Trump Judicial Nominees Get Tough Going Over From Hawaii’s Hirono

by Brandi Buchman, Court House News, October 4, 2017

WASHINGTON (CN) – Senate Democrats grilled several of President Donald Trump’s judicial nominees Wednesday, calling into question everything from one candidate’s views on corporal punishment to another’s taste for office decor that evokes the confederacy.

In all, six nominees appeared before the Senate Judiciary Committee on Wednesday; five tapped for judicial posts, the fifth to be an assistant attorney general at the Justice Department.

All of the nominees were conservatives, and all appeared to have the solid support of Republicans on the committee after roughly four hours of testimony.

The first to address the committee was Stephanos Bibas, a former federal prosecutor from New York City, who has been nominated for a seat on the Third Circuit.

Prior to joining the U.S. Attorney’s Office in Manhattan, Bibas clerked for U.S. Circuit Judge Patrick Higginbotham and Supreme Court Justice Anthony Kennedy.

The Yale Law School graduate is also listed as an expert on the website of the Federalist Society, the conservative organization that has had a hand in picking several of Trump’s nominees.

Bibas left the U.S. Attorney’s Office in 2000 to accept a fellowship from Yale, and since then he’s been employed as a professor at Pennsylvania Law School, where he’s acquired a national reputation in the area of criminal procedure.

But it was an unpublished, 61-page article that Bibas wrote, entitled “Corporal Punishment, Not Imprisonment,” that seemed to most interest Democratic Sen. Dick Durbin of Illinois on Wednesday.

As described by Durbin, the article advocated the use of “non-disfiguring corporal punishment, such as electric shock,” for most incarcerated individuals, and stated that “lengthy imprisonment adds up to far more needless pain than a brief electrical shock which leaves an offender free to work, to parent.”

Bibas told the committee he no longer espouses the views he set forth in the paper, that he considers corporal punishment wrong and un-American, and that he categorically rejected it in his 2012 book, “The Machinery of Criminal Justice.”

“But you weren’t a kid when you wrote this,” Durbin said. “You had been around awhile. You were a professor. How can you hold such an extreme view … and then three years later, disavow it completely?”

Bibas said he struggled with the concept of corporal punishment before and after finishing the lengthy paper and concluded it had been “a crazy idea.”

“I never published it because I realized it was a crazy idea, but I only considered it in the context of more productive and shorter punishments. This was part of the creative process and a way forward.”

Michael Joseph Juneau, a Harvard alum, is nominated for a federal judgeship in the Western District of Louisiana.

He told the committee Wednesday that his experience in private practice has given him a great appreciation for the challenges judges confront from the bench.

“It’s a tough job, frankly, and a judge has an opportunity to things that are honorable, impartial and respectful,” Juneau said. “That’s what I take away most from private practice. They need to have people on the bench that respect not only lawyers, but litigants, staff, secretaries [and treat them] with the respect due of all people who appear before the court.”

Republican lawmakers praised Juneau ‘s credentials, but Sen. Mazie Hirono, D-Hawaii, chose to focus instead on his membership with the conservative Christian nonprofit, Alliance Defending Freedom.

“The Southern Poverty Law Center has designated [the Alliance] a hate group,” Hirono  said.

She went on to cite a report from the law center that says the nonprofit has supported recriminalizing homosexuality both in the U.S. and abroad; defended state sanction sterilization of transgender individuals abroad; and claimed “the homosexual agenda” will destroy Christianity and society.

Juneau denied supporting  such ideas and said he emphatically disagreed with the law center’s depiction of the group.

But he then sought to distance himself from it, saying he is merely one of many  “allied attorneys” who make themselves available to the organization.

“So you do not support the recriminalization of homosexuality?” Hirono asked.

“Of course not, absolutely not, no m ‘am,” Juneau said.

Later in the hearing, Hirono was equally pointed in her questioning of  Judge Liles Clifton Burke, Trump’s pick to be a federal judge in the Northern District of Alabama.

In Burke’s case she wanted to know why the judge had a portrait of Jefferson Davis hanging in his chambers at the Alabama Court of Criminal Appeals.

“I absolutely reject racism in all forms, but the reason that I hung that has really nothing to do with my views on race and everything to do with its historical significance,” Burke said.

He said the portrait of the president of the Confederacy hung in his chambers from 2011 to 2012, and that it was only one of many portraits he displayed of influential figures in Alabama history.

Hirono then asked Burke if he thinks Confederate symbols should be removed from public grounds, but the judge declined to answer.

He explained that the issue is likely to come before him in the federal court, and he shouldn’t voice his personal opinion in order to remain impartial.

Tilman “Trip” Eugene Self III, Trump’s nominee to fill a vacancy in the Middle District of Georgia also came under fire from Hirono. In Self’s case, her withering questioning focused on a workplace sexual assault case in which he represented the defendant.

Hirono said to her it appeared he tried to “victim blame” a woman who claimed her employer assaulted her.

“The state dismissed testimony from your defense that emphasized that the waitress was wearing a short skirt and exhibited flirtatious behavior allegedly brought on by alcohol,” she said.

“Do you think it was appropriate for the state to exclude this testimony?” she asked.

“It was a consensual relationship. That’s what the jury found,” Self responded.

Hirono said she believed Self was trying not to answer the question. She again asked if a victim’s attire should be taken into consideration in a sexual assault case.

“It depends on the specifics,” Self said.

The one judicial nominee who sailed through Wednesday’s meeting unscathed was Marvin Quattlebaum Jr., who Trump has chosen to fill a vacancy on the federal court in South Carolina.

The committee did little in the way of direct questioning of Quattlebaum, a partner at the Greenville, South Carolina office of Nelson, Mullins, Riley and Scarborough.

He specializes in liability and commercial litigation and has defended a number of high risk and exposure cases, said Sen. Tim Scott, R.-S.C. who endorsed the nominee.

Sen. Lindsay Graham, R.-S.C., only asked Quattlebaum how he saw the role of a federal judge.

“A judge should have an open mind, be fair and set personal beliefs aside and go wherever the case or case law takes it. It entails hard work and litigants deserve the right to have their cases heard quickly and promptly,” Quattlebaum said.

The only non-judicial nominee to appear before the committee on Wednesday was John Demers, who has been nominated to serve as assistant attorney general, national security division, at the Department of Justice

Demers, who clerked for the late Supreme Court Justice Antonin Scalia, helped draft the original version of Section 702 of the Foreign Intelligence Surveillance Act. The legislation grants the U.S. government permission to spy on foreign targets that are “reasonably believed” to be outside the U.S.

Demers said if confirmed, he would support reauthorization of the legislation, which sunsets on December 31.

Sen. Graham segued from that subject to the issue and stark challenges the nation faces in the realm of cybersecurity.

Demers said he is keenly aware that threats today are greater than they were when he originally worked at Justice Department between 2003 and 2009.

“I think back when I was there we were focused on recruitment [of terrorists] over the internet. Today that is still a concern, but we have an increased threat through cyber attacks,” he said. “Cyber has permeated all of our lives … and cyber threats are permeating the [National Security Division’] as a whole.”

Inevitably, Demers was also asked about how he’ll handle his interaction, if any, with former-FBI Director Robert Mueller’s ongoing investigation into Russian meddling in the 2016 presidential election.

Demers assured the panel that while he has “no idea what my role would be,” he would never do “anything illegal or inappropriate” when it comes to the probe.