Senate Confirms Former Homeland Security Counsel for 11th Circuit

WASHINGTON (CN) – The Senate confirmed its 14th Trump nominee to a seat on a federal appellate court on Tuesday, approving a Georgia judge to a seat on the Eleventh Circuit.

Judge Elizabeth Branch has served on the Georgia Court of Appeals since 2012, having worked in both the Office of the General Counsel at the Department of Homeland Security and the Office of Management and Budget during the Bush administration.

Branch, whom the Senate confirmed on Tuesday with a 73-23 vote, told Sen. Dianne Feinstein, D-Calif., that her experience at both agencies will be an asset on the bench as they gave her first-hand insight into the federal regulatory process.

In between her work in the Bush administration and her time on the Georgia Court of Appeals, Branch worked as a partner at the Atlanta firm Smith, Gambrell and Russell from 2008 to 2012.

While Branch was a relatively uncontroversial nominee, she faced questions at her nomination hearing in December on a speech she gave last year on the 14th Amendment in which she said she continues to “struggle with the application and predictability” of court rulings on substantive due process.

Substantive due process is not explicitly outlined in the Constitution, but has been gleaned from the due process clauses of the 14th and 5th Amendments. The theory has expanded rights into areas that do not involve legal procedures and has been instrumental in cases like Roe v. Wade and Griswold v. Connecticut.

Branch explained she gave the speech as part of Law Day activities for the Gainesville-Northeastern Bar Association and that she simply meant it can be hard to forecast how courts will rule in cases that touch on substantive due process. She insisted her comments have no bearing on her commitment to precedent.

“That’s the only issue I was raising, is that it’s hard to predict, as new cases come along, what the Supreme Court may do,” Branch said at her nomination hearing. “But that doesn’t really matter, whether or not I can predict what a future case will be, I am bound by the Supreme Court precedent in this area.”

A self-described “textualist and originalist,” Branch also faced questions from senators and liberal groups about an opinion she   wrote on the Georgia court that reversed the conviction of a man who used a cellphone camera at a grocery store to record a video under a woman’s skirt.

Branch responded to a question about the case Feinstein submitted in writing after her nomination hearing by quoting large sections of her opinion, in which five other judges joined. The opinion reasoned that, while the man’s conduct was “reprehensible,” it was not illegal because it fell through a “gap” in the Georgia criminal code the court said has not kept up with quickly changing technology.

“The remedy for this problem, however, lies with the General Assembly, not with this court,” Branch wrote in the opinion. “Both our constitutional system of government and the law of this state prohibit the judicial branch from amending a statute by interpreting its unambiguous provisions thereof.”

A member of the conservative Federalist Society, Branch is the second Trump nominee the Senate has confirmed to the Eleventh Circuit, following Christopher Newsom.

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