May 22, 2019 at 5:02 pm EDT | by Chris Johnson
Senate confirms judge who argued for Prop 8, against gay judge deciding case
Howard Nielson (Screen capture via C-Span)

The U.S. Senate confirmed to the federal bench Wednesday a Trump judicial nominee who not only litigated in favor or California’s Proposition 8, but argued a ruling against the measure should have been invalidated because the judge didn’t disclose he was gay before deciding the case.

The Senate confirmed Howard Nielson to a seat on the U.S. District Court in Federal District of Utah by a 51-47 party-line vote as Sen. Ted Cruz (R-Texas) presided over the chamber. Sen. Susan Collins (R-Maine) joined Democrats in voting “no” on the nominee.

Kristine Lucius, executive vice president for policy and government affairs at The Leadership Conference on Civil and Human Rights, condemned the Nielson confirmation in a statement.

“By confirming Howard Nielson, the Senate has pushed through another extreme lifetime nominee who will not be fair-minded or impartial.” Lucius said. “Nielson’s reprehensible arguments against LGBTQ equality – including asking to vacate a judgment because the judge was gay – are particularly alarming. In addition, he has litigated against common-sense public safety laws, demonstrated hostility to women’s health care, and argued against educational equity and opportunity.”

Nominated by President Trump in September 2017, Nielson’s nomination had stalled nearly two years in the Senate due to Democratic opposition, although Senate Majority Leader Mitch McConnell’s (R-Ky.) change in rules to ease judicial filibuster allowed the nominee to come to a floor vote.

At the time of his nomination, Nielson was a partner at the D.C.-based Cooper & Kirk, PLLC and represented the defendants in Hollingsworth v. Perry, who sought to uphold the measure banning same-sex marriage in California they placed on the ballot in 2008. The U.S. Supreme Court ultimately rejected their claims on the basis they didn’t have standing in court, restoring marriage equality to California.

But before that ruling, Nielson filed a motion seeking to vacate U.S. Chief Judge Vaughn Walker’s ruling against Proposition 8 on the basis that he was in same-sex relationship and didn’t disclose that as he adjudicated the case.

“Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a non-waivable conflict mandating his disqualification,” Nielson wrote.

Nielson’s attempt to invalidate Walker’s ruling was rejected by U.S. District Judge James Ware, who sided with pro-gay rights groups in maintaining Walker’s sexual orientation shouldn’t invalidate his decision.

In his argument in favor of Proposition 8 on its merits, Nielson suggested being gay is a choice by pointing out there is debate about how sexual orientation is defined and disputed the effect of discrimination on gay people, including increased rates of depression and suicide.

Upon nomination to become a federal judge, Sen. Dianne Feinstein (D-Calif.) queried Nielson in a written questionnaire on various matters, including whether he believes the Supreme Court ruling in Obergefell v. Hodges in 2015 was settled law. To that question, Nielson replied simply, “Yes.”

But Nelson didn’t indicate a change on mind on gay judges ruling in LGBT cases when, in an apparent reference to his litigation position in the Prop 8 case, he asked whether he believes straight judges can rule impartially in those cases.

“I believe the law is clear that no one is required to recuse himself or herself based on status,:” Nielson writes. “Where additional facts are involved, recusal issues must be resolved on a case-by-case basis, applying the judicial canons and the federal recusal statute. Under the judicial canons, it would be inappropriate for me to address hypothetical cases that could arise in litigation.”

Nielson has also faced criticism for being part of the screening committee at the U.S. Justice Department during the Bush administration, which was found to have taken political affiliation into account for hiring practices. He also worked at the Office of Legal Counsel, which justified the use of torture. Nielson has also been an attorney for the National Rifle Association.

In a letter this week, Rep. A. Donald McEachin (D-Va.) distributed a letter signed by more than 50 U.S. House members urging the Senate to reject the Nielson nomination, citing his litigation position in the Prop 8 case.

“A fair and impartial judiciary is foundational to the success and stability of our democracy,” McEachin writes. “It is critical that federal judges embody these principles, and demonstrate a commitment to protecting all Americans’ constitutional freedoms. Mr. Nielson has a consistent record not just of opposing LGBT equality in court, but of making offensive and unfounded arguments in the course of those proceedings. That record raises serious questions about his ability to impartially administer justice.”

In related news, Trump announced this week as his intention to nominate former Virginia Attorney General Ken Cuccinelli, who has a long anti-LGBT record, as secretary of homeland security. In addition to derisively called being gay “intrinsically wrong,” Cuccinelli sought to have Virginia’s law criminalizing sodomy reinstated despite the Supreme Court’s 2003 ruling in Lawrence v. Texas declaring such laws unconstitutional.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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