NYC federal court nominee falters after Dem defection

WASHINGTON (CN) — The Senate Judiciary Committee on Thursday failed to advance a controversial federal court nominee after a Democratic committee member, in a rare move, broke with his colleagues and voted against the appointment.

In a tight 10-11 vote, the upper chamber’s legal affairs panel did not report Sarah Netburn, who was tapped by the White House to fill a vacancy in the Southern District of New York, to the full Senate. The deciding vote was cast not by a member of the committee’s Republican majority but by Georgia Senator Jon Ossoff, a Democrat.

It’s the first time a Democrat has cast a negative vote for any of the Biden administration’s more than 200 federal court nominees.

Netburn faced staunch GOP opposition stemming largely from a 2022 case she presided over as a magistrate judge, in which she recommended moving an incarcerated transgender woman from a men’s prison to a women’s prison. She argued at the time that refusing to transfer the petitioner, a registered sex offender serving a sentence for violating parole by distributing child pornography, would violate the detainee’s Eighth Amendment rights.

Republicans accused Netburn of putting incarcerated women in danger.

“This judge ruled that the Constitution requires that biological men who wake up one day and say ‘I’m a woman’ have to be housed with female prisoners,” Texas Senator Ted Cruz said. “This judge also ruled, in effect, that female prisoners had no rights.”

During a May confirmation hearing, Netburn pointed out that the petitioner had “serious medical needs” and had not engaged in any physical nor sexual violence since she had completed her initial sentence.

“I applied the law to the facts and came to a fair decision,” Netburn told lawmakers.

But Republicans on Thursday said the situation had changed. Several lawmakers pointed to a Wednesday report published by the conservative Washington Free Beacon which alleged that after the transfer, the petitioner exposed herself to other inmates at a women’s prison.

South Carolina Senator Lindsey Graham, the Judiciary Committee’s Republican ranking member, said his staff asked the Bureau of Prisons to confirm the reports but the agency refused, citing privacy concerns.

“The facts alleged here are beyond disturbing,” Graham said, and asked panel chair Senator Dick Durbin to hold off voting on Netburn.

But Durbin pointed out that, while the nominee had acknowledged the petitioner’s conduct was “horrific,” her recommendation was adopted by the federal court — and all three wardens who supervised the petitioner supported the transfer request.

“It is fair to ask whether the judge made a reasonable decision in this case at the time she made the decision,” the Illinois Democrat said. “The decision by the district court to support her decision is an indication that it was fair and reasonable.”

Anything that happened after Netburn’s recommendation, Durbin argued, would be hard for a judge to predict.

While Democratic leaders seemed satisfied that Netburn was qualified for the federal bench, questions about her prison transfer recommendation proved too much for Ossoff, who has long been an advocate for protecting incarcerated people.

“I have concerns about the wisdom of the matters discussed in session,” he told Courthouse News after Thursday’s meeting. The senator confirmed he was talking specifically about Netburn’s transfer recommendation.

“These are very challenging decisions for prison officials and for judges,” Ossoff said.

He pointed out that the Senate on Wednesday passed prison oversight legislation he authored, which was informed in part by a bipartisan investigation into sexual assault of women detained in federal prisons.

“I’m passionate about civil rights and human rights in carceral facilities,” he added. “These are tough issues, but that was my judgment in the markup today.”

Ossoff declined to say whether he had voiced his concerns about Netburn’s nomination with Durbin before Thursday’s meeting or if he’d decided to vote against the nominee during the session.

In a statement Thursday afternoon, Graham said the Judiciary Committee “rightly” shot down Netburn’s nomination and pointed out that the vote was the first bipartisan rejection of a Biden administration judge sent to the Judiciary Committee.

“[W]hile the committee voted this nominee down, all but one Democrat voted to move forward,” he wrote. “I hope the American people are watching what’s going on when it comes to the Democratic agenda.”

A spokesperson for Durbin declined to comment.

Other committee Democrats had similarly little to say about Ossoff’s defection. Connecticut Senator Richard Blumenthal said he hadn’t even been aware that his colleague voted against Netburn — he and several other lawmakers dipped in and out of Thursday’s meeting to attend other hearings.

Rhode Island Senator Sheldon Whitehouse told Courthouse News that he wasn’t aware that Ossoff would break with Democrats before the Judiciary Committee convened to vote. Asked whether the move would hurt Netburn’s chances of passing a second panel vote, Whitehouse deferred to Durbin.

Despite the dramatic turn of events, the Judiciary Committee can still bring Netburn’s nomination up for a vote again.

Meanwhile, the panel also advanced nine more of the White House’s federal court nominees, including Embry Kidd, nominated to the Eleventh Circuit, Adam Abelson, tapped for the District of Maryland and Michelle Court, selected to fill a vacancy in the Central District of California.

That was the most important development of Thursday’s meeting, said Carl Tobias, chair of the University of Richmond School of Law. He pointed out that most of the eight nominees secured some bipartisan support thanks to affirmative votes from Graham.

“These factors suggest that the nine nominees will all be confirmed,” Tobias forecast.

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