WASHINGTON (CN) — As Illinois Senator Dick Durbin gave opening remarks Wednesday during a hearing in the Senate Judiciary Committee, he was flanked on the dais by an empty seat draped with a black shroud and adorned with a vase of flowers — a place that belonged to the late Senator Dianne Feinstein.
“It is a bit unreal to begin these proceedings and to know that our dear friend will not be joining us at the dais,” Durbin said.
The long-serving California congresswoman died Sunday night at age 90. She was one of the most senior members of the Senate’s judiciary panel, tasked with approving the White House’s nominees to federal courts and other judicial services.
Lawmakers on both sides of the aisle offered their thoughts Wednesday about Feinstein’s absence.
“I think all of us on this side have the same view of Senator Feinstein as you do,” said South Carolina Republican Lindsey Graham, the panel’s ranking member. “She was a consequential senator and an incredibly kind, decent person who was passionate about our causes, but you could always find common ground if you sought it with Dianne.”
Oregon Democrat Ron Wyden recalled Feinstein as a force for bipartisan consensus. “That was part of the beauty of Dianne Feinstein,” he said, “always bringing people together.”
And Durbin added: “Dianne conducted herself with steely determination, grace and dignity in all of her work before this body, and I hope we will all try to honor her by measuring up to that high standard."
Indeed, the judiciary committee had its work cut out for it Wednesday morning, as lawmakers sparred over the Biden administration’s latest batch of judicial nominees, including one jurist who Republicans seemed determined to paint as biased — suggesting that his record and past statements betray him as a left-wing activist.
The nominee in question was Mustafa Kasubhai, tapped by the White House to fill a vacancy in the District of Oregon, where he is currently a magistrate judge.
Seeking to poke holes in his decision record, Republicans pointed in particular to a May ruling in which Kasubhai concluded that a city-wide curfew enacted in Eugene, Oregon, during the George Floyd protests of 2020 was unconstitutional.
Lawmakers argued that judicial precedent set in a similar case before the Ninth Circuit established that such curfews were legal. Graham called Kasubhai’s ruling “legal gymnastics.”
“There are special exceptions that occur where riot control measures are necessary due to an outbreak of coordinated, overt violence,” said Utah Senator Mike Lee, arguing that civil unrest in Eugene during the protests warranted such restrictions.
Kasubhai explained that his ruling only refuted the legality of a city-wide curfew, arguing that the measure “could have criminalized people’s behavior for just trying to get home, well outside any of the riots and the protests.”
A separate, localized curfew that enveloped the epicenter of Eugene’s civil unrest was not in the scope of his analysis, Kasubhai said, and he did not find the smaller measure to be unconstitutional.
Meanwhile, Republicans pressed Kasubhai on an array of social issues, among other things casting aspersions on a court guide he created that provided the bench with details on how to properly acknowledge an individual’s preferred pronouns or honorifics.
Kasubhai told lawmakers that the guide was a suggestion, not a mandate, and that his aim was to “ensure access to the courts so that everybody who comes before the court can be acknowledged and identified in dignified ways.”
Multiple Republican lawmakers also appeared to misinterpret comments Kasubhai made in an article published in the February 2021 edition of the Oregon State Bar Bulletin, in which the jurist shares the challenges he faced as a Muslim-American lawyer and judge.
In the article, Kasubhai argued that lawyers must “set aside conventional ideas of proof when we are dealing with the personal and interpersonal work of equity, diversity and inclusion.” The jurist explained that lawyers are used to demanding proof and said that such reflexes hamper the ability to have personal conversations about discrimination.
“I’d ask anyone whose first response is to doubt that racism is real to consider that disbelief comes from a place of privilege and the luxury of not having to chronically suffer the diminishment of one’s identity,” Kasubhai continued. “I’d ask that person to acknowledge the vulnerability of anyone willing to share a discriminating experience, and then accept the disclosure as true.”
Committee Republicans, meanwhile, framed Kasubhai’s comments as a statement on his values as a jurist.
“So, all issues have one set of proof, which has been handed down by our state supreme courts or U.S. Supreme Court,” said Louisiana Senator John Kennedy, “except you think we ought to have a different set of proof when equity, diversity and inclusion are issues?”
Kasubhai tried to set the record straight. “What I was referring to was the idea of sitting down and talking with a friend from a different background,” he told lawmakers. “Oftentimes, lawyers can be accused of always trying a case, no matter who they might be talking to.”
Kennedy, for his part, did not seem convinced, overstepping his allotted questioning time to push Kasubhai.
“You seem to be obsessed with race and sexuality,” he said. “You even go so far as to say that when race and sexuality or diversity and inclusion are an issue, we need a separate standard of proof in the United States. How are defendants going to be able to trust you?”
Kasubhai pointed to his decision record, arguing that the rule of law is “absolute.”
“In ruling the cases of people that have appeared in front of me from all backgrounds and all faiths, you’ll find that I have upheld the rule of law and upheld the precedent of our Constitution,” he said.
While Kasubhai absorbed the majority of committee Republicans’ flak Wednesday, the panel also considered several other White House judicial nominees, including John Kazen, nominated to the Southern District of Texas and Jamel Semper, nominated to the District of New Jersey. The committee also questioned two District of Hawaii appointees, Shanlyn Park and Micah Smith.
Carl Tobias, chair of the University of Richmond School of Law, said that the nominees were “very experienced and have engages in much valuable public service work.” The focus on Kasubhai, he predicted, means that the other four Biden administration picks should easily clear the judiciary committee.
Tobias observed that many of Kasubhai’s works cited by Republicans were decades old, crafted “when he was testing ideas as a law student.” He praised the nominee’s handling of the GOP grilling, saying that Kasubhai “clearly and repeatedly explained” that the issues raised would not affect his decisionmaking.
The Senate’s judiciary panel is slowly working its way through a backlog of judicial appointments. Committee chair Durbin has urged his Republican colleagues to work with Democrats and the White House to advance as many nominees as possible with bipartisan support.
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