Senate Panel Advances Picks for Second Circuit Bench

WASHINGTON (CN) – The Senate Judiciary Committee advanced five judicial nominees Thursday, including a pick for the Second Circuit who has worked on a closely watched challenge to Harvard’s affirmative action policies.

Michael Park, a partner with the firm Consovoy McCarthy Park in New York since 2015, has worked on several cases involving the admissions practices of higher education institutions, most recently a case against Harvard that is expected to make it to the U.S. Supreme Court.

Park joined the case in 2015, representing a group called Students for Fair Admissions that claims Harvard’s affirmative action policies unfairly disadvantage Asian-American applicants. The son of immigrants from South Korea, Park told senators at his nomination hearing that he faced discrimination when applying for schools and that during his work on the case he talked to others who had similar experiences.

The Harvard case is not the only affirmative action challenge on Park’s record, having also been involved in similar cases against the University of North Carolina and the University of Texas. Park also filed a brief on behalf of a client supporting the Trump administration’s addition of a citizenship question to the census.

Democrats said this work in court raises questions about his ability to be impartial on the federal bench.

“I’m concerned in light of Mr. Park’s advocacy that he will not be able to serve as a fair and impartial trier of fact,” Senator Dianne Feinstein, D-Calif., said Thursday.

But Park objected to the picture Democrats painted of his career, saying he has also done considerable pro bono work, including representing a U.S. citizen the government was attempting to deport after he was convicted of several nonviolent crimes.

“First, my professional experience is far broader and much more diverse than the handful of cases I have been asked about at my hearing and in these questions for the record,” Park wrote in response to questions Senator Sheldon Whitehouse, D-R.I. submitted after his nomination hearing.

Park cleared the Senate Judiciary Committee in a 12-10 vote Thursday morning.

Also advancing along party lines was U.S. District Judge Joseph Bianco, who is also up for a seat on the Second Circuit. A judge on the U.S. District Court for the Eastern District of New York, Bianco faced fewer questions about his record, with most of Democrats’ objections centered on the process by which he came to the Senate.

Bianco is the latest Trump nominee to come before the committee without the support of his home-state senators, giving committee members yet another opportunity to relitigate former Judiciary Committee Chair Chuck Grassley’s policy of allowing nominees to go forward without their home-state senators’ consent.

Under a tradition known as the blue slip, senators had in the past been able to block consideration of a nominee by not returning a form saying they would agreed the nomination should go forward. But Grassley, a Republican, said he would no longer apply the policy to nominees to federal circuit courts so long as the White House showed it consulted with the senators.

Senator Lindsey Graham, the South Carolina Republican who now chairs the committee, has continued Grassley’s policy on the blue slip.

Bianco does not have the support of either Senator Kirsten Gillibrand or Senate Minority Leader Chuck Schumer, both New York Democrats, but has advanced through the committee nevertheless.

As for his record on the bench, Bianco faced several questions from Democrats about a 2014 opinion he issued ruling the Civil Rights Act of 1964 does not cover discrimination on the basis of sexual orientation. The Second Circuit overturned Bianco’s decision, which he said was based on then-binding precedent from the appeals court.

The committee also approved U.S. District Court for the Eastern District of Louisiana nominee Greg Guidry, U.S. District Court for the District of Arizona nominee Michael Liburdi and U.S. District Court for the District of North Dakota nominee Peter Welte.

All nominees now go to the full Senate, where they will await a final confirmation vote. 

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