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Senate confirms civil rights attorney Holly Thomas to 9th Circuit

The Ninth Circuit has only had one Black female judge, but Holly Thomas will be the first Black woman from California to join the court.

WASHINGTON (CN) — The Senate confirmed Holly Thomas as a judge for the Ninth Circuit on Thursday, only hours after the committee that narrowly advanced her nomination put another nine court appointees on the path to a full Senate vote.

Though she becomes the first Black woman from California to serve on the Ninth Circuit, Thomas has drawn criticism from Republican lawmakers over her history as a civil rights attorney and previous work with the NAACP Legal Defense and Educational Fund.

Back when she worked for the New York solicitor general, Thomas filed an amicus brief in federal court challenging a North Carolina state law that banned transgender and nonbinary people from using the restroom aligned with their gender identities. Republicans on the Senate Judiciary Committee were eager to confront Thomas about this brief during her confirmation hearing last year.

Thomas, who has been a judge in the Los Angeles Superior Court’s Family Law division since 2018, emphasized in her testimony that it was her job as an attorney to advocate for clients and their beliefs.

"But when I look at your career, I don't see that. I see that you are passionately committed to a particular vision of law," Republican Senator Ted Cruz of Texas said to Thomas during a meeting back in October.

The full Senate approved Thomas' nomination 48-40 just before noon Thursday. All 40 votes against Thomas came from Republicans, and another 10 Republicans abstained as did two Democrats, South Carolina Senator Tim Scott and Arizona Senator Kyrsten Sinema.

Thursday's vote makes Thomas the fourth of President Joe Biden’s nominees confirmed to the Ninth Circuit. Lucy Koh and Jennifer Sung were both confirmed in mid-December, followed earlier this month by Gabriel Sanchez.

“To put it simply, our justice system would look very different if it were full of judges like Holly Thomas," Rakim H.D. Brooks, president of the group Alliance for Justice, said in statement this afternoon. "Judge Thomas has spent her entire career advocating for the law to protect those who need its protection the most. She was a preeminent civil rights lawyer, and she will serve admirably on the Ninth Circuit Court of Appeals."

Earlier Thursday, the Senate Judiciary Committee green-lit a raft of names whom Biden has tapped to bring more diversity to U.S. courts. Many of the nominees had already been considered and approved by the committee but had to be reconsidered because the Senate did not confirm them before the end of 2021.

The panel easily advanced the nine nominations of Alison J. Nathan to the Second Circuit, Victoria Marie Calvert and Sarah Elisabeth Geraghty to the Northern District of Georgia, John H. Chun to the Western District of Washington, Georgette Castner to the District of New Jersey, Ruth Bermudez Montenegro to the Southern District of California, Julie Rebecca Rubin to the District of Maryland, and Cristina D. Silva and Anne Rachel Traum to the District of Nevada.

Dale Ho, a nominee to serve on the Southern District of New York, testifies before the Senate Judiciary Committee on Dec. 1, 2021. (Screenshot via Courthouse News)

Partisan tensions flared, however, over another nomination — that of Dale Ho, the current director of the ACLU's voting rights project.

Both Ho's professional and personal histories have been a point of contention during his nomination process.

Ho argued before the Supreme Court in the high-profile cases of Trump v. New York and Department of Commerce v. New York, litigation involving in one instance the former president's attempts to keep undocumented immigrants out of the census count and in the other a citizenship question on the national poll.

During his time as an advocate, Ho tweeted and made public criticisms of several Republican lawmakers, including members of the Senate Judiciary Committee, a point that Republicans warned signaled Ho would serve as an "activist judge."

“Mr. Ho has repeatedly shown that he is a partisan activist who lacks the judicial temperament to serve as a federal judge. He has spent much of his professional life on Twitter and on cable TV attacking conservatives and the states, the courts, and the people with whom he disagrees ,” Republican Senator Chuck Grassley, ranking member of the committee, said Thursday.

Back in December during his initial nomination hearing, Ho said he regretted the harsh tone of his public statements.

"I very much regret the tone that I have taken on social media from time to time particularly if it’s given anyone the impression that I wouldn’t be impartial," Ho said. "I, in my role as an advocate, have taken a role on social media. It's been a part of my job. I’ve pushed the envelope to break through, but I regret the times that I’ve crossed the line with overheated rhetoric."

Senator Mike Lee, a Republican from Utah, raised issue with a 2018 statement by Ho in which he referred to the fact that each state is given two senators regardless of population as "senate malapportionment."

Lee noted the design of the Senate is mapped out in the Constitution and is one part of the founding document that cannot be amended.

“I don't think it's too much to ask that people we've been asked to confirm to a lifetime appointment as an Article III judge should not be expressing open hostility and contempt for the Constitution, the source of the authority by which they're appointed, the source of the authority by which they will operate as Article III judges," Lee said.

The committee tied over whether to advance Ho's nomination, as well as the nominations of Charlotte N. Sweeney to the District of Colorado and Hernan D. Vera to the Central District of California, although the panel did not raise additional debate on Sweeney or Vera's nomination.

Sweeney and Vera's nominations both received tie votes when they first went through the committee in 2021.

If confirmed, Sweeney, who currently serves as a private attorney, would be the first LGBTQ woman west of the Mississippi to serve as a federal district court judge.

Vera currently serves as a judge on the Los Angeles County Superior Court.

Now, the future of the three nominees depends on the Senate, where they will each face an additional obstacle before the chamber can vote on their nomination.

Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell have the opportunity to move for the dismissal of their nominations in the equally divided Senate, where Democrats have a leg up only if it comes down to Vice President Kamala Harris casting the deciding vote.

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