Partisan squabble mars debate on slate of Biden court picks

WASHINGTON (CN) — While the air outside the Capitol hung heavy with wildfire haze, a similar atmosphere was developing Wednesday inside the Senate Judiciary Committee, where lawmakers closed out a hearing on four federal court nominees with a partisan bang.

In one particularly tense exchange, Louisiana Republican John Kennedy needled Loren AliKhan, tapped by the Biden administration to fill a vacancy on the U.S. District Court for the District of Columbia, about her refusal to expound on issues such as affirmative action and systemic racism.

“As a sitting judge, it is inappropriate for me to comment on my personal choice,” AliKhan had retorted.

A daughter of immigrants from Pakistan, AliKhan has served for over a year on the D.C. Court of Appeals, the district's highest appellate court, after four years that city's solicitor general.

AliKhan predictably testified that her personal beliefs would not interfere with her decisions as a jurist, but the answer did little to appease Kennedy.

“If you’ve never thought about these issues, you’re unqualified to be a federal judge,” the lawmaker said. “I think you ought to come here and answer these questions forthrightly.”

At the end of Wednesday’s hearing, Democrats admonished the minority party for their pressure on the nominees.

Senator Dick Durbin, an Illinois Democrat, noted that nominees who testify before Congress are typically instructed not to share their own opinions and rather stick to the letter of the law, so as not to prejudice any current or future cases.

“We all have opinions on things, but judges do their best to suppress those, and follow the law and facts in a case, which they are asked to do," Durbin said.

Kennedy, doubling down on his position, argued that a jurist’s personal beliefs are important regardless on how they might affect legal decisions.

“When you come before this body and you refuse to answer a question about your personal beliefs, people are going to assume what they want,” the senator said. “And sometimes, they’re going to assume incorrectly.”

Pushing back on the Louisiana Republican, Durbin recalled the nomination hearings for Trump-appointed Supreme Court justices, noting in particular how Justice Brett Kavanaugh obfuscated his position on the legal right to abortion as settled law but later voted to overturn Roe v. Wade.

“You would think an issue as fundamental and basic and well known as the issue of abortion would be one that you can express yourself on,” Durbin said. “But many, including nominees for the Supreme Court, would tell us it’s established law and precedent — and along comes the Dobbs [v. Jackson Women’s Health Organization] decision.”

Durbin argued that he hadn’t pushed the nominees for their personal opinions on abortion rights. “That’s just part of this process that both sides will use to their advantage when possible," he said.

The chairman’s comments prompted a response from Republican Mike Lee, who spoke up before Durbin could end the hearing.

“I take issue with the suggestion that any one of these nominees misrepresented in any way, shape or form their views on the Dobbs case,” Lee interjected. “You have defamed them — you’ve accused them of committing a crime, testifying falsely under oath. They did not do that.”

Durbin, taking the last word in the exchange, reiterated his argument that he had kept nominees’ personal opinions at arm’s length, even during discussion of abortion rights. “If you listen to [the justices’] testimony before this committee, they carefully misled us or obfuscated the situation,” the senator said, referring to the Dobbs decision. “That’s just the nature of this process.”

The partisan squabbling bookended what had already been at times the Wednesday grilling of AliKhan and the three other White House judicial picks, each nominated for district court openings in Michigan, Pennsylvania and Connecticut.

AliKhan — who once argued a case over whether former President Donald Trump's ownership of the Trump International Hotel in Washington violated the emoluments clause of the U.S. Constitution — faced a particularly close cross-examination from Republican lawmakers.

South Carolina Senator Lindsey Graham, the committee’s ranking member, brought up a Third Circuit amicus brief AliKhan filed in a 2021 case dealing with the legality of safe opioid injection sites in Philadelphia. AliKhan pushed back on implications from Graham that her involvement lent support to safe consumption of dangerous opiates such as fentanyl.

The D.C. court nominee also took flak from Missouri Republican Josh Hawley, who sought to tie her work on litigating Covid-19 lockdown restrictions on Washington churches to what he said were comparatively lax rules for protests and demonstrations — which AliKhan framed as a misinterpretation of the city’s pandemic law.

Despite criticism from Republicans, at least one legal expert believes Wednesday’s nominees will have some bipartisan support.

“The nominees were very strong,” said Carl Tobias, chair of the University of Richmond School of Law. “They had been involved in much public service and possessed great experience that will inform federal district court service.”

As for partisan squabbling on the panel, Tobias said that Durbin and Kennedy should agree to disagree — but that the exchange is indicative of a larger trend. “What happened today reflects the downward spiral in the appointments process during Trump’s tenure.”

The Senate’s Democrat-controlled judiciary panel, back at full strength after the return of California Senator Dianne Feinstein, is set to vote Thursday on its next round of judicial appointments.

Follow @BenjaminSWeiss

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit