On September 29, 2017, President Trump nominated Howard C. Nielson to the United States District Court for the District of Utah. Nielson’s nomination continues Trump’s trend of offering lifetime appointments to ideological attorneys and judges.
Alarmingly, Nielson shares with Trump a propensity for attacking judges’ integrity based on personal characteristics. During the presidential campaign, Trump attacked federal judge Gonzalo Curiel and said the judge should recuse himself from a case solely because of his Mexican heritage. Howard Nielson, in taking a leading role in the effort to prohibit same-sex marriage in California, argued that a federal judge should be disqualified from hearing the case because he was gay.
President Trump and Nielson also share records of attacking the independence of the Justice Department. President Trump has demanded loyalty from the FBI director, politicized prosecutorial decisions, and tried to purge non-political law enforcement personnel whom he perceives as insufficiently supportive of his administration. Nielson fits right in: As an official in the Justice Department under George W. Bush, Nielson was part of the “Screening Committee” that impermissibly, as the Department’s Inspector General concluded, “considered political or ideological affiliations” in making non-political hiring decisions and weeding progressive applicants out of civil service jobs.
President Trump’s desire to cater to the wishes of the National Rifle Association (NRA) is reflected in his nomination of Nielson. The NRA broke its own spending records in support of Donald Trump’s presidential campaign, and spent one million dollars on an advertising campaign to support Supreme Court nominee Neil Gorsuch. In return, Trump told the NRA, “You came through for me, I am going to come through for you.” In nominating Nielson, Trump has kept his word. Nielson has been one of the NRA’s go-to attorneys, fighting to eliminate restrictions on guns in public places and limits on assault weapons.
On yet another front, the use of torture, Nielson appears inclined to reinforce the worst impulses of President Trump. Trump has questioned the Geneva Conventions and supported waterboarding, saying, “The problem is we have the Geneva Conventions, all sorts of rules and regulations, so the soldiers are afraid to fight[.]” He has said he wants to “bring back a hell of a lot worse than waterboarding.” Significantly, Nielson worked in the Office of Legal Counsel (OLC) in the George W. Bush Administration when the notorious “torture memos” were issued. In response to criticism of the memos in The Washington Post, Nielson wrote a letter to the editor defending the memos’ author, Stephen Bradbury. In addition, he authored a memorandum that gutted protections for persons in custody under the Geneva Conventions, a memorandum one expert said was based on such “erroneous legal reasoning and conclusions” that it should be “add[ed] . . . to the Legal Scrapheap.”
Finally, Nielson has fought efforts to ensure equality in education for people of color; has advocated against regulating greenhouse gases; has frequently litigated against the Affordable Care Act; and has defended severe burdens on women’s exercise of their reproductive rights.
Alliance for Justice opposes his confirmation.