & Block's Kenneth Lee. Feinstein and Harris both previously opposed the White House's decision to nominate them, arguing it had not sufficiently consulted the senators. The White House counsel at the time, Don McGahn, defended the process, but has since left and was replaced by new White House counsel Pat Cipollone. (The White House on Wednesday announced the renominations of two other Ninth Circuit nominees, Bridget Bade and Eric Miller.)

The White House and California senators are also negotiating three picks for the U.S. District Court for the Central District of California: Jeremy Rosen, Mark Scarsi and Stanley Blumenfeld, all of whom were left off Wednesday's list.

Excluded from Wednesday's list were seven district court nominees in New York, represented by Senate Minority Leader Chuck Schumer and Sen. Kirsten Gillibrand. The White House, however, did resubmit nominations for two Second Circuit and two other district court picks. Representatives for Schumer and Gillibrand did not return requests for comment.

The White House's list sloughed off a handful of other previously submitted nominees, including controversial picks such as Tom Farr, whose bid was vehemently opposed by civil rights groups, and Ryan Bounds, whose nomination came under fire over a set of undergraduate writings.

John O'Connor, who was previously up for an Oklahoma judgeship and received a “not qualified” rating from the ABA, was left off this week's list. Two lawyers who withdrew their nominations—former Federal Trade Commission acting chairwoman Maureen Ohlhausen, now at Baker Botts, and Anchorage-based lawyer Jon Katchen of Holland & Hart—were also absent from the announcement.

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