WASHINGTON (CN) – President Donald Trump’s nominee to serve on the 11th Circuit promised on Wednesday she would faithfully follow precedent, rebuffing concerns Democrats raised about her opinions on substantive due process.
“I think if you look at my record, you can see from the analysis of my cases, that I am a textualist and originalist and absolutely, at the end of the day, I am bound by U.S. Supreme Court precedent,” Judge Elizabeth Branch told the Senate Judiciary Committee at her nomination hearing Wednesday.
Branch has served on the Georgia Court of Appeals since 2012, and Sen. Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, said she participated in roughly 1,500 cases during her time on the bench.
But most of the questioning Branch faced from senators on Wednesday was not about her judicial record, but instead focused on a speech she gave earlier this year on the 14th Amendment.
The speech was part of Law Day for the Gainesville-Northeastern Bar Association in Georgia and in it Branch said she continues to “struggle with the application and predictability” of court rulings on the substantive due process principle gleaned in part from the 14th Amendment.
Unlike procedural due process, substantive due process is not explicitly named in the Constitution, but comes from the due process clauses in the 14th and 5th Amendments. Courts have used substantive due process to protect fundamental rights that do not involve legal procedures and the principle has been applied in such landmark cases as Roe v. Wade and Griswold v. Connecticut.
Branch said the subject of the speech was chosen by the American Bar Association for Law Day activities and that part of her point was that it can be hard to predict how courts will rule each time a substantive due process case comes up. She insisted that she would follow the applicable precedent if confirmed to a seat on the federal appeals court.
“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 Wednesday. “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.”
Democrats pressed Branch on the limits of her apparent questions about the substantive due process principle, but the judge followed the lead of other nominees in declining to comment on hypothetical cases that might come before her if confirmed.
Sen. Dick Durbin, D-Ill., was unhappy with her unwillingness to answer his question about how her comments would apply to Griswold.
“Judge, you just expressed you personal opinion when it came to originalism, now I’m asking you to apply the decision to a case which has been the law of the land for 60 years and you’re telling me you can’t apply it to the case?” Durbin asked.
Unlike most nomination hearings during the Trump administration, the circuit court nominee received fewer questions than the federal district court nominees who testified later at the hearing.
Some of the most pointed questioning was directed at Matthew Kacsmaryk, who currently works as deputy general counsel at the First Liberty Institute, a legal group dedicated to religious freedom cases.
Sen. Richard Blumenthal, D-Conn., questioned Kacsmaryk about a friend of the court brief he wrote in Obergefell v. Hodges arguing a decision finding a right to same-sex marriage could be a “road to potential tyranny.” Kacsmaryk explained he wrote the brief for several religious groups in order to remind the Supreme Court to protect his clients’ religious rights when writing its opinion in the case.
“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 Wednesday.
Kacsmaryk argued the brief tract with Justice Anthony Kennedy’s majority opinion in Obergefell, a portion of which he dedicated to saying religious people still have a First Amendment right to advocate against same-sex marriage on religious grounds.
A member of the conservative Federalist Society, Kacsmaryk has also written against what he calls the “sexual revolution,” and helped defend a Mississippi law that allows businesses owners to refuse service to people if doing so conflicts with their religious beliefs.
Durbin pressed Kacsmaryk on whether he would recuse himself from same-sex marriage cases given his record on the issue and the nominee said he would make recusal decisions on a “case by case basis.”
Senators also intently questioned Matthew Petersen, a nominee for the U.S. District Court for the District of Columbia who currently serves on the Federal Election Commission.
Sen. Sheldon Whitehouse, D-R.I., specifically pressed Petersen on an FEC case in which an energy company pressured its employees to contribute to an election campaign if they wanted to continue working in the industry. Petersen voted against opening an investigation into the matter.
Petersen also voted not to open an investigation into Crossroads GPS after the group founded by Karl Rove made more than $15 million in campaign donations without being registered as a political committee.
Petersen said he could not speak publicly about the details of the cases Whitehouse raised because they are still being litigated, but told the committee he could later provide “helpful” context for the decisions.
Whitehouse said the two decisions call into question Petersen’s insistence that he acted neutrally during his time on the commission.
“It’s hard for to believe that a man who has taken an oath of neutrality and dispassionate obligation to follow the law and makes these rather extraordinary judgments that these matters should not even be investigated when big Republican political actors are involved, is going to be very capable of being neutral and dispassionate when he’s asked to take an oath as a judge,” Whitehouse said.
A day after the Senate confirmed a nominee to the 8th Circuit, the American Bar Association found unanimously not qualified, the Judiciary Committee heard testimony from another Trump nominee the group deemed not qualified.
Unlike Steven Grasz’s unanimous rating, a minority of the ABA Standing Committee on the Federal Judiciary found Charles Goodwin qualified. Senators at Wednesday’s hearing said the ABA raised questions about the U.S. District Court for the Western District of Oklahoma nominee’s work ethic in reaching its decision.
When Sen. Chris Coons, D-Del., asked the magistrate judge to explain why the ABA found he was often not at the courthouse until “mid-afternoon,” Goodwin said he often works from his home office in the morning when he does not have court hearings and needs to work on legal writing.
“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.
The committee also considered the nominations of Stan Baker, who is up for a seat on the U.S. District Court for the Southern District of Georgia and Eli Richardson, whom Trump nominated to a seat on the U.S. District Court for the Middle District of Tennessee.