Senator Sheldon Whitehouse / YouTube Whitehouse Remarks in Judiciary Hearing on...
Senator Sheldon Whitehouse / YouTube

Senate Republicans rammed yet another far-right judicial nominee through the Senate Judiciary Committee by a party-line vote on Thursday. Howard Nielson, whom President Trump intends to install as United States District Court judge for the District of Utah, has raised concerns not just among Democrats or liberal groups, but in military circles.

From 2003 to 2005, Nielson was involved in some capacity in the Bush administration’s efforts to find legal justification for “enhanced interrogation techniques.” He attempted to deflect inquiries into his degree of responsibility in his recounting of this period.

Nielson worked for the Justice Department’s Office of Legal Counsel from 2003 to 2005 under Stephen Bradbury, one of the authors of a series of memos that helped provide legal underpinning for the CIA’s Bush-era interrogation programs. The exact nature of Neilson’s involvement in those memos was unclear at the time of his nomination, but in response to questions from the Senate Judiciary Committee, Nielson acknowledged he had been gave input on “enhanced interrogation techniques,” but explained that final decisions had been left to senior officials.

Nielson wasn’t able to dodge the 2005 document establishing that his efforts to legitimize torture were not merely a matter of a subordinate’s diligence.

[W]hile serving in the OLC, Nielson wrote a memo arguing that the Geneva Convention ought not apply to anyone detained by US forces in Afghanistan. Beth Van Schaack, former war crimes expert at the U.S. Department of State who has written extensively about Nielson’s memo, argues that “if Nielson’s theory of the treaty were to prevail, United States personnel could torture civilians—so long as they did so outside the United States—without breaching the treaty.”

Nielson’s stance on interrogation, torture, and the Geneva Convention so alarmed three former high-ranking military officers that they wrote a letter to Republican Sen. Chuck Grassley of Iowa, Judiciary Committee chairman, indicting Nielson’s extralegal rationale.

His record on domestic concerns is no better. Nielson defended Proposition 8, the California anti-marriage equality measure. To be clear, it’s not just that he defended Proposition 8.

As part of the team defending California’s voter-approved 2008 ballot initiative banning gay marriage, Proposition 8, Nielson filed a motion to vacate a district court’s judge’s decision knocking down the ban, arguing that the judge may not have been impartial because he “was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced).”

Democratic senators on the judiciary committee zeroed in on Nielson’s outrageous motion in the Proposition 8 case. Unfortunately, however, they also noted how consistent Nielson’s action was with his future nominator’s beliefs about judicial bias.

“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.”

The Judiciary Committee also approved the nominations of Kurt Engelhardt, nominated to the Fifth Circuit; 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.

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This is a Creative Commons article. The original version of this article appeared here.


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