An attorney who has argued against same-sex marriage and that same-sex couples aren’t capable parents is a step closer to becoming a federal court judge in Utah, thanks to President Donald Trump.
As if that weren’t bad enough, attorney Howard Nielson argued in defense of Proposition 8 which Californians will remember was a short-lived attempt to ban same-sex marriage in the state, The Huffington Post reported in January 2018. David Badash, writing for The New Civil Rights Movement reports that Nielson argued that the judge who decided Prop 8 was unconstitutional was incapable of delivering an impartial ruling because he was gay and in a long-term same-sex relationship.
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Nielson even supported torture and one of the authors of former President George W. Bush’s “torture memos.” These memos were used to order “enhanced interrogation techniques” (including water-boarding, which is considered an international war crime.) In writing his own “torture memo” he defended a former colleague and once again advocated his support for using torture.
Nielson has also fought against affirmative action, argued that the Affordable Care Act (Obama Care) is unconstitutional, argued in favor of anti-abortion laws and argued against effective gun control laws designed to increase public safety.
No wonder Trump supports him. And this isn’t the first time. Trump nominated him for the same seat in 2017, but that attempt was unsuccessful.
Federal judges and even the United States Supreme Court have even handed down rulings opposing arguments Nielsen has made.
But here’s the really troubling part: Tuesday, every U.S. Senate Republican, except Sen. Susan Collins (Maine) voted 52-47 to invoke cloture, thus ending debate and pushing the vote forward to nominate Nielson to become a U.S. District Judge for Utah’s District Court. Collins, it should be noted, did something right for once and joined the Democrats in voting no.
52-47 #Senate INVOKED cloture on nomination of Howard Nielson, Jr. to be U.S. District Judge for the District of Utah. Senator Collins joined Democrats and voted no. Senator Bennett did not vote.
— Senate Press Gallery (@SenatePress) May 21, 2019
The Senate will soon vote on Nielson’s nomination, and this time, Badash writes, he is expected to be confirmed.
The Human Rights Campaign is calling on the Senate to reject Nielson’s nomination, citing the harm he has already caused LGBTQ people.
“The nomination of Howard Nielson to the federal bench is yet another attack on LGBTQ people by the Trump-Pence administration,” said HRC’s legal director Sarah Warbelow. “Nielson has a long track record of hostility and discrimination towards the LGBTQ community. He has stated that being gay is a choice, argued in favor of Prop. 8 and the abusive practice of conversion therapy, and has had the audacity to claim a gay judge could not be impartial in a ruling involving LGBTQ rights. If anyone is unfit to serve on the federal bench, it’s Howard Nielson, and the Senate should reject his nomination.”
During his 2018 nomination hearing before the Senate Judiciary Hearing, Democrats focused on his accusation that the judge who ruled Prop. 8 was unconstitutional was unqualified to do so because of his sexual orientation, and Nielson was grilled by Sens. Amy Klobuchar (D-Minn.) and Kamala Harris (D-Calif.)
“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? Or women can’t hear sexual harassment cases?” Klobuchar wanted to know.
Nielson tried to weasel out of that by saying that the legal positions he takes “are those of my clients,” and not necessarily his own opinions. He described himself as “a junior member of a legal team” during the Prop. 8 case and that the lead counsel made the final decision on which arguments to advance. But he also said he believed it was fair to try to disqualify the judge because he was in a long-term same-sex relationship.
But then Harris, who was California’s attorney general while Prop. 8 was being litigated and who opposed removing the judge told Nielson during the hearing that his argument raised “the ugly specter” because it presumes judicial bias. Then she read aloud from the brief she filed in the case.
“The distinction that was being made by you, on behalf of your client, was that he should have recused himself because he was in a relationship with another man, not because he was gay,” she said. “This is a distinction without a difference. Courts have seen such recusal requests for what they are: a thinly-veiled attempt to disqualify judges based on their race, gender, religious affiliation, or in this case, sexual orientation.”
“I stand by those words,” Harris noted.
Now Harris and Klobuchar may have to repeat this questioning. It’s worrisome to think Utah may wind up with this reprehensible man despite so many efforts to make sure he doesn’t see the inside of a district court.
You can watch Klobuchar and Harris question Nielson in the video below.
Featured image courtesy of the video above