Advancing Eight Nominees, Senators Keep Focus on Reshaping Courts

Most of the nominees approved by a Senate panel would fill seats on lower-profile courts.

The U.S. Capitol building in Washington. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The Senate Judiciary Committee approved eight of President Donald Trump’s judicial nominees on Thursday, setting up confirmation votes before the full Senate.

The votes are the first the committee has held since the Senate returned to Washington last week after a lengthy recess due to the coronavirus pandemic. Senators and staffers arrived to the meeting wearing masks and the proceedings were held in a room much larger than the Judiciary Committee’s regular space.

Some senators sat behind a permanent wooden dais, while others sat at temporary tables arranged in a horseshoe in the middle of the room to maintain social distancing.

Most of the nominees voted out of the committee on Thursday are up for seats on lower-profile courts that generally do not spark the most contentious nomination fights in the Senate, but several drew opposition from Democrats and went through on party-line votes.

Stephen Schwartz is nominated to the Court of Federal Claims, a specialty court that hears lawsuits raising monetary claims against the federal government. Many of its cases involve disputes over the federal government’s award of contracts, and it also hears tax refund and property cases.

The court has a low public profile, but Democrats have opposed Schwartz for cases he took on as an attorney, particularly two related to voting and transgender rights.

While a partner at the firm Schaerr Duncan, Schwartz helped draft a brief  at the Supreme Court on behalf of a school board opposing a transgender teenager who sought to use the boys’ bathroom at his school. Schwartz also defended a North Carolina voter identification law before the Supreme Court after the Fourth Circuit found it targeted “African Americans with almost surgical precision.”

Defending his legal experience, Schwartz told the committee he has backed a “diversity of interests,” from high-profile constitutional cases to a dispute over the federal regulation of raisins to less political commercial litigation.

“Generally speaking, I believe that my legal career has been marked not by efforts to court political controversy, but by consistent contact with complex and unsettled legal issues across a wide range of constitutional and statutory fields,” Schwartz wrote in response to questions submitted after his nomination hearing. “I believe that my own work has been characterized not only by integrity and careful legal reasoning, but by objectivity and fairness.”

Schwartz, who was first nominated to the seat in 2017, also faced opposition from Democrats over articles he wrote while an undergraduate student at Yale that argued for the elimination of Social Security and some federal agencies.

“His views on the social safety net were problematic when he first expressed them, but they’re even more problematic now in the midst of a global pandemic that has already taken the lives of more than 80,000 Americans,” Senator Dianne Feinstein, the top Democrat on the committee, said at the meeting Thursday.

After graduating from the University of Chicago Law School, Schwartz clerked for U.S. Circuit Judge Jerry Smith on the Fifth Circuit. He then went on to be an associate at the Washington, D.C., firm Kirkland & Ellis before joining the right-leaning Cause of Action Institute in 2015.

Schwartz cleared the committee with a 12-10 vote that fell along party lines. 

The Howard T. Markey National Courts Building, home of the U.S. Court of Federal Claims. (Photo via AgnosticPreachersKid/Wikipedia Commons

Joining Schwartz on the Court of Federal Claims after passing through the committee on a party-line vote will be Kathryn Davis. Davis has been an attorney with the federal programs branch of the Justice Department’s Civil Division since 2008 and is also a lecturer at George Washington University Law School.

Davis has never practiced before the Court of Federal Claims, but told the committee her time with the Justice Department has given her “firsthand experience” with many of the unique legal issues that arise during litigation involving the federal government.

Also approved along party lines was David Joseph, who is nominated to the U.S. District Court for the Western District of Louisiana. Joseph has served as the U.S. attorney for the Western District of Louisiana since 2018 and worked as a federal prosecutor in the office beginning in 2014.

Joseph began his career as an attorney in the U.S. Army before joining the Dallas firm Fullbright & Jaworski in 2008.

Feinstein said she could not support Joseph due to comments he made in a 2019 speech that appeared skeptical of giving a path to citizenship to people living in the country illegally. In response to questions about the comments, Joseph said “supremacy of the rule of law is a bedrock principle in our country,” but that he did not mean to suggest his opposition to any specific immigration policy with the remarks.

Drew Tipton, who is nominated to the U.S. District Court for the Southern District of Texas, and John Cronan, up for a seat on the U.S. District Court for the Southern District of New York, also received party-line approval.

Tipton would fill the only remaining vacancy on a federal court in Texas if confirmed and has spent two decades as an attorney with the Houston firm Baker Hostetler. Democrats opposed to his nomination pressed him on his work representing companies accused of sexual harassment and other workplace misconduct.

Cronan has worked at the Justice Department’s Criminal Division since 2017, and served as a federal prosecutor in both the civil and criminal divisions of the Southern District of New York for more than a decade prior to taking his job in Washington.  

A former clerk for Judge Robert Katzmann on the Second Circuit and Judge Barrington Parker Jr., on the Second Circuit and the U.S. District Court for the Southern District of New York, Cronan faced opposition from committee Democrats in part over a law review article he published in 2001 that questioned race-based affirmative action policies.

Defending the law review article, Cronan said he was not suggesting the United States had defeated racial discrimination, but that factors other than race could be relevant in achieving the goals of affirmative action.

“My point was that the progress American society has made on racial issues has rendered a purely race-based system of preferences less desirable and counseled in favor of a system that considers both race and non-racial factors that indicate whether an applicant faced a disadvantaged past and would contribute to the diversity of the institution,” Cronan wrote in response to questions submitted in writing.

U.S. Attorney Thomas Cullen speaks during a 2018 news conference in Charlottesville, Va. (Zack Wajsgras/The Daily Progress via AP)

Thomas Cullen, who is nominated to a seat on the U.S. District Court for the Western District of Virginia, received bipartisan support from the committee after making a name for himself prosecuting white nationalists as a U.S. attorney.

Cullen prosecuted James Fields Jr., a white supremacist who killed counterprotester Heather Heyer during the Unite the Right rally in Charlottesville, Va., in August 2017. The rally drew white supremacists and neo-Nazis protesting the removal of a Confederate statue and quickly turned violent, culminating in Fields ramming his car into a crowd of counterprotestors, killing Heyer.

Cullen’s office also took on members of the white supremacist group Rise Above Movement and he spoke passionately about his work leading the prosecutions during his nomination hearing earlier this year.

“There is no question of all the cases I have been fortunate enough to work on in my career that this was the most rewarding, and for a lot of reasons, the most important,” Cullen told the committee at his nomination hearing in March.  

Cullen passed through on a 17-5 vote.

The committee also approved longtime Nevada state court judge Jennifer Togliatti, who is up for a seat on U.S. District Court for the District of Nevada. Togliatti had the rare experience among Trump nominees of receiving more support from Democrats than from Republicans as she passed through the committee on a 15-7 vote.

U.S. District Court for the Western District of Pennsylvania nominee William Hardy also cleared the committee 14-8. Hardy has been with the Pittsburgh, Pa., firm Ogletree, Deakins, Nash, Smoak & Stewart since 2010 and spent more than a decade before that at the firm Cohen & Grigsby.

All of the nominees now must face confirmation votes before the full Senate.

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