President Donald Trump is considering U.S. Attorney Thomas Cullen for a vacant federal judgeship based in Roanoke.
Virginia Sens. Mark Warner and Tim Kaine said in a Friday statement that they have communicated with Cullen, but they left unclear whether they would recommend him to join the short-handed Roanoke bench.
The statement from the Democratic senators said they were “disappointed that the White House is not moving forward” to nominate either U.S. Magistrate Judge Robert Ballou or Scott County Circuit Court Judge John Kilgore, the top two recommendations the senators furnished after what they called an extensive vetting process last year.
The judgeship has been vacant nearly 21 months, but federal officials assisting in the nominee search were conducting interviews into Cullen’s background last month, according to sources in the legal community.
Cullen said Friday that he was focused on being U.S. attorney, calling it “the highlight of my career,” and that he had no other comment.
Presidents almost always pick judicial nominees from the recommendations of a judgeship’s home-state senators. It’s not clear what led officials to consider Cullen, although he’s familiar to the White House, having garnered Trump’s nomination to become the top federal prosecutor for the Western District of Virginia in February 2018. Cullen was one of two people recommended for that job by Kaine and Warner.
U.S. attorney is a stepping stone to the federal bench that others have followed. Before ascending to his current post, Cullen, who’s in his early 40s, worked seven years as an assistant federal prosecutor and five years in private practice.
He also has strong Republican connections: His father is Richard Cullen, a former chairman of the Richmond-based law firm McGuireWoods, a former U.S. attorney and a former Virginia attorney general. The elder Cullen was named in 2017 to assist Vice President Mike Pence during the federal probe of Russian election meddling.
The idea of Cullen becoming a judge — a lifetime appointment — struck some legal observers as an exciting possibility.
“Thomas Cullen is a person of real character and would be a real credit to the bench,” said Timothy Heaphy, a former U.S. attorney for the Western District.
In Cullen’s 17 months in office, federal prosecutions have been launched against members of alleged gangs in Roanoke and Danville, white supremacists and people with criminal backgrounds suspected of being in the U.S. illegally.
His recent performance was marred by a scolding from U.S. District Court Judge James Jones in Abingdon. Jones said in an August ruling that Cullen committed a “serious error in judgment” by having a half-dozen Virginia State Police officers removed from the gallery during the trial of a state police special agent in March.
The judgeship opened in December 2017, when U.S. District Court Judge Glen Conrad declared himself on senior status after 41 years as a judge. Senior status, which allows a judge to work part time, triggers a process to find a new judge. Although Conrad has kept working, his post, one of four district judgeships, is considered vacant.
“The obvious effect is our judges are much busier, they’re having to take more cases,” said Julie Dudley, the clerk of federal court for the district.
By the time Kaine and Warner called for applicants to succeed Conrad, Cullen was well underway to becoming U.S. attorney.
During the nine months since the senators sent the names of Ballou and Kilgore to Washington, the White House has nominated numerous people for judgeships in other federal judicial districts, but no one for the Western District of Virginia post.
Kilgore said Friday he’d recently communicated with the office of the White House counsel and learned “that they were probably going in a different direction. But that’s always subject to change, so I would hope I would still be under consideration should another vacancy come up or should something change with this one.”
Ballou did not respond to a request for comment.
Trump’s nominee would need Senate confirmation to get the job.
In Friday’s joint statement, the offices of Kaine and Warner said: “Our offices have been in communication with Thomas Cullen to collect some basic information, but the Senators have not met with Mr. Cullen. The Senators only make recommendations for judicial vacancies after an extensive review process — which Mr. Cullen would have to undergo. The Senators take their responsibility on judicial nominees very seriously and are working to ensure that there is a qualified nominee for this vacancy.”
Carl Tobias, a professor at the University of Richmond School of Law, said he interpreted the senators’ statement to mean they want Cullen vetted by the same process faced by Ballou, Kilgore and at least six others who applied, and that only if the results favored Cullen would he receive their recommendation.
That process drew input from the State Bar of Virginia and numerous other statewide legal associations. At its close, the state bar said Kilgore, a state judge for 16 years, received 12 “highly qualified” votes from a 12-attorney panel, the highest marks of any candidate. The panel deemed five other candidates, including Ballou, a magistrate judge for eight years, to be highly qualified, though by lesser margins.
“It’s a fair assumption if the senators don’t have the process they want, they will not return the blue slips,” Tobias said, referring to a custom of deference to senators from the state where a judicial nominee lives.
Under the blue slip process, once a president nominates a person for a federal judgeship, the chairman of the Senate Judiciary Committee issues blue slips to the nominee’s two home-state senators.
If both senators return their blue slips, the committee considers the nomination for possible approval and advancement to the full Senate. If either senator withholds the blue slip, the nominee isn’t considered.
Sen. Lindsey Graham, R-South Carolina, who chairs the Judiciary Committee, has said in the past that he will respect the blue slip custom, Tobias said.
Tobias said the process could “go awry” if Trump nominates Cullen without both Kaine and Warner on board.
“I don’t think the senators are going to back off.”