11th Circuit Nominee Gets Smooth Ride From Senate Panel

WASHINGTON (CN) – A former Georgia state solicitor general and current state Supreme Court judge told senators on Wednesday she is mindful of the difference between a judge and advocate and promised to make that transition fully if confirmed to the 11th Circuit.

“It’s not my decision about what the law should be, it’s my decision to determine what the law is, what the Constitution requires, what the statute requires and how those and other precedents come up with a result in a particular case ” Georgia Supreme Court Justice Britt Grant told the Senate Judiciary Committee Wednesday. “That’s what I do as a judge and I think it’s very important, as I’ve said, to understand that that’s our role and not a different role. If I wanted to make policy, then I should have run for the state assembly.”

Gov. Nathan Deal appointed Grant, who once worked in his congressional office, to the Georgia Supreme Court in 2017. A member of the conservative Federalist Society, Grant also worked in the Bush White House from 2001 to 2004 in various positions before attending law school at Stanford.

Most of the questions senators posed to Grant during a relatively smooth hearing on Wednesday involved her time as Georgia’s solicitor general, specifically focusing on briefs her office filed in several contentious cases before the U.S. Supreme Court.

Grant said she edited and reviewed a friend of the court brief Georgia filed in Shelby County v. Holder, the Supreme Court case that struck down provisions of the Voting Rights Act. She explained the state’s position was that requirements that certain districts receive federal clearance for changes to their election procedures was built on outdated data and was therefore unlawful.

Grant noted the Supreme Court ultimately agreed with Georgia’s position.

“It was the position of the state of Georgia, who was my client, that the law in place needed to reflect current conditions and current evidence rather than past evidence,” Grant said. “That was what the state of Georgia argued, that’s what the other states argued and eventually the United States Supreme Court agreed.”

Grant also faced questions from Sen. Amy Klobuchar, D-Minn.,  about a friend of the court brief Georgia joined in Obergefell v. Hodges, the landmark case that held there is a Constitutional right to same-sex marriage. Grant said she believes she reviewed the brief but could not remember if she edited it.

Nevertheless, Grant promised to uphold the decision if confirmed to the 11th Circuit, noting she worked with probate judges “immediately” after the Supreme Court’s holding to ensure Georgia was complying with the law.

“I view the precedent of the Supreme Court in that case as any other, which is that I will uphold it,” Grant said. “I already have, in fact.”

Grant also told senators she reviewed briefs in a case in which a death row inmate’s challenged his sentence based on racial profiling during jury selection. Georgia lost the case at the Supreme Court, which found unlawful the prosecution’s highlighting of black prospective jurors in case notes.

Grant was the first of three judicial nominees to testify on Wednesday, appearing just ahead of two nominees to federal district courts.

Oklahoma Supreme Court Justice Patrick Wyrick, who is up for a seat on the U.S. District Court for the Western District of Oklahoma, faced the strictest scrutiny from lawmakers on Wednesday, as Sen. Sheldon Whitehouse, D-R.I., delved into his time serving as Oklahoma’s solicitor general from 2011 to 2017.

Whitehouse pressed Wyrick, a Federalist Society member, on a rebuke he earned from Justice Sonia Sotomayor when arguing a death penalty appeal before the U.S. Supreme Court in 2015. During oral arguments in Glossip v. Gross, Sotomayor said she was “substantially disturbed” by several facts Wyrick presented in his brief that were contradicted by the sources he cited as support.

“So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes, the context, okay?” Sotomayor said, according to a transcript of the hearing.

Sotomayor objected to Wyrick’s argument that a drug Oklahoma used in its executions was approved as an anesthetic. The state’s brief quoted an FDA-approved label on the drug as support for this claim, but Sotomayor noted the quote left out a key part of the label that made it clear the drug could have anesthetic effects when combined with other drugs.

Whitehouse was exasperated  by Wyrick’s selective quoting of the drug label.

“I’ve argued in the Supreme Court, how on earth do you not check and re-check your citations to make sure that you are not making false statements to the Supreme Court?” Whitehouse asked.

Sotomayor also accused Wyrick during oral arguments of misrepresenting the findings of a scientific study about the drug, but Wyrick defended himself before the Judiciary Committee on Wednesday by saying Sotomayor was mistaken about the study’s findings.

“She was mistaken with respect to the particular scientific evidence that we had cited,” Wyrick said Wednesday. “Look, I certainly sympathize. That’s the purpose of argument, is to sort these things out. I think if you look at her written opinion in the case, and she certainly filed a passionate dissent, there’s no mention of those disputes about the evidence because I think upon close consideration the things we cited did support the conclusions we made in the brief.”

Whitehouse also grilled Wyrick on his involvement in a scandal in which Scott Pruitt, then Oklahoma’s attorney general, took a letter from lawyers for Oklahoma oil and gas company Devon Energy and sent it to the EPA on state letterhead with very limited changes.

Wyrick said he did not remember receiving the Devon email until he was reminded about it a few days before his hearing, but told Whitehouse the EPA ultimately agreed with the position Pruitt expressed in the letter. Whitehouse was not satisfied with the answer, however, expressing concern about Wyrick’s role in the scandal.

“I’m less concerned about the EPA position than about what it means when a staff member for the attorney general is coordinating directly with lobbyists to, as I use the phrase, shop out the seal of the State of Oklahoma to a donor,” Whitehouse said.

Judge Allen Winsor, who serves on the Florida First District Court of Appeal, also testified before the committee on Wednesday, though he faced limited questions from lawmakers. Winsor, a member of the Federalist Society, is nominated to a seat on the U.S. District Court for the Northern District of Florida.

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