Third Circuit Nominee Tries to Walk Back Past Comments, Writing

WASHINGTON (CN) – Appearing before the Senate Judiciary Committee on Wednesday, President Donald Trump’s nominee to the Third Circuit defended himself against Democrats’ attacks about his conservative record.

David Porter, who is up for a seat on the Philadelphia-based Third Circuit, told the Senate Judiciary Committee his public writings questioning the constitutionality of the federal health care law and other comments he made while in private practice will not impact his decision-making on the federal bench.

“Lawyers who aren’t judicial nominees are free to make comment, lawyers who are nominees are not so much at liberty to make comment,” Porter said. “And there’s a difference between, you know, giving advice and taking orders and in that instance I gave my advice and if confirmed it would be my turn to take orders.”

Porter appeared before the Judiciary Committee Wednesday despite not receiving the approval of Sen. Bob Casey, D-Pa. Under the tradition known as the blue slip, the committee has in the past declined to schedule hearings for nominees who do not receive the approval of both of their home state senators.

But Sen. Chuck Grassley, the Iowa Republican who chairs the committee, has said he will not allow a single senator to hold up a judicial nomination unless they show the White House did not consult them on a vacancy.

In an April statement on the Pittsburgh attorney’s nomination, Casey said the White House nominated Porter despite Casey’s clearly articulated objections to his record.  In another statement on Wednesday, Casey noted he signed off on Trump’s other nominee to the Third Circuit, Judge Stephanos Bibas, despite concerns about his judicial philosophy.

“Instead of working in a bipartisan fashion to put mainstream individuals on the bench, this administration and the Senate majority leader are demanding that the Senate confirm judicial nominees who advocate a hard-right ideology to appease their corporate donors,” Casey said in a statement. “As a senator representing more than 12 million Pennsylvanians, I refuse to be a rubber stamp for the extreme right.”

Casey does not sit on the Judiciary Committee, but his Democratic colleagues took the opportunity to probe Porter’s background, particularly delving into his public writings and ties to controversial groups.

Senators specifically dug into a trio of articles Porter penned around the time the Supreme Court was hearing a challenge to the Patient Protection and Affordable Care Act’s individual mandate. One of the articles Porter wrote for the Pittsburgh Post-Gazette argued the Obama administration was defending the requirement that most people buy health insurance using an overbroad reading of the Constitution’s commerce and necessary and proper clauses.

“Congress could require people to buy a car because refraining from doing so is an ‘economic decision’ substantially affecting the automobile industry,” Porter wrote at the time. “Congress could require us to purchase a television or a computer because engaging in quiet reflection rather than watching TV or surfing the internet is an ‘economic decision’ that substantially affects national markets for entertainment and communication.”

In a later article for the Center for Vision and Values at Grove City College, Porter called the government’s argument in the case a “metaphysical abstraction” that “threatens not merely to further stretch, but finally to break the framers’ structural design that for 225 years has preserved individual liberty and served as a check on unlimited federal power.”

When the Supreme Court handed down its 5-4 decision upholding the law’s constitutionality, Porter wrote that the ruling “sits uneasily with the law’s history, structure and text.”

Porter told senators on Wednesday that those articles were an academic exercise and that he would have no trouble implementing the Supreme Court’s precedent from the case.

But some lawmakers found it difficult to believe Porter would so easily be able to put aside his personal legal opinions on the bench, especially in cases where the applicable precedent is not readily apparent.

“I think it’s very difficult for us to conclude that strongly held positions of any of the nominees, yourself included, would not be guided by positions that you have taken in the past where precedent is not crystal clear,” Sen. Mazie Hirono, D-Hawaii, said Wednesday.

Porter also faced questions about his work for a Pennsylvania group founded in part to oppose Supreme Court Justice Sonia Sotomayor’s nomination. While the liberal Alliance for Justice says Porter was a founding member of the Pennsylvania Judicial Network, when asked about the group on Wednesday, Porter said his involvement was limited to a phone call that lasted 15 seconds.

Porter explained he received a phone call from someone with the conservative Judicial Crisis Network who indicated the group was considering starting up a project in Pennsylvania. Porter told the caller he would be available to participate in a second call about the project, but the second call never happened and Porter had no further contact with the group.

Porter said he learned in 2014 that his name was on a letter on the Pennsylvania Judicial Network’s website, but told senators he did not “authorize or agree to” having his name appear on the site.

Porter also distanced himself from a press release the group sent out calling Sotomayor an example of “judicial elitism.”

A spokesperson for the Judicial Crisis Network did not immediately return a request for clarification of Porter’s involvement with the organization. A link to a press release announcing the creation of the Pennsylvania Judicial Network on the Judicial Crisis Network’s website no longer works and archived versions of the site could not be accessed.

The longtime president of the Pittsburgh chapter of the conservative Federalist Society, Porter also faced questions on Wednesday about his involvement with Grove City College,  a small Christian liberal arts college in Grove City, Pa.

Hirono pressed Porter about the school’s placement on a list of the nation’s least LGBT-friendly campuses, asking whether Porter believes the anti-discrimination provisions of Title IX extend to sexual orientation. Porter declined to answer, saying he would not want to prejudge an issue that is likely to come before him on the bench.

Porter has worked at the Pittsburgh firm Buchanan Ingersoll & Rooney since 1994, becoming a shareholder in 2002.  Porter primarily focuses on business litigation at the firm, but also works on cases touching on other issues, including civil rights and copyright law.

The committee also heard from five nominees for federal courts across the country on Wednesday, though they faced more limited questioning than Porter.

Sen. Richard Blumenthal, D-Conn., questioned U.S. District Court for the Middle District of Alabama nominee Andrew Brasher about his involvement in cases touching on controversial issues from gay marriage to gun control while he was serving as deputy solicitor general and later solicitor general of Alabama.

Brasher said he took those positions as part of his job representing the state and not because he necessarily agreed with them. He told Blumenthal his role would change if he were approved to the federal bench.

“I think it’s my role, ethically, as an advocate for my client to vigorously defend my client’s interests,” Brasher said. “I’ve done that for the state, and I did it as well when I was in private practice handling court-appointed criminal defendant cases.”

Senators also heard from U.S. District Court for the Northern District of Indiana nominee Holly Brady, U.S. District Court for the Southern District of Indiana nominee James Hanlon, U.S. District Court for the Southern District of Texas nominee David Morales and U.S. District Court for the District of Maine nominee Lance Walker.

All of the nominees who testified Wednesday must now wait for a vote before the Senate Judiciary Committee, the final step before they go before the full Senate for confirmation.

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