Senate Panel Advances Ninth Circuit Nominee

by Tim Ryan, Court House News, May 10, 2018

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved a former Hawaii attorney general who is nominated to a seat on the Ninth Circuit.

Mark Bennett, who served as Hawaii’s attorney general from 2003 to 2010, cleared the committee in an 18-2 vote and was a rare Trump nominee to receive more support from the Democrats on the committee than from the Republicans. Sens. Ben Sasse, R-Neb., and Ted Cruz, R-Texas, both voted against Bennett, with each raising concerns during the nomination process about his record on gun rights.

While Bennett was serving as attorney general, Hawaii joined several other states in filing a friend of the court brief supporting Washington D.C., in the landmark gun rights case District of Columbia v. Heller. When Sasse asked in written questions submitted after Bennett’s nomination hearing about the decision to join the brief, Bennett said the brief did not explicitly support Washington’s handgun ban and also did not necessarily represent his personal views on the limits of the Second Amendment.

“While attorney general of Hawaii, I did not believe a state’s amicus brief was intended to reflect the personal views of the lawyer who wrote it (or the lawyers whose states joined it), but should instead reflect the interests of the states which joined it,” Bennett wrote to Sasse. “Thus, I believed that amicus briefs Hawaii joined should present reasonable and reasonably supported legal arguments in Hawaii’s interests.”

Sen. Mazie Hirono, a Hawaii Democrat who sits on the Judiciary Committee, praised Bennett’s nomination, saying it should serve as a model for the Trump administration to follow in blue states.

“Instead of foisting ideological nominees on us, the White House should follow what we would call the Hawaii model and collaborate with home state senators to nominate consensus, consensus judicial candidates,” Hirono said at the Judiciary Committee meeting Thursday.

Since leaving public office, Bennett has worked at the Honolulu firm Starn, O’Toole, Marcus and Fisher. He also worked as a federal prosecutor from 1980 to 1989, first in Washington D.C. and later in Hawaii.

In addition to Bennett, the committee also unanimously approved three nominees to federal district courts, two in Minnesota and one in Louisiana.

Judge Nancy Brasel and Eric Tostrud will both serve on the U.S. District Court for the District of Minnesota if they are confirmed by the full Senate.

Brasel has served as a district court judge in Minnesota’s Fourth Judicial District since 2011, having previously worked as a federal prosecutor in Minnesota. Before becoming a prosecutor, Brasel worked as a member and later partner at the Minneapolis firm Greene Espel.

Tostrud became a professor at the University of Minnesota Law School the same year Brasel took the bench and has also worked at the Minneapolis firm Lockridge Grindal Nauen since 1992. Tostrud is also on the staff at the Mitchell Hamline School of Law, having joined as an adjunct professor in 1993.

In addition to the Minnesota judges, the committee also approved Robert Summerhays, who is nominated to a seat on the U.S. District Court for the Western District of Louisiana. Summerhays has been a judge on the U.S. Bankruptcy Court for the Western District of Louisiana since 2006, becoming the chief bankruptcy judge in 2009.

Summerhays told Sen. Sheldon Whitehouse, D-R.I., in written responses to questions submitted after his nomination hearing that his time as a bankruptcy judge has prepared him to treat all clients equally in court.

“I have ruled in favor of consumer debtors against large financial institutions on many occasions where the law and the facts support the debtors’ positions,” Summerhays wrote. “I strive to ensure that these individual debtors are on equal footing with larger, more powerful interests as far as being able to fairly present their case.”

A member of the conservative Federalist Society, Summerhays has also been an instructor at the University of Louisiana at Lafayette since 2013 and previously was an associate and later partner at the Dallas firm Weil Gotshal & Manges.