Fifth Circuit Nominee Pressed on Rulings Against Women Plaintiffs

“You did [look to comparisons in the workplace.] In this case, she had to show she was treated worse than a non-pregnant employee and when she was fired for taking 16 weeks to protect the life of her child, you pointed out a that a male colleague was granted [leave] for stubbing his toe but wasn’t fired. You determined she was not treated any worse than he was,” Harris said.

Engelhardt apologized for being unable to explain the ruling.

He was also unable to explain a 2011 decision in which he found “sensual backrubs” performed on a female employee by her female supervisor did not constitute “actionable harassment.”

Echoing Hirono, Harris asked Engelhardt to share his definition of allegations that would be egregious enough to be considered a physical threat.

“Most are close cases … You think, ‘this is horrible conduct’ but insofar as that particular opinion … Things that are unacceptable in the workplace don’t always survive the test set forth in Title VII of the Civil Rights Act,” he said.

How did he generally define what is physically threatening, Harris asked.

“We try to establish a spectrum of cases where certain conduct is cataloged in terms of how it becomes actionable. We don’t decide these cases in a vacuum,” he replied.

Sen. Richard Blumenthal, D-Conn., focused on a speech Engelhardt gave to the Federalist Society in 2010.

During the speech, Engelhardt referred to Supreme Court Justice Clarence Thomas’ dissent in Lawrence v. Texas, a ruling that struck down the state’s sodomy laws.

“You praised [his dissent] as an example of ‘one man’s submission of personal preference in favor of adherence to constitutional principle,’ and as you know, [Thomas] dissented ... in that case because he believed the court had no constitutional power to strike down the Texas law. What did you mean [by your praise]?” Blumenthal asked.

Engelhardt said it wasn’t praising Thomas, but instead was using the dissent as a way to speak about the separation of powers.

“[I was speaking to] his personal feelings and [how it] would have to be submitted to the constitutional principle but that it wasn’t up to him,” Engelhardt said.

When it came to Roe v. Wade, Engelhardt assured the committee he would respect the laws handed down by the Supreme Court.

“I think those opinions are controlling opinions; Roe, and their progeny, are controlling, binding precedent. I, as a district judge taken an oath to apply them, they are the law. I will fulfill my oath as a circuit judge as I have done a district judge,” he said.

In addition to Engelhardt, the committee also considered the judicial nominations of Barry Ashe, Howard Nielson Jr. and James Sweeney II.

Senators posed few questions to Sweeney, nominated as judge for the Southern District of Indiana, and far fewer to Ashe, the president’s pick to fill a vacancy in the Eastern District of Louisiana.

But Nielsen stayed in lawmakers focus, particularly, Democratic senators who homed in on his 2010 defense of Proposition 8, a California ballot initiative which only recognized a "marriage" as being between a man and woman.

In a case he handled, Nielson purportedly argued homosexuality was a choice and said presiding Judge Vaughn Walker should have recused himself from ruling on the matter because he had a vested interest: Walker was gay and in a long-term relationship.

Sen. Amy Klobuchar, D-.Minn. , said she was troubled by this history.

“Would it follow that an African-American judge would have to recuse himself from a civil rights case or a female judge from a sexual harassment case?” Klobuchar asked.

Nielson told the senator no one needs to recuse themselves because of their status. Rather it should be determined on a case-by-case basis.

“The positions I take in litigation are those of my clients and in this case I was a junior member of a legal team and ultimately, they made the call of what argument was to be made in consultation with the client. This argument was within the fair bounds of advocacy,” Nielsen said.

Senate Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, dismissed Klobuchar’s questioning and defended Nielsen.

“Your opponents use this familiar tactic, claiming arguments you’ve made will bias you as a judge," Hatch said. "I reject this tactic which is largely driven by a dangerous political view of the judiciary: the view [that what a] lawyer expresses in litigation belongs to him, not his clients.”

He added: “Those claiming it was suggested [in the documents] that [Judge Walker] be disqualified because he was gay – the motion did not seek that.”

Sen. Blumenthal told Nielsen that he, a former attorney, accepted that lawyers do not always share their client’s beliefs and are sometimes forced to argue issues they disagree with.

“But we do choose our clients and the arguments we make on behalf of them,” he said.

Blumenthal asked Nielsen if he agreed with then-candidate Donald Trump’s assertion during the 2016 campaign that Judge Gonzalo Curiel, of Mexican descent, would be unable to render a fair decision in a case involving Trump because he made public remarks about Mexicans.

“The law is clear that no one needs to recuse themselves because of their status,” Nielsen said.  “In Walker’s case, there were other factors involved … he had been in a committed long-term relationship for 10 years and had not disclosed whether he intended to benefit personally.

"That’s the position of my clients but I did feel it was within the fair bounds of advocacy.  Legal ethics expert Jack Marshall agreed with that, even though he strongly agreed that Proposition 8 is unconstitutional,” Nielsen said.

Neilsen, a partner at Cooper & Kirk in Washington, also rejected Sen. Harris’ declaration that he personally argued homosexuality was a choice. The transcripts showed Nielsen suggesting homosexuality is a “maladjustment.”

But this is not his view today, he said.

“Sexual orientation is not a matter of choice. I was representing the view of clients and that quote was from cross-examination and from a study read into evidence from a psychologist who the plaintiff’s expert said had a reputation in good standing,” Nielsen said.

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