- The Washington Times
Thursday, February 8, 2018

The Senate Judiciary Committee approved four more of President Trump’s federal court nominees Thursday, setting them up for future confirmation votes on the chamber floor.

Three of the nominees received bipartisan support, but one of the judges only made it through on a party-line vote of 11-10.

Democrats on the committee protested Howard Nielson Jr., who is nominated to the U.S. District Court for the District of Utah, because of his role defending California’s Proposition 8, which had banned same-sex marriage.

As a lawyer in the case, Mr. Nielson had questioned whether the judge should recuse himself because he was homosexual, and would have an interest in the outcome of the case.

“The idea that someone cannot be impartial simply because of their sexual orientation should be antithetical of our federal judiciary,” said Sen. Dianne Feinstein of California, the ranking Democrat on the committee.

Ms. Feinstein said it reminded her of Mr. Trump’s controversial comments about a judge, who was born in Indiana but is of Hispanic heritage. As a candidate, Mr. Trump had suggested the judge would be biased against him.

Sen. Kamala Harris, California Democrat, was the state’s attorney general at the time of the legal challenge over the proposition, and called Mr. Nielson’s request “nothing more than a thinly veiled attempt to disqualify judges based on their race, gender, religious affiliation, or in this case sexual orientation.”

Ms. Feinstein also raised issues over Mr. Nielson’s role when he worked at the Justice Department prior to entering private practice.

He was deputy assistant general at the Office of Legal Counsel for the Justice Department and participated in the review of two torture memos in 2004 and 2006.

During his confirmation hearing, he refused to answer one of her questions about his position on the memo due to attorney-client privilege.

But Utah’s home state senators, both Republicans, defended Mr. Nielson.

Sen. Mike Lee said Ms. Feinstein’s assertions about Mr. Nielson’s involvement with drafting the memos is “manifestly contrary to fact” and that he worked to rescind one of them.

“I don’t know how you get from there to somehow suggesting that he supports this,” Mr. Lee said.

Sen. Orrin Hatch defended Mr. Nielson’s position in the Proposition 8 case, saying he was zealously arguing the case for his clients.

“He doesn’t have a bias in his heart. He was part of a legal team that defends the constitutionality of Prop. 8.” said Mr. Hatch. “He should not be condemned for having worked at that level.”

The committee also cleared Kurt Engelhardt for the 5th U.S. Circuit Court of Appeals, Barry Ashe for the U.S. District Court for the Eastern District of Louisiana and James Sweeney II for the U.S. District Court for the Southern District of Indiana.

Including the nominees cleared by the committee Thursday, there are 26 judicial nominees awaiting confirmation votes in the Senate.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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