The Senate inched closer to making Howard Nielson Jr. a lifetime federal judge on Tuesday, despite objections from Democrats over his record of defending bans on same-sex marriage and authoring a memo that legally justified torturing civilians.
The Senate voted 52 to 47 to advance Nielson’s nomination to the U.S. District Court for the District of Utah. Every Republican but one, Sen. Susan Collins (Maine), voted for him. Every Democrat present voted against him. Sen. Michael Bennet (D-Colo.) did not vote.
A final confirmation vote is set for Wednesday.
Nielson, a partner at the Washington, D.C.-based law firm Cooper & Kirk and a former deputy assistant attorney general under President George W. Bush, sparked controversy in 2010 during his defense of Proposition 8, California’s ban on same-sex marriage. When the state’s governor and attorney general refused to defend Prop 8, the official sponsors of the ballot initiative had intervened in the case and hired Nielson’s firm. The matter went all the way to the Supreme Court, which in 2013 effectively overturned the ban.
In that case, Nielson argued that sexual orientation is a choice and disputed the evidence that discrimination against LGBTQ people leads to higher rates of depression and suicide. According to the National Alliance on Mental Illness, LGBTQ people are nearly three times as likely to experience major depression or anxiety compared to straight people.
When a U.S. district court ruled in 2010 that Prop 8 violated the Constitution, Nielson argued that Judge Vaughn Walker should have recused himself from the case because he was gay and therefore unable to be fair on the issue. Nielson filed a motion contending that Walker “had a duty to disclose not only the facts concerning his [same-sex] relationship, but also his marriage intentions.” That motion was denied by another judge.
Democrats on the Senate Judiciary Committee grilled Nielson over that case during his January 2018 confirmation hearing. (He has waited this long for a floor vote because Sen. Tammy Duckworth (D-Ill.) put a hold on his nomination in March 2018, which effectively blocked it until he was renominated this year.)
“If you say a judge in a same-sex relationship shouldn’t be able to oversee a case on LGBT rights, then do you think African American judges should have to recuse themselves from civil rights cases?” asked Sen. Amy Klobuchar (D-Minn.) last year. “Or women can’t hear sexual harassment cases?”
Nielson replied that the positions he has taken in litigation “are those of my clients,” not his own. In the Prop 8 case, he said, he was “a junior member of a legal team” and the lead counsel ultimately made the decisions on what arguments to advance.
Beyond the defense of Prop 8, Nielson argued against marriage equality in a 2015 amicus brief in Obergefell v. Hodges, the landmark Supreme Court decision that legalized same-sex marriage nationwide. The brief contended that the institution of marriage has a defining purpose “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world” ― and that, regardless of how many straight couples failed to advance that purpose, denying same-sex couples the status of marriage rested on biology and thus did not demean or stigmatize their relationships. The Supreme Court rejected that argument.
“If you say a judge in a same-sex relationship shouldn’t be able to oversee a case on LGBT rights, then do you think African American judges should have to recuse themselves from civil rights cases?”
On a separate matter, when he worked under then-Attorney General John Ashcroft, Nielson wrote a 2005 memo that has been criticized as justifying torture. In the memo, he argued that the Fourth Geneva Convention, which requires signatories to treat prisoners humanely and forbids torture or abusive treatment, protects only those enemy civilians held in U.S. territory, not abroad.
The memo sets forth “a crazy (and dangerous) theory about the applicability of the Geneva Conventions that would also countenance the extraterritorial torture of civilians,” Stanford law professor Beth Van Schaack wrote last year. “This warped interpretation finds no support in international or domestic jurisprudence, the treaties’ drafting history, the treaties’ humanitarian object and purpose, or legal scholarship (even scholarship advancing conservative readings of the treaties),” continued Van Schaack, who formerly served as deputy to the ambassador-at-large for war crimes issues at the State Department.
Nielson has also defended a former Justice Department colleague who signed off on three controversial and now-rescinded memos authorizing the CIA’s use of torture.
Like nearly all of President Donald Trump’s court picks, Nielson has been a member of the Federalist Society, which has been funneling judicial nominees to the White House who oppose abortion rights, LGBTQ rights and voting rights.
Earlier on Tuesday, more than 50 House Democrats sent a letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Chuck Schumer (D-N.Y.) urging them to reject Nielson’s nomination.
“Howard Nielson has spent his legal career opposing equality,” Rep. A. Donald McEachin (D-Va.), who organized the letter, said in a statement. “He has made baseless and profoundly offensive arguments in court against the LGBTQ community. We cannot afford to confirm Mr. Nielson, another problematic candidate for a lifetime appointment, who may well use his position on the bench to erode important civil rights protections.”
The story has been updated with the House Democrats’ letter.