Washington • A nominee to be a federal judge for Utah came under sharp criticism on Wednesday by Democratic senators for his work on terrorism suspects held abroad and on a motion to set aside a ruling for same-sex marriage on grounds the judge didn’t disclose he was gay.
Republicans, on the other hand, lauded Howard Nielson Jr. as an ideal pick for the federal bench and defended his past work for California’s Proposition 8 to ban same-sex marriage and the memo he wrote at the Justice Department on prisoner combatants as representing clients’ wishes.
Nielson, the son of a former Utah congressman, told the Senate Judiciary Committee that he wrote one memo — arguing that the Geneva Convention only protected civilians in enemy custody held on U.S. territory, not abroad — but not two others dealing with torture that were authored by other lawyers.
He said those torture memos were later withdrawn and “rightfully so.”
And he said that in the Proposition 8 case, where he was part of a legal team, he didn’t make the final determination to file the motion seeking to set aside the pro-gay-marriage ruling. He added that the motion was about disclosure, not the judge’s sexual orientation.
“The views I express in litigation are those of my clients,” Nielson said. “No one needs to recuse themselves because of their status.”
Democratic Sen. Kamala Harris, the former California attorney general, quizzed Nielson on whether a female judge overseeing a case about abortion would have to disclose whether she’s personally had an abortion.
“The law is clear that no one needs to recuse based on status,” Nielson said.
He added under further questioning by Harris that he did not believe sexual orientation was a choice, as the legal team he was a part of had argued in the Prop 8 case.
Sen. Chris Coons, D-Del., took Nielson to task over the Justice Department memos, asking the nominee if he backs the argument that the Geneva Convention protections against torture don’t apply outside the United States.
“Senator, those memos have been withdrawn and rightfully so,” Nielson said of the two memos he didn’t write, noting a Supreme Court ruling that made them moot.
Nielson, a partner at the Washington law firm of Cooper & Kirk who earned his undergraduate degree at Brigham Young University and law degree at the University of Chicago, was nominated by President Donald Trump in September. If confirmed, he would fill a vacancy in the Utah federal court created when Judge Ted Stewart took senior status four years ago. Senior judges are only required to hear a portion of the caseload of active judges.
Sen. Orrin Hatch, R-Utah, said Nielson has a solid reputation in the legal community and deserves to be confirmed.
“This nominee has experience in private practice and government, and has risen to the highest level of excellence in each of these areas,” Hatch said. “I think that’s what we should look for in judges.”
Sen. Mike Lee, R-Utah, said he’d known Nielson for more than 20 years and “I’ve never known a smarter, more capable and genuinely decent attorney in my time as a lawyer.”
Lee added that, if confirmed, Nielson would be one of the “truly great minds of the judiciary.”
A substantial majority of the American Bar Association committee on the federal judiciary rated Nielson qualified as a nominee; a minority of the bar committee rated him not qualified.
The Leadership Conference on Civil and Human Rights wrote to senators this week urging them to reject Nielson.
The Judiciary Committee is expected to vote on Nielson’s nomination in the coming weeks.
While there were three other nominees appearing before the committee on Wednesday, the focus remained on Nielson.
Sen. Richard Blumenthal, D-Conn., said Nielson’s response about doing a client’s wishes was only part of the story.
“I respect your point that we represent our clients … but we do choose our clients,” Blumenthal said. “We do pick the arguments we use on behalf of our clients.”
Sen. John Kennedy, a Louisiana Republican who had been a vocal critic of another judicial nominee with Utah ties, came to Nielson’s defense on Wednesday.
“Mr. Nielson, let’s kinda just cut to the chase here: Do you care if somebody is gay?”
“I do not,” Nielson replied.
“And if you’re confirmed to the United States District Court, will it matter to you if a litigant is gay?”
“Of course not.”
Nielson had clerked for Supreme Court Justice Anthony Kennedy and for Judge J. Michael Luttig of the 4th Circuit Court of Appeals. His father, Howard C. Nielson, served as a congressman from Utah from 1983 to 1991. He also served in the state Legislature for 12 years, both before and after his stint in Congress.
In 2015, President Barack Obama had nominated former Centerville mayor Ronald Russell for the vacancy on the Utah federal court, but the Senate never voted on his confirmation.
