Sixth Circuit Nominee Declines to State Position on Roe

WASHINGTON (CN) – President Donald Trump’s selection to serve on the Sixth Circuit declined to say on Wednesday whether he believes the Supreme Court rightly decided Roe v. Wade, suggesting it would be inappropriate to weigh in on a case inspiring live issues that might come before his court.

While John Nalbandian emphatically told Sen. Richard Blumenthal, D-Conn., of the Senate Judiciary Committee, that the high court correctly decided the landmark cases of Loving v. Virginia and Brown v. Board of Education, he said it would be inappropriate for him to comment on whether the decision finding women have a constitutional right to an abortion was a good one.

Nalbandian explained that while he is highly unlike to see a challenge to Loving, which struck down laws against interracial marriage, or Brown, which held racial segregation in schools is unconstitutional, the Sixth Circuit could see a suit that touches on the issues raised in Roe v. Wade. He said he would not want to make any comments that would call his impartiality into question if he had to hear such a case.

“What I’m saying is that I think that the area generally of modern substantive due process or unenumerated rights, specifically under the due process clause of the Fifth and 14th Amendments, is still subject to developing case law,” Nalbandian said. “I mean, we see it all the time and I think I’m unwilling to wade into that because I do think that issue can and will come up.”

Nalbandian said he would be bound to follow the Supreme Court precedent laid out in Roe, but that other cases could come before him on the Sixth Circuit that raise generally similar issues.

Blumenthal was confused why Nalbandian so easily affirmed the decisions in Loving and Brown while demurring on Roe.

“With all due respect, I fail to understand why Roe v. Wade is less well-established, less well-accepted, less well-entrenched or enshrined in our law than Loving v. Virginia,” Blumenthal said.

Blumenthal’s questions came after Nalbandian and Sen. John Kennedy, R-La., had a detailed discussion on originalist legal theory. Nalbandian explained his view of originalism is that judges should look to the “values and the principles” that a text embodied at the time it was adopted. As a result, he firmly said both Loving and Brown rest on sound originalist ground.

A partner at the Cincinnati firm Taft Stettinius & Hollister and a member of the conservative Federalist Society, Nalbandian also faced questions about a friend of the court brief he penned in support of an Indiana voter ID law.

He explained studies supported the contention in the brief that the law did not disproportionately disadvantage minorities, but declined to say whether he agreed with the claim, saying it simply represented his client’s position in the case.

The questions from Blumenthal were some of the most pointed the Kentucky lawyer faced during his nomination hearing on Wednesday, which was less contentious than most hearings for Trump’s nominees to federal appellate courts.

Nalbandian has been with his current law firm since 2000, having previously worked as an associate at the Washington D.C., firm Jones Day. President Barack Obama nominated Nalbandian in 2010 to serve on the board of the State Justice Institute, a nonprofit with a Senate-confirmed board of directors that awards grants to state courts.

In addition to Nalbandian, the Judiciary Committee on Wednesday heard from three federal court nominees and Joseph Hunt, who is nominated to lead the Justice Department’s Civil Division. Hunt served as Attorney General Jeff Sessions’ chief of staff from February to October 2017 and many of the questions posed to him at Wednesday’s hearing focused on his time with the attorney general.

Senators pressed Hunt to clarify Sessions’ recusal from matters related to Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election, as well as his role in Trump’s decision to fire former FBI Director James Comey.

Hunt confirmed he was in the room when Comey asked Sessions not to leave him alone with Trump and corroborated a description of the meeting Sessions gave to the Senate Intelligence Committee last year. Hunt emphasized he too is recused from anything related to the Mueller probe and told Sen. Sheldon Whitehouse, D-R.I., that the job of enforcing Sessions’ recusal falls to Deputy Attorney General Rod Rosenstein because it was his call to appoint the special counsel.

“I can tell you that in my time in the attorney general’s office, nothing with respect to this matter came up to the attorney general’s office,” Hunt said.

Hunt fielded the majority of questions from senators during his time before the committee Wednesday, with the judges sailing through the hearing with little resistance.

Two of the nominees, U.S. District Court for the District of Connecticut nominee Kari Dooley and U.S. District Court for the District of Hawaii nominee Jill Otake, came with the support of Democratic senators who represent their home states.

Dooley has served as a judge on the Connecticut Superior Court since 2004, having spent the previous 13 years as a federal prosecutor in the state. Sen. Chris Murphy, a Connecticut Democrat who introduced Dooley, said Dooley embodies the familiar legal standard of the “reasonable observer,” while Blumenthal said she has a reputation of “integrity and intellect and fairness that certainly is unexcelled on our state bench.”

Otake, who has worked as a federal prosecutor in Hawaii since 2014, received similar support from Hawaii Democrats Sens. Brian Schatz and Mazie Hirono. Otake worked as a federal prosecutor in Washington state from 2005 to 2014, having also spent time in various roles at the Kings County Attorney’s Office from 1997 to 2005.

Dominic Lanza, a federal prosecutor in Arizona who is up for a seat on the U.S. District Court for the District of Arizona, also appeared before the committee on Wednesday, but faced limited questions. Lanza was involved in prosecuting the man who murdered six people and injured 13 others, including Rep. Gabrielle Giffords, outside of a grocery store in Tucson, Ariz. in 2011.

Lanza said the prosecution was an important case in his career, but declined to comment when Blumenthal asked him if the experience made him more supportive of gun control efforts.

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