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Record on gun, abortion cases muddies confirmation waters for DC Circuit pick

The appeals court nominee was one of five prospective federal judges grilled by senators Wednesday.

WASHINGTON (CN) — The Senate Judiciary Committee heard testimony Wednesday from five federal judicial nominees, including one D.C. Circuit appointee whose work on polarizing cases involving abortion and gun rights sparked pushback from Republican lawmakers.

Bradley Garcia, who would be the first Latino judge on the D.C. Circuit, spent nearly a decade working on federal appeals cases before he became a deputy assistant attorney general with the Department of Justice's Office of Legal Counsel.

As a partner at O'Melveny and Myers, Garcia argued several cases before the Supreme Court and fought against former President Donald Trump's diversion of Department of Defense funds to build the border wall in the case of El Paso County v. Trump.

Garcia faced scrutiny at the committee Wednesday for his work on pro bono cases, including his representation of a client, June Medical Services, that challenged a Louisiana law requiring abortion providers to have admitting privileges at a hospital within 30 miles of their clinic. Siding with Garcia's clients, the Supreme Court overturned the state law in 2020.

Also in 2020, Garcia was on a team defending New York City's requirement that people with licenses to have handguns in their homes could not travel with the weapons to a shooting range. The Supreme Court had been poised to decide the constitutionality of that law, but it instead ruled the case moot because the city amended its rule in the interim.

The challengers in that case, a group called the New York State Rifle & Pistol Association, later challenged New York state licensing restrictions for concealed weapons. The Supreme Court struck down the rules as unconstitutional last month.

Senator John Kennedy, a Louisiana Republican, emphasized that Garcia's work on cases dealing with controversial constitutional topics was done pro bono.

“So you didn’t have to do it to eat, you chose to do it,” Kennedy said.

“At a large law firm, senator, if you are asked to work on a case, in my experience, if I wasn’t too busy, I believe I always said yes," Garcia explained. “I enjoy litigating complex cases, especially at the Supreme Court, so I would have agreed when I was asked."

Senator Ted Cruz said Garcia's record on high court cases represented "left-wing advocacy."

"Looking over your clients, it's actually impressive just how much of a left-wing advocate you've been," the Texas Republican said.

Garcia said his record representing Fortune 500 companies as well as individual petitioners, and his experience speaks for itself. While Garcia clerked for Supreme Court Justice Elena Kagan, nominated by President Barack Obama, he also clerked for the now-retired D.C. Circuit Judge Thomas Griffith, a George W. Bush nominee.

“They were appointed by presidents of different political parties but share a dedication to the rule of law and a diligence and collegiality that I've tried to emulate throughout my career,” Garcia said of his former mentors.

Republicans emphasized Garcia's lack of judicial experience and his young age, sitting poised for the bench at only 36. But Democrats pushed back against this assertion.

"What strikes me about the litigation that you've done is you can do years of litigation, you can do numbers of cases, but the magnitude and importance of the location of the challenges that you've face I think, are very, very unusual, if not unique. And whether it's voting rights or gun or reproductive rights, you're really at the cutting edge of a lot of litigation," Senator Richard Blumenthal, a Connecticut Democrat, said to Garcia.

The nominee's record of arguing 13 appellate cases at the federal level drew praise from Democrats.

"In my last year at the law firm alone, I served as trial counsel at two federal jury trials, I argued a pro bono case at the Supreme Court, and I argued three appeals in federal appellate courts," Garcia said of his resume.

President Joe Biden's nomination of Judge Dana Douglas, who would be the first woman of color to serve as a judge on the Fifth Circuit, also went before the committee Wednesday.

Douglas is a magistrate judge for the Eastern District of Louisiana and spent 17 years at Liskow & Lewis, a Louisiana law firm focused on energy and oil where she worked largely on commercial litigation.

Louisiana has two Republican senators, Bill Cassidy and Kennedy, both of whom have backed Douglas.

The committee also on Wednesday considered the nominations of Judge Frances Kay Behm to the Eastern District of Michigan, Jerry Blackwell to the District of Minnesota and Anne Nardacci to the Northern District of New York.

Behm is a judge for Genesee County Circuit Court and Genesee County Probate Court.

Blackwell is a founding partner at the Minneapolis law firm of Blackwell Burke, one of the largest Black-run law firms in Minnesota.

He gained national prominence last year as the special assistant attorney general in the state prosecution of Derek Chauvin, the former Minneapolis police officer convicted of murdering George Floyd. Blackwell delivered the opening and closing arguments at the high-profile trial.

"It was an awesome responsibility. And from my point of view, I think you handled it professionally. I couldn't have asked for a better administration of justice in that courtroom, from what I can see as an outside observer," Senator Dick Durbin, the Democratic chairman of the committee, said to Blackwell.

Nardacci is a partner at the Albany law firm of Boise Schiller Flexner, where she’s worked for more than 15 years.

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