Judicial Nominee Stirs Ire

Though I follow political news fairly closely these days, even I haven’t heard of every low-level judicial nominee that President Donald Trump has put forth. One that I hadn’t heard of before is Howard C. Nielson Jr. — Trump nominated Nielson in September but the appointment hasn’t yet been confirmed by the Senate.

Nielson, the son of former Utah politician of the same name, isn’t like a few of Trump’s other judicial nominees. Remember Matthew Petersen, a nominee for the U.S. District Court for the District of Columbia, who couldn’t answer basic question? (Several of Trump’s nominees have been “unqualified”.)

We can’t complain Nielson isn’t qualified. By all accounts, Nielson is a learned person: bachelor’s degree from BYU, J.D. (“with high honors”) from University of Chicago Law School — where he was an editor on the school’s law review journal, served as clerk to Supreme Court Justice Anthony Kennedy and to Court Of Appeals Judge J. Michael Luttig (Fourth Circuit). Under President Bush 2, Nielson worked in the U.S. Department of Justice as counsel to the Attorney General and later as Deputy Assistant Attorney General in the Office of Legal Counsel. He has been a “Distinguished Lecturer” at BYU’s law school.

The reason he’s raised ire recently, though, is the position he took in a gay marriage case in 2013. In California, Proposition 8 (which banned gay marriage) had been declared unconstitutional in a district court. Nielson filed a motion to vacate that judgment, arguing that the judge (Chief Judge Vaughn Walker, a Reagan appointee) “had a duty to disclose not only the facts concerning his [same-sex] relationship, but also his marriage intentions.” This began an appeal that dragged on until 2013, in which Nielson insisted the judge be disqualified.

I don’t pretend to understand all the legal ramifications in the case. The end result was that Californians could finally marry consenting adults of the same sex.

Nielson’s position — that the judge should have been disqualified from the case because he was gay and intended to marry a man — came up this week in sites that cover LGTBQ-related news. Of course, they’re all horrified. “So no straight judge can hear cases involving straight people?” someone wrote incredulously. “They’re gonna have to hire a lot more gay judges then.” I admit I chortled a bit.

But no, that’s not what he was arguing. The argument, which I’m approaching from a logical standpoint rather than a legal one (because IANAL), makes sense to some degree. If it’s true that Judge Walker was gay and wanted a same-sex marriage, then the judge stood to personally gain from the tossing out of Prop 8. This would not be the same as a straight judge handling the divorce case of a straight couple, or a female judge handling the case of a female murder defendant. It would be more akin to an African-American judge with children attending a segregated school presiding over a case about desegregating schools. (This never happened, to my knowledge; it’s hypothetical.) In such a case, you can bet your britches that people would have cried foul. Of course a black judge can’t hear a segregation case, racist white attorneys would have argued in the 1950s and/or ’60s.

There really isn’t a straight equivalent, or a male equivalent, because we’ve never been on the wrong end of discrimination in this country. If in the unlikely event that someone made a move to outlaw straight marriage, it’s statistically likely that any judges hearing the case would be straight. Would they all recuse themselves on the grounds they would personally benefit or suffer from the outcome? I can’t know for certain, but I lean strongly toward “no, they wouldn’t”. (I also wonder how many judges hearing slave-related cases in the 1800s recused themselves because they too owned slaves. Again, my guess would be “none”.)

As noted above, Nielson and those who worked with him lost this case. A couple of years later, gay marriage went nationwide (Nielson submitted a brief of amicus curae [.pdf, 273 kb] in that case too.)

It’s not the only time this apparently qualified attorney was on the wrong side of progress.

In 2008, the Office Of The Inspector General investigated Nielson and his colleagues at the DOJ, and concluded he’d been screening candidates for hiring programs based on their political affiliations (selecting conservatives and deselecting liberals at hugely disproportionate rates). When a Senate committee queried whether they’d been disciplined, the Inspector General responded that they couldn’t be disciplined by the DOJ because they no longer worked there, but “their actions were exposed and condemned” and “should never get a job with the Department or, in my view, any other Federal agency based upon the conduct listed”. Also: “we have recommended that they never get a job with the Department again, hopefully never with the Federal Government again.”

In the case of Utility Air Regulatory Group vs. EPA, which regressives mostly lost, Nielson had aligned himself with the pro-pollution side, filing a brief of amicus curiae (.pdf, 256 kb), which basically means he wasn’t party to the case but wanted to interject his backward opinion anyway. (To be fair, the brief was written by Nielson with two other attorneys on behalf of “Senator Mitch McConnell and other members of the United States Congress” — known enemies of the environment.) He apparently argued that the EPA lacked authority to regulate greenhouse gases — despite the Clean Air Act granting regulatory authority on the EPA over “any air pollutant.”

Let me stop myself right here. I’m aware that attorneys often take cases they don’t necessarily agree with. A job is a job. Does it mean that Nielson is pro-pollution just because he worked on this case with the pro-pollution Republican senators? Not necessarily. On the other hand, I think we’re establishing a pattern here.

During the Bush 2 presidency, Nielson authored one of the notorious memos on the question of torture at Guantanamo, and defended the other “torture memos” issued by DOJ attorneys at the time.

“He authored a memorandum that gutted protections for persons in custody under the Geneva Conventions, a memorandum one expert said was based on such ‘erroneous legal reasoning and conclusions’ that it should be ‘add[ed] . . . to the Legal Scrapheap’.”

He’s represented the NRA and several other gun groups (in all cases, his side lost), trying to ensure more young people had more guns with greater capacities (NRA v. McCraw, NRA v. BATFE, and Friedman v. City of Highland Park).

He’s advocated for an end to affirmative action programs at universities (Schuette v. Coalition to Defend Affirmative Action), supported Texas’ attempt to deny healthcare to women (Whole Woman’s Health v. Hellerstedt), and fought against the Affordable Care Act (Halbig v. Sebelius and King v. Burwell).

In almost all these cases, Nielson’s side lost. (The affirmative action case is the only one I know of in which he ultimately prevailed.) From a layperson’s perspective, it looks like he’s not very good at his job — his presence in a case seems to guarantee a loss. Yet here he is, being nominated for a lifetime judgeship.

The position he’s nominated for — District Judge of the U.S. District Court (Utah division) — is the lowest level of our three-tiered federal court system which gets its judges via presidential nomination. Like higher federal courts, these judges are appointed for life (unless they retire/resign or are impeached and convicted — fairly rare). It’s a fairly powerful position.

This is an example of the many nominees Trump has sent to the Senate without you ever having heard of it. Because the Matthew Peterson video is so hilarious, it went viral. But it’s the ones like Nielson that we need to be watching.

5 Comments
  1. Wow! Lots of research clearly went into this. And you’re right, I haven’t heard a peep about this Nielson guy in the news, yet the Washington Post had at least five separate articles making fun of Peterson (it WAS pretty funny, I’ll give them that). This is the job of responsible journalists, and they’re not doing it, so I thank YOU for bringing it to my attention.

  2. Dana says:

    IAAL.

    We do not need more white males on the bench. Even liberal ones. As a trial lawyer who has appeared before Judges for the past 23 years I can tell you there is no such thing as a neutral arbitrator of the law. All Judges (even ones with diverse backgrounds) carry at least implicit (if not overt) biases to their decision-making. We need more minorities, women and members of the LBGT community serving as Judges.

    No one asks white male Judges to recuse themselves from issues that they have a stake in (well, certain persnickety criminal defense attorneys do but we’re routinely denied our requests); it’s only when a Judge has a diverse background that this is an issue (and I’ll bet in 90% of the cases, it’s a white male attorney requesting that the diverse Judge be removed).

    As to whether an attorney will take a case that they don’t believe in – that’s true if it’s a Government lawyer (US Attorney, DA, or Public Defender) but not true for private attorneys. Also, many attorneys will file what are called, “Amicus briefs” with the court (which means “Friend of the Court”) arguing for a particular outcome in a case where they’re not otherwise a party. You can be assured in those situations, the views expressed in the Amicus brief are genuinely those held by the attorney filing them.

    Our legal system (both civil and criminal) is an adversarial system. It is not designed to uncover the truth or reach a just outcome. It is designed to have a winner and a loser.

    • Wil C. Fry says:

      “We need more minorities, women and members of the LBGT community serving as Judges.”

      I agree 100%.

      (See my Feminism entry: “In my estimation, “fairness” would only be achieved by having only women on the court for the next 200 years…” I hold the same opinion as it relates to white versus people of color, LGBTQ versus straight/het/cis, and so on.)

      “…that’s true if it’s a Government lawyer (US Attorney, DA, or Public Defender) but not true for private attorneys…”

      Thank you for this clarification. I always appreciate the input from your legal experience.

      (I was, however, thinking of a few private-practice attorneys I knew in a small town who would take cases they didn’t quite believe in — but I recognize that the rights they argued for were indeed principals they believed in.)

      “You can be assured in those situations, the views expressed in the Amicus brief are genuinely those held by the attorney filing them.”

      Thank you again.

      “Our legal system (both civil and criminal) is an adversarial system. It is not designed to uncover the truth or reach a just outcome. It is designed to have a winner and a loser.”

      Clearly so. I think you would agree with me, however, that our current system is more likely to arrive at a just outcome than the systems that preceded it (I’m thinking of the illiberal “courts” of Europe in the middle ages) — systems in which defendants weren’t allowed to call witnesses or present a case, for example.

      Another thing I see confused in layperson discussions is the difference between the law/constitution and what we think is “right” or moral or just. More than once, I have fallen prey to this very confusion and was corrected by the attorneys I was interviewing (when I was a crime reporter).

      • Dana says:

        Another thing I see confused in layperson discussions is the difference between the law/constitution and what we think is “right” or moral or just. More than once, I have fallen prey to this very confusion and was corrected by the attorneys I was interviewing (when I was a crime reporter).

        I can’t tell you how many times I had a conversation along these lines with my clients (criminal defendants) throughout the years. Most often it’s explaining that what we think of as “self-defense” on the street, isn’t the same as a legally sufficient self-defense defense in court. Just because you believed in the moment that you had to defend yourself (or your family) doesn’t mean that the law agrees with you.

        The other area where this happens a lot is possession of marijuana. New York State doesn’t care that 68% of Americans believe pot should be legal or that you smoke it for religious reasons; it’s still illegal here.

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