Grassley Holds ‘Monster Markup’ for 17 Judicial Nominees

Sen. Chuck Grassley, Iowa Republican and chairman of the Senate Judiciary Committee. (Associated Press)

WASHINGTON (CN) – The Senate Judiciary Committee approved seven new judicial nominees on Thursday, including three of President Donald Trump’s picks for federal appeals courts.

Progressive groups referred to Thursday’s meeting as the “Monster Markup” because the panel was voting on 17 judicial nominees, as well as six nominees to executive branch positions. The committee cleared 10 of the judicial nominees last year and only needed to re-vote because rules require the Senate to return to the White House nominees not confirmed before the end-of-year Congressional recess.

Trump re-nominated most of the nominees the Senate was not able to confirm before the break, but the Judiciary Committee needed to re-vote on their nominations to send them back to the Senate floor, where they will receive a confirmation vote.

The committee re-approved all 10 judicial nominees who were up for consideration for the second time, as it did for the seven it had not previously considered. Counting only the judges who were before the committee for the first time, the committee has on two separate occasions during the Trump administration approved more nominees than it did on Thursday.

Among the newly approved nominees was 5th Circuit nominee Kyle Duncan, who was the lead attorney in Hobby Lobby’s successful challenge to the federal health care law’s birth control mandate. Duncan was the general counsel for The Becket Fund for Religious Liberty from 2012 to 2014, and faced numerous questions during the nominations process on his work on the highly contentious Supreme Court case.

“I suspect that you’re here because of your consistent advocacy for laws that ban same-sex marriage, limit transgender rights, allow religious organizations to deny contraceptive coverage to their employees,” Sen. Pat Leahy, D-Vt., said during Duncan’s nomination hearing in November.

A member of the conservative Federalist Society, Duncan also served as the attorney for a Virginia school board that sought to block a transgender high schooler from using the bathroom of his choice and defended the North Carolina General Assembly from a challenge to HB2, a controversial state law that eliminated anti-discrimination rules for LGBT people and prevented transgender people from using the bathroom of their choice in government buildings.

Duncan also faced questions about an article he wrote critical of Obergefell v. Hodges, the 2015 Supreme Court decision that found the 14th Amendment guarantees a fundamental right to marriage.

In answers to written questions submitted after his nomination hearing, Duncan explained to Sen. Dianne Feinstein, D-Calif., the point of his article was to argue the court could have “done more to defuse the strong feelings on both sides” of the gay marriage issue.

“In the referenced article, I discussed the value of civic peace in terms of fostering mutual respect for both sides in any sensitive public debate,” Duncan wrote to Feinstein. “I expressed concern that such civility could be diminished by dismissing one side’s view in a harsh manner, as in my view certain pre-Obergefell lower court opinions appeared to do.”

Duncan told senators during his nomination hearing that despite claims about his record, he has advocated for multiple different religious groups in court, including in a case that successfully challenged the Florida prison system’s denial of kosher meals to Jewish prisoners.

“That means that I can see both sides of the issue, that balance that we’re talking about,” Duncan said at his nomination hearing. “What makes the right answer in those cases is the law, not the fact that somebody may have a religious belief.”

But his explanations did little to calm Democrats’ concerns about his record in the courtroom and in public statements, leading all committee Democrats to vote against him on Thursday. Still, all Republicans supported Duncan’s nomination, sending him to the full Senate with an 11-10 party-line vote.

The other two circuit court nominees received less opposition from Democrats at Thursday’s committee vote.

Only Sens. Kamala Harris, D-Calif., and Cory Booker, D-N.J., both recent additions to the Judiciary Committee, opposed Judge Elizabeth Branch, a Georgia Court of Appeals judge who is up for a seat on the 11th Circuit.

Branch faced questions during her confirmation process about a speech she gave to her local bar association in which she said she continues to “struggle with the application and predictability” of court rulings on substantive due process.

Branch explained the point of her speech was to comment that it can be hard to predict a court’s ruling when substantive due process, which is gleaned from the due process clauses of the 14th and 5th Amendments, is at issue. She said the topic was one the American Bar Association chose for Law Day activities, and insisted her trouble with predicting these cases would not impact her on the bench.

“That’s the only issue I was raising, is that it’s hard to predict, as new cases come along, what the Supreme Court may do,” Branch said during her hearing in December. “But that doesn’t really matter, whether or not I can predict what a future case will be, I am bound by the Supreme Court precedent in this area.”

A self-described “textualist and originalist” and member of the Federalist Society, Branch cleared the Judiciary Committee on a bipartisan 19-2 vote.

The final circuit court nominee the committee considered on Thursday was Judge David Stras, who is up for a seat on the 8th Circuit. Most of the opposition to Stras, who is currently a justice on the Minnesota Supreme Court, came from former Sen. Al Franken, a Minnesota Democrat who held up Stras’ nomination using the blue slip tradition.

The blue slip has traditionally prevented judicial nominees from receiving a hearing if both senators from the nominee’s home state do not sign off. Though Sen. Amy Klobuchar, D-Minn., returned her blue slip, Franken did not, but Sen. Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, went forward with the nomination nonetheless.

Franken left the Senate earlier this month after multiple women accused him of sexual harassment, but Sen. Tina Smith, Franken’s replacement, did not get a chance to submit her blue slip on Stras, Sen. Dianne Feinstein, the committee’s top Democrat, said on Thursday.

Leahy, himself a former chairman of the Judiciary Committee, said he would not vote for any nominee whose senator did not have the chance to submit a blue slip.

“When I was here, I would have made sure a new senator had that chance,” Leahy said Thursday. “It’s a fundamental step in our committee’s evaluation of nominees.”

But Klobuchar  told the committee on Thursday that Smith had not requested to return a blue slip and instead met with Stras last week in anticipation of a vote on his nomination before the full Senate. Klobuchar voted for Stras, saying the judge’s record shows he will be fair and even-handed on the bench. Sen. Sheldon Whitehouse, D-R.I., was the only other Democrat to join Klobuchar in supporting Stras’ nomination.

“I want to be clear that he would not be my first choice for this job, there were others that I had worked with over the years and knew that I would have suggested for this job,” Klobuchar said Thursday. “But morally, when I look at this and have to answer the question is he qualified, could he serve on the 8th Circuit, I have to say yes. I do not see the kind of hot button political controversial writings or work that I see in many of these nominees that I have opposed.”

In addition to the three circuit court nominees, the committee also approved four new nominees for federal district courts.

Among the most controversial of those nominees was Matthew Kacsmaryk, who is up for a seat on the U.S. District Court for the Northern District of Texas and currently serves as deputy general counsel at the First Liberty Institute, a legal group that takes religious liberty cases.

While with the group, Kacsmaryk filed a friend of the court brief in Obergefell v. Hodges that warned the high court that finding a constitutional right to same-sex marriage could be a “road to potential tyranny.” Kacsmaryk told the committee at his nomination hearing in December he wrote the brief as a reminder to the justices to consider the rights of the religious groups he represented.

“We noted to the court the importance of protecting religious dissenters in the event that the court recognizes a constitutional right to same-sex marriage,” Kacsmaryk said at his hearing.

Kacsmaryk also represented a couple who ran an Oregon bakery and refused to bake a cake for a gay wedding and, like Duncan, worked on several cases challenging the Patient Protection and Affordable Care Act’s contraceptive mandate.

Senators expressed concerns about Kacsmaryk’s record in the courtroom, saying it would be difficult for LGBT litigants to believe they had a fair shot before him as a judge.

“Very hard for me to believe that he is capable of leaving his advocacy in the robeing room and not taking it onto the bench,” Whitehouse said Thursday.

Despite the concerns of Democrats, all Republicans voted for Kacsmaryk, sending him to the full Senate on an 11-10 vote.

The committee also approved the nomination of Charles Goodwin, who was rated not qualified by the American Bar Association to serve on the U.S. District Court for the Western District of Oklahoma

While a minority of the ABA’s Standing Committee on the Federal Judiciary found Goodwin qualified, the majority determined otherwise. Sen. Chris Coons, D-Del., said at Goodwin’s nomination hearing in December that the ABA found Goodwin, who currently works as a magistrate judge in the same court to which he is nominated, often does not arrive at the courthouse until “mid-afternoon.”

Goodwin explained that he often works from home on mornings when he does not have any court hearings.

“On days that I just do work on the writing, I find it extremely beneficial to work from home, to be able to focus in solitude on the writing,” Goodwin said at his hearing.

Republicans have called into question the ABA’s ratings of judicial nominees after the group rated Steven Grasz, Trump’s nominee to the 8th Circuit, not qualified. All 11 Republicans on the Judiciary Committee voted for Goodwin and were joined by four Democrats in a 15-6 vote approving his nomination.

The committee also approved Eli Richardson, whom Trump nominated to a seat on the U.S. District Court for the Middle District of Tennessee, and Stan Baker, who is up for a seat on the U.S. District Court for the Southern District of Georgia.

The most controversial of the nominees the committee approved for the second time on Thursday was Thomas Farr, a nominee for the U.S. District Court for the Eastern District of North Carolina who once defended changes to the state’s voting laws that the Fourth Circuit found targeted  African American voters with “almost surgical precision.”

Members of the Congressional Black Caucus attended the Judiciary Committee’s meeting on Thursday, as the group has vocally opposed Farr’s nomination. The group sent a letter to the Judiciary Committee noting that during the Obama administration Sen. Richard Burr, R-N.C., blocked two black women from taking the seat Farr will likely fill.

“It is no exaggeration to say that had the White House deliberately sought to identify an attorney in North Carolina with a more hostile record on African American voting rights and workers’ rights than Thomas Farr, it could hardly have done so,” the Congressional Black Caucus letter read.

Harris and Booker, who were not on the committee when Farr had his nomination hearing, asked Grassley on Thursday to hold a new nomination hearing for Farr so they could ask him additional questions. The new members of the committee specifically wanted to press Farr on his involvement in postcards former Republican Sen. Jesse Helms sent to black voters in 1990 threatening them with false information about punishments for voter fraud.

Farr told the Judiciary Committee he did not play a role in creating the cards, but a former Justice Department official told Indy Week in November that Farr had knowledge of the mailings before they went out. Farr denied the allegations in a letter to Booker in December, but Booker nevertheless asked for a chance to question the nominee in person.

Grassley denied the senators’ request, saying a second nomination hearing would be highly unusual.

“There have been numerous opportunities for all committee members to question Mr. Farr, and I’m sorry to say that I disagree with the need for a second hearing because I think he has been candid and truthful,” Grassley said Thursday.

Trump’s choice to lead the Justice Department’s Criminal Division also received strong opposition from Democrats ahead of his second vote in the committee, mainly because of his work representing a Russian bank with close ties to Russian President Vladimir Putin.

Brian Benczkowski told the Judiciary Committee that his partner at the firm Kirkland and Ellis asked him to help represent Alfa Bank after Benczkowski returned from working on Trump’s Justice Department landing team.

Alfa Bank’s leaders are close with Putin and there have been allegations that the bank had connections to the Trump campaign following reports of communications between a Trump Organization server and the bank.

Cyber experts have said the communications appear to have been innocent and the New York Times reported the FBI looked into the Trump server’s communications with the bank and found they were not used for clandestine purposes.

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