Senate Presses 2nd Circuit Nominee on Conservative Causes

WASHINGTON (CN) – Highlighting the nominee’s work against affirmative action policies at Harvard, Senate Democrats demanded assurances Wednesday that lawyer Michael Park would make an impartial judge.

Democrats on the Senate Judiciary Committee, from left, Sen. Dick Durbin, D-Ill., Sen. Sheldon Whitehouse, D-R.I., and Sen. Amy Klobuchar, D-Minn., and other minority members, on Sept. 4, 2018. (AP Photo/J. Scott Applewhite)

“Is there anything in your experience or record that would allay the suspicion that you may be going onto the court in order to promote ideology rather than do justice?” Senator Sheldon Whitehouse, D-R.I., asked this morning in a hearing for Park, who is up for a judgeship on the Second Circuit.

The Yale and Princeton-educated Park has been a named partner since 2015at the firm Consovoy McCarthy Park in New York, where he has worked on multiple cases that advocate conservative legal positions.

Of specific interest to Democrats this morning was Park’s representation of the group Students for Fair Admissions in court case that challenged Harvard University’s affirmative action program. 

The case, which is expected to go to the Supreme Court, involves allegations that race-based admissions practices in higher education unfairly disadvantage Asian-American applicants.

Park has worked on similar cases and also filed a brief on behalf of a group that supports the Trump administration’s decision to add a citizenship question to the 2020 census. All told, Park’s work as a lawyer has put him in the middle of many legal fights over contentious issues.

A former law clerk to Supreme Court Justice Samuel A. Alito, Park testified before the Senate on Wednesday that his advocacy of a client’s case would not offer insight to his own views.

“My personal views about the client’s arguments or policy positions are not part of what I do as a lawyer,” said Park, whose parents emigrated from South Korea. “I represent their interest zealously within the bounds of the law.”

But Park also said he faced racial discrimination himself while applying to school. As part of his work in the Harvard case, he said he spoke to other people who had similar experiences.

Democrats were not satisfied with Park’s answers to their questions about his litigation work, which were similar to those they have received from other Trump administration nominees who have worked on contentious court fights.

“The entire purpose of the questions that we ask of all of our nominees is whether these very strongly held views and advocacy positions that you’ve taken, whether these positions can be set aside to be an objective judge,” said Senator Mazie Hirono, a Hawaii Democrat. 

Republicans came to Park’s defense, noting lawyers must advocate the positions of their clients, regardless of whether they agree with them.

“As a litigator, you don’t necessarily share the views of the people – in fact very often, having been a litigator myself, I can say that you might disagree quite strongly with the views of the people, or the litigating positions even, of the people you represent, but it’s your job to represent them fairly and effectively,” said Senator Josh Hawley, a Missouri Republican.

In addition to working at his firm, Park serves as an adjunct professor at the Antonin Scalia Law School at George Mason University. Park actually clerked twice for Alito, first when the conservative justice was on the Third Circuit and again in 2008 on the Supreme Court.

Apart from questions to Park that otherwise dominated the morning, Wednesday’s hearing also involved the nomination of fellow Second Circuit nominee Joseph Bianco.

Bianco has served as a district judge on the U.S. District Court for the Eastern District of New York since 2006, having also spent a decade as a federal prosecutor in Manhattan. 

Bianco faced few questions at the hearing, though he sparked yet another in a series of debates about the committee’s handling of nominees who do not have the support of their home-state senators. 

Under the tradition known as the blue slip, the Senate Judiciary Committee has in the past not considered judicial nominees unless their home-state senators consent. During the first two years of the Trump administration, however, the committee under then-Chair Chuck Grassley began considering nominees to federal appeals courts without the approval of their home-state senators.

Senator Lindsey Graham, the South Carolina Republican who now chairs the committee, has said he will continue this practice. Both Graham and Grassley said nominees to federal district courts will not go forward if their home-state senators object.

Neither Park nor Bianco enjoy the support of their home state senators, New York Democrats Chuck Schumer and Kirsten Gillibrand.

Democrats have said the policy has done away with the incentive for the White House to consult with senators on judicial picks from their states, leading to more ideological candidates on the bench.

“I think this was a terrible mistake by our friends on the other side to eliminate that authority of senators,” Whitehouse said. “I don’t think there’s really any way to bring it back. If the side that undid the blue slip doesn’t restore the blue slip, it’s hardly likely that we would.”

But Republicans have defended the policy and say it is a logical extension from the decision Democrats made in 2013 to do away with the filibuster for most judicial nominees.

“You guys made this decision in 2013,” Senator Ben Sasse, R-Neb., said Wednesday. “The blue-slip tradition is just a tradition. It’s an important one, minority protections are important, but you’re talking about a small matter — the blue slip tradition — and the big 2013 decision was you guys chose to go to 51 votes. This is just a footnote on that.”

The committee also heard Wednesday from three federal district court nominees – Eastern District of Louisiana nominee Greg Guidry, District of Arizona nominee Michael Liburdi and District of North Dakota nominee Peter Welte.

This trio faced few questions during the hearing, and perhaps the event with the most impact on their nominations took place in another room on Capitol Hill, as Republicans advanced a plan to speed up consideration of judicial nominees.

The rules, which passed the Senate Rules Committee vote Wednesday morning, would reduce from 30 hours to 2 hours the amount of time the Senate must wait after a procedural vote to vote on a judge’s confirmation.  The package applies to federal district court nominees, as well as to nominees to the Court of Federal Claims and certain executive branch positions.

The full Senate must still approve the rules change.

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