The Justice Department’s top legal adviser may be headed for a lifetime seat on a federal court in Texas, in a process that began the day after the midterm elections and has moved faster than the normal route for judicial nominees.
T. Elliot Gaiser is the assistant attorney general who leads the Office of Legal Counsel, the office that gives the president and the executive branch their authoritative readings of the law. According to his Senate Judiciary Committee questionnaire, reported by Bloomberg Law, Senator Ted Cruz’s office contacted him about the Northern District of Texas vacancy on November 4, the day after the election. He spoke with Senator John Cornyn’s office on November 6, and the White House told him the same day that he was under consideration. The committee received his nomination paperwork on Sunday.
The White House has not announced a nomination. “We have no new judicial nominations to announce at this time,” a White House official said. “Elliot Gaiser is being actively considered.” That distinction matters: paperwork before the committee is not an appointment, and no hearing has been scheduled.
Gaiser, a former solicitor general of Ohio, clerked for Justice Samuel Alito at the Supreme Court and for Judge Edith Jones on the Fifth Circuit, the appeals court based in New Orleans whose territory includes Texas. At the Office of Legal Counsel he has written opinions that have expanded executive power under this administration, which is exactly the record that will draw questions if the nomination proceeds. His questionnaire also states that he has not personally tried a case to verdict.
Two features of the process are already drawing notice. Texas nominees usually pass through a state evaluation committee set up by the two Texas senators; reporting indicates Gaiser did not. And the timing is the lame duck window itself: the current Senate, which Republicans control until January 3, is the last one certain to be friendly to this White House’s nominees, which is why several sets of paperwork have reached the Judiciary Committee in recent weeks without announcements.
What happens next is procedural. If the White House formally nominates him, the committee would schedule a hearing, then a committee vote, then a vote of the full Senate. Each step is a public record, and we will follow the nomination at each of them.
Transparency note: This story is based on Bloomberg Law’s reporting of the committee aide’s account and of Gaiser’s questionnaire, and on Reuters reporting of the White House position. Criticism of the speed and of the skipped state process is reported as it has been raised; the nomination itself has not been announced.
