Senate Panel Advances Nominations of 10 Federal Judges

WASHINGTON (CN) – The Senate Judiciary Committee advanced the nominations of 10 federal judges on Thursday, including two nominees to the 5th Circuit and an 8th Circuit nominee the American Bar Association rated unanimously not qualified.

It was the committee’s busiest day of approving judges during the Trump administration, eclipsing the eight nominees it sent to the full Senate on Oct. 26. The three circuit court nominees the panel approved on Thursday is also the most in a single day this year.

All of the circuit court nominees advanced on 11-9 votes that fell strictly along party lines.

The most controversial nominee on the agenda was Steven Grasz, whom the American Bar Association rated unanimously not qualified in October. President Donald Trump’s nominee to the 8th Circuit, Grasz has a history of working in Republican politics, having served as Nebraska’s deputy attorney general from 1991 to 2002 and as general counsel for the Nebraska Republican Party.

The American Bar Association’s Standing Committee on the Federal Judiciary found Grasz would have trouble separating “his role as an advocate from that of a judge,” citing interviews with Grasz’s peers who questioned his commitment to following precedent.

“In sum, the evaluators and the committee found that temperament issues, particularly bias and lack of open-mindedness were problematic,” Pam Bresnahan, the chair of the ABA’s Standing Committee on the Federal Judiciary wrote to the Senate Judiciary Committee. “The evaluators found that the people interviewed believed that the nominee’s bias and the lens through which he viewed his role as a judge colored his ability to judge fairly”

Grasz is the first circuit court nominee to receive a unanimous not qualified rating from the ABA since 2006 and Republicans turned the fight over his nomination into a referendum on the group’s long-time role in evaluating judicial nominees.

Sen. Ted Cruz, R-Texas, called the ABA a “liberal advocacy group” at a hearing on the ABA following Grasz’s nomination hearing last month, while other Republicans cautioned against looking at the organization as a neutral arbiter of judicial quality.

Republicans boosted their claims last week when Grasz provided additional documents to the Judiciary Committee that appeared to contradict the group’s findings about his attempt to disqualify a member of Nebraska’s judicial selection committee. The documents Grasz provided to the committee showed Grasz was representing a client when he attempted to have a member of the judicial nominating commission disqualified due to allegations of “unethical behavior.”

The ABA report on Grasz cited his efforts as evidence of “allegiances too strong for Mr. Grasz to be independent,” while also faulting him for using confidential information in the effort. Sen. Ben Sasse, R-Neb., provided a letter from Nebraska Attorney General Doug Peterson in which Peterson said Grasz did not break rules any rules in filing the complaint.

In the end, Sen. Dianne Feinstein, D-Calif., said her concerns about Grasz go beyond the ABA’s findings, as she also cited Grasz’s work defending Nebraska’s restrictions on abortion access. Grasz specifically defended a regulation that prevented Medicaid dollars from going towards abortions for poor women who are the victims of rape or incest.

“Based on these factors, I share the concerns that Mr. Grasz will be unable to detach himself from his deeply held social agenda and political loyalty and I cannot support his nomination,” Feinstein said.

The committee also approved Texas Supreme Court Justice Don Willett, a nominee for the 5th Circuit the Texas legislature declared the state’s first “tweeter laureate” in 2015.

Willett was on President Donald Trump’s short list for nominees to succeed the late U.S. Supreme Court Justice Antonin Scalia. A justice on the Texas Supreme Court since 2005, Willett previously served as special assistant to the president during the George W. Bush administration.

Willett also spent two years in the Office of the Attorney General of Texas after a one-year stint at the Justice Department in Washington.

Feinstein probed Willett on a memo he wrote while working in Bush’s policy office when the former president was serving as Texas governor. Willett proposed changes to a proclamation honoring the Texas Federation of Business and Professional Women that removed references to “glass ceilings,” calling the gender pay gap “an allegation that some studies debunk.”

Willett defended against Feinstein’s questions by saying his mother, who raised him by herself working as a waitress, suffered “every workplace indignity imaginable.” But Willett did not specifically disavow his comments, though he did say he proposed the changes because the proclamation was not the place to endorse specific policy goals.

Feinstein was not satisfied with the answers, apparently, as she said his unwillingness to specifically disavow the comments were a reason she voted against Willett.

Willett has earned fame on certain corners of the internet for his active twitter account, but that account drew a significant amount of controversy, including from the newest Republican member of the committee.

Willett retweeted a Fox News article in February 2014 about a transgender student being able to play on the female softball team at a California high school, adding the comment “go away, A-Rod.” Willett explained the joke was “ham-handed,” and meant to poke fun at what former Yankees star Alex Rodriguez would do following his year-long suspension from baseball, which took effect around the same time.

Sen. John Kennedy, R-La., said he has concerns about nominees tweeting because it could create the appearance of bias.

“Impartiality is important, but I’ll tell you what’s just as important, the appearance of impartiality,” Kennedy said. “It doesn’t matter if you’re impartial if the people coming before you don’t believe you’re impartial.”

Kennedy said he has spoken with Willett and that he believes the judge now understands the concerns some lawmakers have about his active social media presence.

The final circuit court nominee the committee approved was James Ho, the son of Taiwanese immigrants who said he learned to speak English by watching Sesame Street as a child. Ho, who is up for a spot on the 5th Circuit, is currently a partner at the Dallas office of Gibson Dunn & Crutcher and served as Texas solicitor general from 2008 to 2010.

Ho worked in the Justice Department’s Office of Legal Counsel from 2001 to 2003 before becoming chief counsel for Sen. John Cornyn, R-Texas. Ho also clerked for Supreme Court Justice Clarence Thomas before taking over as Texas solicitor general.

Ho’s time at the Bush Justice Department became the primary attack point for Democrats opposed to his nomination, as a document he authored is mentioned in a footnote of the infamous Bybee memo, which justified the Bush administration’s use of torture.

The Bybee memo is public, but Ho’s paper is not and Democrats unsuccessfully pushed to have the Justice Department release the document. Ho told the committee during his nomination hearing last month that he could not unilaterally decide to release the memo because only the client – in this case the government – can waive the attorney-client privilege.

All three circuit court nominees have ties to the conservative Federalist Society, which Democrats have in the past used to question the independence of Trump nominees.

Sen. Sheldon Whitehouse, D-R.I., said the nominees the committee advanced on Thursday were hand-picked by special interests keen on putting sympathetic judges on the benches of federal courts.

“I think these nominees are here precisely because powerful interests expect them to be terrible judges,” Whitehouse said. “For those powerful interests, this is not a bug in the nominees’ candidacy, it is a feature.”

But in comments after the meeting, Sasse blasted Whitehouse’s comments, saying they ignore the fact that everyday voters with no ties to corporate or special interests advocate for judges with viewpoints similar to those Trump has put forward.

“It is absolutely bizarre to hear this theory of the world where there are puppet strings behind every person that acts,” Sasse said. “Every Republican or anybody who believes that a judiciary should be independent is supposedly a puppet.”

The only other nominee to receive opposition from Democrats on Thursday was Mark Norris, who has served as the Republican majority leader of the Tennessee State Senate since 2007. Norris has served in body since 2000, having spent the seven years prior on the Shelby County Commission.

All nine Democrats on the committee voted against Norris, who received numerous questions during his nomination process on his support of bills taking conservative stances on issues from abortion to gay marriage.

In questions submitted in writing following his nomination hearing, Feinstein pushed Norris to explain his support of a 2009 amendment to the state constitution that would give state lawmakers broad authority to change abortion laws. Tennessee voters approved the measure, but a federal judge ordered a recount excluding the votes in ballots that did not also include a choice for governor.

Tennessee’s appeal of the decision is still pending before the Sixth Circuit.

Norris also co-sponsored a bill that would have put stricter licensing requirements on abortion facilities. Tenn. Gov. Bill Haslam, a Republican, signed the bill in 2015, requiring facilities that perform more than 50 surgical abortions register as an “ambulatory surgical treatment center.”

When Feinstein pressed Norris on the legislation, he said he supported the bill as part of his job as a legislator and that he would be bound by the precedent of Roe v. Wade if approved to the federal bench.

Norris also supported a voter ID law in Tennessee in 2011, as well as another bill eliminating a requirement that people seeking to buy a gun in Tennessee provide a thumbprint.  He also backed a 2004 law that defined marriage as between a man and a woman.

The remaining six nominees the committee approved Thursday sailed through on a single, unanimous voice vote. That included Terry Moorer, who would be the first African American judge on the U.S. District Court for the Southern District of Alabama if confirmed.

Moorer is currently a magistrate judge on the U.S. District Court for the Middle District of Alabama, having taken the position in 2007. Moorer is a veteran of both the Alabama National Guard and of the United States Army, having earned the Legion of Merit and a Bronze Star for his service.

Moorer was the command judge advocate at Camp Arifjan, Kuwait from 2003 to 2004 and later served as a military judge for the Alabama National Guard. Moorer also served as a federal prosecutor in the U.S. Attorney’s Office for the Middle District of Alabama from 1990 to 2007,.

The committee also approved the nominations of Claria Boom, a partner at the Lexington, Ky., firm Frost, Brown and Todd, for a seat shared between the U.S. District Court for the Western District of Kentucky and the U.S. District Court for the Eastern District of Kentucky.

The ABA rated Boom qualified, though a minority of the standing committee voted to declare her not qualified. Unlike with Grasz, the ABA did not explain its rating of Boom, who worked as a federal prosecutor in Kentucky from 1998 to 2001 and again in 2002.

The committee also unanimously approved Judge Terry Doughty, who has held a seat as a district judge on the Fifth Judicial District for Louisiana since 2009. Doughty spent nearly 25 years in private practice as an associate and later a partner with the firm Cotton, Bolton, Hoychick & Doughty before taking a seat on the court.

While at the firm, Doughty also worked part-time as a state prosecutor for Richland, Franklin and West Carroll Parishes.

Two other nominees also now await Senate approval to take seats on Kentucky federal courts, with the committee approving Rebecca Grady Jennings, a lawyer for the Louisville, Ky., firm Middleton Reutlinger up for a seat on the U.S. District  Court for the Western District of Kentucky, and Robert Wier, who is up for a spot on the U.S. District Court for the Eastern District of Kentucky.

Wier is currently a magistrate judge on the same court.

The committee also approved John Broomes, an attorney at the Hinkle Law Firm who is nominated to the U.S. District Court for the District of Kansas.

Boom, Jennings, Wier and Broomes were all supposed to testify at the same hearing where senators heard from Willett and Ho, but lawmakers forewent their testimony due to a series of votes that were called in the Senate.

The full Senate still must vote on all 10 of the judges before they are able to take their seats, but the Republican majority makes it highly likely all will receive approval.

 

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