One Rule for Democrats, Another for Republicans?
This is a break from the bipartisan tradition that we do not hold lawyers accountable for the clients they represent and any animus one may harbor against them.”
Sen. Thom Tillis, supporting President Trump’s nomination of Thomas Farr to the Eastern District of North Carolina
“Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Sen. Chuck Grassley, opposing President Obama’s nomination of Caitlin Halligan to the D.C. Circuit.
“I remain concerned with Mr. Adegbile’s ability to set aside more than a decade of advocacy on behalf of this and other liberal causes to serve as a neutral enforcer of our Nation’s civil rights laws.”
Sen. Jeff Flake opposing President Obama’s nomination of Debo Adegbile to be Assistant Attorney General for Civil Rights.
What a difference a year makes. After twelve months of Senate Judiciary Chair Chuck Grassley’s rubber-stamping of Trump judicial nominees, it is clear that Republicans believe there is one set of rules for Obama nominees and another set for Trump nominees. Under Obama, Republicans vigorously fought for the rights of home-state senators, extensively used the blue slip to block nominees, refused to consider nominees that had admitted to ever using marijuana, required the Office of Legal Counsel to disclose opinions written by nominees before their confirmation, and insisted on multiple hearings for certain nominees. Under Trump, Grassley quickly discarded all of these traditions and requirements.
And now, as is evident in the cases of Howard Nielson’s and Thomas Farr’s nominations, another double standard can be added to the list: Under Obama, for Republicans, legal arguments a nominee made as an attorney representing a client were highly relevant and in many cases disqualifying. Nominees such as Caitlin Halligan and Debo Adegbile were not confirmed because of positions they took as lawyers in litigation on behalf of clients.
For Republicans, that changed on January 20, 2017. Now, with Donald Trump as President, Republicans believe the exact opposite. Conveniently, this has allowed them to defend one nominee who insisted a judge should have recused himself because the judge was gay, and another nominee who has spent his entire career undermining the voting rights of African Americans in North Carolina.
Howard Nielson is nominated to the District Court in Utah. In 2001, he defended, on behalf of ProtectMarriage.com, California’s Proposition 8, which would have prohibited same-sex couples from marrying in the state. After the district court ruled that Proposition 8 was unconstitutional, Nielson filed a motion to vacate the judgment. Nielson argued that Chief Judge Vaughn Walker, a Reagan appointee, “had a duty to disclose not only the facts concerning his [same-sex] relationship, but also his marriage intentions.”
As journalists and attorneys quickly pointed out, this was another in a long line of meritless and discredited attempts to use the federal recusal statutes to discriminate against judges who are women, people of color, or LGBTQ, based on their status.
Kamala Harris, who was then the California Attorney General, wrote in a brief opposing the motion: “Just as every single one of the attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been rejected by other courts, this Court should similarly reject Defendant-Intervenors’ effort to disqualify Judge Walker based on his sexual orientation.”
A judicial nominee who tried to argue that LGBTQ judges must overcome an assumption of bias was bound to get the attention of the U.S. Senate. Yet, when the Judiciary Committee finally questioned Nielson about this repugnant argument, he dodged: “[t]he views I express in litigation are those of my clients.”
Republican senators agreed; the fact that Nielson advocated open discrimination based on sexual orientation was just not relevant to his confirmation, they argued. Sen. Mike Lee emphasized that “the job of a lawyer is to represent his or her client zealously and within the capacity for which the lawyer has been retained.” Sen. Orrin Hatch asked Nielson whether “the views that a lawyer expresses in litigation belong to him or his clients?” To which Nielson dutifully responded, “his clients.”
The same argument was used to defend Thomas Farr, Trump’s nominee to the District Court for the Eastern District of North Carolina. Despite the fact that Farr defended racial gerrymandering, advocated for voting laws that “target[ed] African Americans with almost surgical precision,” and supported a state law that eliminated every employment discrimination claim in state court, every Republican in the Judiciary Committee voted for his confirmation.
In defending Farr, Sen. Thom Tillis wrote that holding Farr accountable for his arguments “is a break from the bipartisan tradition that we do not hold lawyers accountable for the clients they represent and any animus one may harbor against them.”
What bipartisan tradition is Tillis referring to? The fact is that Republican senators criticized, and sometimes derailed, the nominations of many of President Obama’s nominees because of their representations of clients.
For example, Republicans opposed Caitlin Halligan’s confirmation to the D.C. Circuit because, as New York’s solicitor general, she advocated for the state in a case against gun manufacturers. Sen. Grassley opposed Halligan because she “advanced [a] novel legal theory” in court. While acknowledging that some “argued that we should not consider this aspect of Ms. Halligan’s record, because at the time she was working as the Solicitor General of New York[,]” Grassley still opposed her because “no one forced Ms. Halligan to approve and sign [the] brief.”
Likewise, Republicans attacked another judicial nominee, Edward Chen, because he worked at the ACLU. Grassley dismissed those who “argued that we should not consider his work for the ACLU” because “it is hard to imagine why Judge Chen would devote so much of his professional career to the ACLU causes, if he did not believe in them deeply.” President Obama’s nominee to the District of Colorado, William J. Martinez, met similar opposition from then-Senator Jeff Sessions, who accused him of having “ACLU DNA.”
Republicans also attacked judicial nominee John McConnell, because he served as an attorney in lawsuits against the tobacco industry and manufacturers of lead-based paints that were ingested by children. Sen. Mitch McConnell described John McConnell’s legal work as “[a] legal career…marked by a pervasive and persistent hostility to American job creators.” Sen. McConnell opposed the nominee because he advanced a “frivolous legal theory” on behalf of his clients.
Nor was this approach limited to President Obama’s judicial nominations. For example, the same attacks were used against Debo Adegbile, who was nominated to serve as the Assistant Attorney General for the Civil Rights Division in the Department of Justice. Regarding Adegbile, Grassley opined that “the President’s nominee can’t be so committed to political causes, and so devoted to political ideology, that it clouds his or her judgment.” And McConnell insisted that Adegbile should not be confirmed because of his work as a lawyer, which he characterized as “a long record of left-wing advocacy, marked by ideologically-driven positions and poor judgment.” These remarks were based largely on a single case in which the NAACP Legal Defense Fund filed briefs seeking to protect the constitutional rights of a death-row inmate. Senator Jeff Flake claimed he “remain[ed] concerned with Mr. Adegbile’s ability to set aside more than a decade of advocacy on behalf of this and other liberal causes to serve as a neutral enforcer of our Nation’s civil rights laws[,]” because of Adegbile’s advocacy as a lawyer.
The contrast here is stark and inescapable. Apparently, when a Democratic President’s nominee represents a client or makes a legal argument that Republicans disagree with, that is disqualifying. But when a Thomas Farr spends thirty years fighting to make it harder for African Americans to vote, or a Howard Nielson advances a legal theory to disqualify a judge because of his purported sexual orientation, thus “raising the ugly specter of judicial bias based on status[,]” they’re just doing their jobs.