Issue:  Vol. 48 / No. 3 / 18 January 2018

Waiting game for judicial nominees


Nominee J. Paul Oetken
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It looked like a cake-walk: President Barack Obama nominated openly gay attorney J. Paul Oetken to a federal district court in Manhattan two months ago, and just last week, he had a confirmation hearing. No one objected; no one had a tough question; no challenges to his ability to serve as an impartial judge, no matter what the case.

But there were no Republicans at that confirmation hearing, and Republicans have been maximizing their ability to stall nominees by asking for more time to "review" the nominees' answers to various additional questions – questions on things such as same-sex marriage.

Senator Charles Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, has been leading the charge. Grassley did show up briefly to Oetken's March 16 hearing, just long enough to make remarks welcoming the nomination of another Iowa native. Oetken, 45, was raised in Cedar Rapids.

But Grassley's remarks don't guarantee his vote and the following day, Grassley engaged in a pelting match with Committee Chairman Patrick Leahy (D-Vermont) over which party has stalled the most nominees of which president.

Grassley and other Republicans on the Senate Judiciary Committee have made fairly clear that confirmations are war. They have blocked votes on many of Obama's nominees as payback for when Democrats blocked votes on the nominees of Republican President George W. Bush. They have used confirmation hearings to harangue publicly Obama's decision to stop arguing that there is a compelling justification for the Defense of Marriage Act.

They have quizzed numerous nominees over whether they believe the U.S. Constitution guarantees same-sex couples the right to marry.

None of them stayed to ask Oetken how he feels about that issue, but during a business meeting of the committee the next day, Senator Jeff Sessions (R-Alabama) claimed that an Obama nominee to be deputy attorney general, James Cole, must be supportive of the administration decision not to defend DOMA.

Sessions claimed that law enforcement officials, such as Cole, have a "throw up" obligation to defend the law.

"The old rule about defending a statute," said Sessions, who served as Alabama's attorney general before entering the Senate, "is you should have a duty to defend the law of Congress unless to do so would cause you to throw up [while] making the argument. They used to call it the throw up rule."

Instead, said Sessions, the Obama administration law officials are "elevating their own preferences on social policy over the Constitution, the will of Congress, and the American people." He said the administration has "consistently refused to meaningfully defend" DOMA or "Don't Ask, Don't Tell." He did not mention that Congress voted in December to repeal DADT, the law that bars gays from serving openly in the military. He also failed to note that the Obama administration is defending DOMA in the 1st U.S. Circuit, where it believes only a simple, rational reason for the law is necessary for its defense. The administration's announcement concerning the defense of DOMA includes only those courts in which the level of scrutiny the law deserves has not yet been settled by the courts. In those jurisdictions, the Obama administration intends to argue that a compelling justification is required and that DOMA does not meet that standard.

 For his part, Oetken did refer to his partner during his introductory remarks to the two Democratic senators who did stay for the hearing. And one of those senators, Charles Schumer of New York, made note that Oetken's nomination puts him in position to become the first openly gay man to be confirmed to the federal bench.

There was no conversation at either meeting last week about another historic nominee – President Obama's openly gay nominee to the federal circuit. If confirmed, Edward DuMont would become the first openly gay person appointed to a federal appeals court bench.

But the committee has not scheduled a confirmation hearing for DuMont – even though he was nominated almost a year ago. Republicans on the committee are said to be "reviewing" his confirmation papers.

Republicans have not presented DuMont with additional questions, as they have other appeals court nominees.

Other nominees

Frequently, Senator Tom Coburn (Oklahoma) has asked nominees whether they believe judicial doctrine rightly incorporates the evolving understandings of the Constitution forged through social movements, legislation, and historical practice? Such a question could be referring to any number of controversial issues. Nominee James Graves responded as many other nominees have, saying he didn't agree with the "premise" of the question "that there are evolving understandings of the Constitution." The full Senate approved his confirmation to the 5th Circuit last month on a voice vote.

Sessions took the more specific approach, asking Caitlin Halligan, nominated to the U.S. Court of Appeals for D.C., whether she believes the "original intent" of the 14th Amendment "supports recognition of a constitutional right to same-sex marriage or of a constitutional obligation on the part of any government not to define marriage as the union of a man and a woman?"

Halligan, like Graves, simply dodged the question, stating only, "The Supreme Court has not determined" the answer to that question and that it is a subject of "active litigation."

Presented with essentially the same question, Goodwin Liu, a nominee to the 9th Circuit who has been targeted by conservatives for opposition, also tried to dodge it. But several Republican senators noted that Liu had written a brief to the California Supreme Court supporting a challenge to Proposition 8. Liu insisted that his brief did not argue for same-sex marriage, but rather argued simply that the state's definition of same-sex marriage violated the state constitution at the time.

Liu took great pains to emphasize that he has made no public argument or expressed no view publicly concerning whether limited definitions of marriage violate the federal constitution.

"I have not previously expressed any view on whether the federal Constitution confers a right to same-sex marriage," said Liu, in response to written questions from Grassley, "and because that issue may come before me as a judge if I am confirmed, I believe it is not appropriate for me to do so now."

The committee voted to recommend Halligan's nomination on March 10 and sent it to the full Senate where it awaits action. Liu's nomination is still awaiting a committee vote. It is scheduled to come up at the next committee business meeting, March 31. The committee is scheduled to hold a hearing on nominations March 30, but no list has yet been posted to indicate which nominees will be up.

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