Missouri Judge Pick Advances Despite Concerns Over Anti-Abortion Work

WASHINGTON (CN) – While delaying votes on two contentious nominees to federal appeals courts, the Senate Judiciary Committee on Thursday approved a nominee to a federal court in Missouri with a history of handling anti-abortion litigation in court.

Sarah Pitlyk has worked for the last two years as special counsel at the Thomas More Society, a Chicago-based public interest law firm that describes its mission as working to restore “respect in law for life, family and religious liberty.”

While at the firm, Pitlyk has been involved with a host of abortion-related litigation, including working to defend an Iowa law that banned abortion after a fetal heartbeat is detected and defending David Daleiden and the Center for Medical Progress in civil and criminal cases over undercover videos Daleiden released purporting to show Planned Parenthood officials discussing the sale of fetal tissue.

Pitlyk, up for a seat on the U.S. District Court for the Eastern District of Missouri, also helped pen a friend-of-the-court brief last year urging the U.S. Supreme Court to take up a case over an Indiana law that barred abortions based on sex, race or disability and required abortion providers to bury or cremate fetal remains.

The brief argued abortion providers “target ethnic minorities” and that the abortion rights movement has its origins in racism and eugenics, pointing in particular to the support for eugenics that Margaret Sanger, who founded organizations that became what is now Planned Parenthood, expressed.

The brief makes arguments similar to those Justice Clarence Thomas made in an opinion concurring with the Supreme Court’s decision in the case, which reversed the Seventh Circuit’s ruling invalidating the fetal remains disposal requirements but left in place the court’s ruling on the abortion restriction.

Democrats zeroed in on this work during her nomination process, saying her views on abortion are outside of the mainstream even for conservative nominees.

“Ms. Pitlyk has an extreme ideologically driven record,” Senator Mazie Hirono, D-Hawaii, said Thursday. “She should not be given the power of a lifetime appointment to the federal bench.”

Pitlyk defended her record, saying at her nomination hearing that she would not be the first person with a controversial record to become a federal judge.

“I think I stand in a long line of other people who have sat at this table who have had histories in advocacy or in issue-related advocacy or in politics and who have become very distinguished jurists,” Pitlyk said at her nomination hearing in September.

She also noted that litigation over abortion has only been a major part of her practice for the past few years, as she handled a wide range of issues unrelated to abortion when she worked at the Washington, D.C., firm Covington & Burling and at the Runnymede Law Group.

Pitlyk also defended her qualifications after the American Bar Association rated her not qualified for the position. The ABA’s Standing Committee on the Federal Judiciary faulted Pitlyk for falling just short of the 12 years of legal experience the organization recommends for judicial nominees, and for her lack of trial experience.

Pitlyk acknowledged to the committee that she has never worked on a case that went to trial, questioned a witness in a courtroom or taken a deposition, noting most of her work has been in drafting and filing briefs in appellate cases.

A former clerk to then-D.C. Circuit Judge Brett Kavanaugh, Pitlyk said while she does not have as much trial work as other nominees to federal district courts, she has experience in other areas that have prepared her to do the job of a judge.

“I acknowledge that there can be good-faith disagreement about whether my particular practice has provided me with the ideal preparation to be a district judge, but I don’t think that there is any question that I can – and will – do the job well,” Pitlyk wrote, in response to questions submitted after her nomination hearing.

Pitlyk cleared the committee on a party-line,12-10 vote.

The committee also delayed votes on Second Circuit nominee Steven Menashi and Fifth Circuit nominee Sul Ozerden, both of whom have had trouble with Republican support in the Judiciary Committee.

Menashi, a former professor at the Antonin Scalia Law School at George Mason University, currently works in the White House counsel’s office, having also spent time at the Department of Education earlier in the Trump administration.

His job as a top lawyer in the White House has drawn particular attention from Democrats, who pressed Menashi on legal advice he gave on a host of controversial Trump administration policies. He largely dodged questions about his White House work at the hearing to the frustration of multiple Republicans, most notably Senator John Kennedy of Louisiana.

After the nomination hearing, Senator Lindsey Graham, the South Carolina Republican who chairs the Judiciary Committee, said Kennedy was the reason for the delay. He said the committee would vote again next week and predicted Menashi would be approved on a party-line vote.

Kennedy told Courthouse News later in the day that he is still looking over materials Menashi provided to the committee and reading his earlier writings and that he is not yet sure of how he’ll vote ahead of an anticipated vote in committee next week.

“In Senate time, that’s like a light year away,” Kennedy said.

In response to questions senators submitted after his nomination hearing, Menashi was more forthcoming about his work at the White House. He said he consulted again with the White House on what he was authorized to disclose to senators and that he was told he could reveal specific issues he advised on, though not the content of that advice.

Menashi told senators he gave legal advice on a number of high-profile immigration policies, including a rule making people ineligible for green cards if they are likely to use certain government programs while in the United States and restrictions and changes to the process for claiming asylum at the southern border.

He also gave advice as the White House considered options to fund the president’s long-promised border wall and on efforts to expand the use of expedited removal in immigration proceedings.

At the same time, Menashi said he has not worked on congressional oversight requests, pardons or gun control issues.

Menashi’s confirmation would bring Trump within striking distance of giving the Second Circuit, based in New York City, a majority of judges appointed by Republican presidents.

Ozerden has been mired in the Judiciary Committee for more than a month, as Republican Senators Ted Cruz and Josh Hawley have come out against his nomination, making it impossible for him to be reported favorably by the committee without support from Democrats.

In addition to Pitlyk, the committee approved three other judicial nominees, including U.S. District Court for the Western District of Oklahoma nominee Jodi Dishman and U.S. District Court for the Eastern District of North Carolina nominee Richard Myers.

Dishman received a 17-5 vote, while Myers won approval 16-6.

U.S. District Court for the District of North Dakota nominee Daniel Traynor faced a more difficult vote, as Democrats objected to his past public support of Republicans, including a Twitter account he maintained where he was vocal in his support of President Donald Trump and his criticism of Hillary Clinton.

In addition to spending the past decade at the Devils Lake, N.D., Traynor Law Firm, Traynor has connections to the Republican Party, working as the North Dakota Republican Party’s legislative campaign director in 1992 and on the Republican House caucus staff the year after. He has also been a member of the Republican National Lawyers Association since 2000.

The committee advanced his nomination 12-10.

All of the nominees the committee approved on Thursday now go to the full Senate for a confirmation vote.

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