WASHINGTON (CN) — As the Senate Judiciary Committee met Wednesday to advance a crop of President Joe Biden's federal court picks, they were confronted by legal arguments and advocacy statements made early on in their careers, a tactic the GOP hopes will slow down what has been the fastest nominating pace by a president in history.
Biden has announced 62 judicial nominees to date, placing an emphasis on speed and racial and gender diversity in an attempt to counteract the court-packing of former President Donald Trump that gave lifetime appointments to the least-diverse group of federal judges since the Reagan administration.
The nominees each have been endorsed from bipartisan nominating commissions at the state level, and they have the support of their home-state senators, but Republican members of the committee question their ability to rule fairly.
"I find them a little concerning," GOP Senator Josh Hawley of Missouri said Wednesday of arguments that one nominee to the Northern District of Ohio made in 2014 when he was a federal defender representing a grandfather convicted of child pornography involving his step-granddaughters.
Charles Esque Fleming represented the defendant in United States v. Brown during a three-decade career as a federal public defender. He told the committee Wednesday that it was his job to represent his client and that he was fulfilling that duty when he mounted an argument that raised questions about whether the pornography could be considered interstate commerce and thus lead to higher federal charges.
“I was one of those kids on the playground that when I saw another child being bullied, I would intervene because of my desire not to see them treated unfairly, and it's that passion that motivated me to become an advocate. It's that passion that motivated me to become a public defender. And it's that passion that motivates me to become judge," Fleming said. "Now, after 30 plus years as an advocate, I like to believe that I know what it means to be fair."
If he were to be confirmed, Fleming said he would focus on letting his conception of justice guide him.
“The one thing that comes home to roost all the time is how important it is for people to feel as though the justice system is treating them fairly and that they are fairly represented and that they and their positions are respected,” Fleming said.
Fleming was one of 10 names in Biden's eighth judicial-nomination rounds. Another pick from the same list, John Chun, is poised now to be the first Asian American man to serve on the U.S. District Court for the Western District of Washington.
A judge today on the Court of Appeals for Washington state, Chun faced inquiries Wednesday from Republican Senator Marsha Blackburn of Tennessee about his participation as an attorney on an amicus brief in the 2003 case Grutter v. Bollinger. The brief urged the Supreme Court to uphold affirmative action in college admissions, a position Blackburn contorted to equate racial diversity efforts with racial discrimination.
"Do you believe discrimination on the basis of race is permissible in college admissions?" the senator asked Chun. "Is it OK to discriminate on the basis of race in hiring?”
Chun agreed to submit a written statement to the committee on his position, noting that he was serving as an advocate for the King County Bar Association along with a group of other attorneys when the brief was written.
The hand-wringing over Chun struck Democratic Senator Mazie Hirono of Hawaii as uneven, barely a year after the committee saw multiple Trump nominees with politically complicated pasts make their way to confirmation.
“I would like the note the many times that we have sat here listening to my Republican colleagues talking about how lawyers represent their clients not necessarily sharing the views or the behavior of their clients,” she said.
Blackburn was also critical Wednesday of David Augustin Ruiz, a current magistrate judge for the Northern District of Ohio whom Biden has tapped for promotion. If confirmed, Ruiz would be the first Hispanic district court judge in Ohio.
Though Ruiz largely evaded critiques of his previous advocacy, Blackburn questioned whether his background, which largely is in civil proceedings, should qualify him to the federal bench.
Rounding out the panel before the committee Wednesday was Bridget Meehan Brennan, who has also been nominated for a judgeship for the Northern District of Ohio. Republican Senator Ted Cruz of Texas interrogated Brennan, now an acting United States attorney for the district, over her note of disappointment when a professor serving on the Cleveland Police Monitoring Team resigned from that position after publicly criticizing the police.
Specifically, Ayesha Bell Hardaway had described police as "brutal in interactions with Black people."
In response to Hardaway's resignation, Brennan released a statement this past June that underscored "the importance of diversity of thought and experiences to the police reform process.”
“Professor Ayesha Bell Hardaway was an integral part of this dialogue, bringing a unique combination of local knowledge and legal expertise," the prosecutor said. "Her presence on the Monitoring Team facilitated the progress and successes we have seen to date, and we were disappointed to learn of her resignation.”
Cruz grilled Brennan over whether she agreed with Hardaway's views on the police.
"I do not take a position on another person's views," Brennan said.
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