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Eleventh Circuit nominee Kidd gets partisan grilling in Senate Judiciary

Republican lawmakers cast aspersions on the current magistrate judge’s decision record and attempted to tie him to the conclusions of an academic paper he did not write.

WASHINGTON (CN) — It was business as usual for the Senate Judiciary Committee Wednesday as Republicans needled the White House’s pick to fill a vacancy on the 11th Circuit Court of Appeals.

Embry Kidd, a magistrate judge in the U.S. District Court for the Middle District of Florida, found himself under the congressional microscope just weeks after Senate Democrats celebrated the Biden administration’s 200th judicial confirmation.

Still, it wasn’t smooth sailing for this latest appointee, as some lawmakers attempted to pick apart his record and sought to tie him to what they framed as a controversial research paper penned by a law school classmate.

Utah Senator Mike Lee was first to grill the nominee about the paper, which was published in a 2008 edition of Northwestern University’s Journal of Criminal Law and Criminology and penned by Monica Bell.

Bell argued in her work that, although the Supreme Court has ruled it unconstitutional to use the death penalty for people convicted of rape, some states allow capital sentences for perpetrators of child rape because of “the popular movement to shame, fear and isolate sex offenders.” The author also contended that the preponderance of such sentences can also be attributed to “the feminist movement for harsher punishment of sexual and intra-familial violence” and “the legal and political movement to punish attacks against vulnerable victims with death.”

Lee connected Bell’s paper to Kidd’s nomination by pointing out that she had mentioned him in the report’s acknowledgements.

“She thanks you for conversations that shaped the article,” he told Kidd.

Tennessee Senator Marsha Blackburn said she also found the article concerning, incorrectly stating that Kidd “contributed to” the report.

The nominee’s name does appear once in the paper’s footnotes alongside several others who the author thanks for “conversations that shaped the article,” but he is not listed as a contributor or author.

Kidd replied that he did not recall making any statements about state child rape laws and that he did not share the views expressed in Bell’s paper.

“I’m certain we had conversations, generally, in law school,” Kidd said of the author, “but I certainly do not recall any conversations about rape laws.”

Kidd acknowledged that he was mentioned in the article’s footnotes but clarified that he hadn’t written anything in the article and that he didn’t adopt any of the statements made in the report.

“Frankly,” he said, “it’s been so long that I don’t even know what the article is about.”

The nominee added that, if confirmed, he would “follow any laws that are in place with regard to rape or whatever the issue happens to be.”

Lee further pressed the appellate nominee on Bell’s paper, demanding he answer for her argument that courts should evaluate social forces surrounding the enactment and constitutionality of certain legislation.

“I do not agree with that statement as a sitting judge,” said Kidd, “and if confirmed to the Eleventh Circuit I would follow the law and uphold the Supreme Court precedent, the circuit precedent. It’s not my job as a judge to assess societal forces — that’s left to policymakers.”

Blackburn also needled Kidd on a 2019 order in which he released an illegal immigrant from federal custody pending trial. The judge reasoned at the time, among other things, that the defendant had not committed a crime in roughly nine years of residency in the U.S. — despite the fact that he was an unlawful resident who had previously been deported.

Kidd authorized the release in conjunction with a “location monitoring requirement.”

The nominee explained Wednesday that, while he did not remember the specifics of the 2019 case, it was “pretty rare that release is granted” in cases involving someone who had reentered the country illegally. He pointed out that house arrest is a likely condition of such a release.

“Kidd is a well-qualified, mainstream, very experienced lawyer and jurist,” said Carl Tobias, chair of the University of Richmond School of Law. The nominee is “diverse in terms of ethnicity, ideology, and experience and has measured temperament,” he added, “attributes that were on full display in the hearing.”

Referring to Kidd as “the Eleventh Circuit nominee from central casting,” Tobias pointed to his wealth of judicial experience, including time spent as an assistant U.S. attorney and magistrate judge. The American Bar Association has also ranked Kidd as unanimously well-qualified, the organization’s best possible rating.

“In sum, Kidd had a very successful hearing,” Tobias said, “and he should enjoy bipartisan support in the [Judiciary Committee] and in the confirmation vote.”

Meanwhile, the Judiciary Committee also heard testimony from three other White House nominees for federal district courts, including Joseph Saporito, nominated to the Middle District of Pennsylvania, Adam Abelson, tapped for the District of Maryland, and Meredith Vacca, selected by the Biden administration to fill a vacancy on the Western District of New York.

All three district court nominees enjoyed the support of their home state senators.

Follow @BenjaminSWeiss
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