Washington • Along party lines and amid divisive arguments, the Senate Judiciary Committee on Thursday advanced a judicial nominee for Utah’s federal court.
All of the panel’s Republicans supported, and all Democrats opposed, Howard Nielson Jr.‘s nomination, which has come under fire for his past legal work against same-sex marriage in California and for a memo he authored arguing that the Geneva Convention only protected civilians in enemy custody held on U.S. territory, not abroad.
The vote was 11-10, and Nielson’s nomination now goes before the full Senate.
Sen. Diane Feinstein, D-Calif., said that during Nielson’s confirmation hearing two weeks ago, he declined to say whether he agreed with different memos – which he did not write – that waterboarding and sleep deprivation were legal interrogation techniques.
“This seriously concerns me,” Feinstein said. “These memos were a black eye on the Department of Justice and our country for years.”
Nielson said during his hearing that that those memos authorizing forms of torture were rescinded and “rightfully so.”
Feinstein and other Democrats also attacked Nielson for his work on a legal brief in California that argued a state judge should have recused himself from hearing a case on same-sex marriage because he didn’t disclose he was in a committed gay relationship. Feinstein said that was akin to President Donald Trump’s claim that a federal judge hearing a case on Trump University couldn’t be partial because he has Mexican heritage.
“Ladies and gentlemen, this is not the American way,” Feinstein said.
But Sen. Orrin Hatch, R-Utah, quickly defended Nielson as a highly qualified nominee who had worked on his clients’ behalf in the cases Democrats were citing.
“It looks like Mr. Nielson is the latest target for some of the left-wing groups who want to smear President Trump’s judicial nominees,” Hatch said. “The attacks against him are simply illegitimate.”
Sen. Mike Lee, R-Utah, said that Nielson was “one of the finest” lawyers he knows and the arguments against him are unfair because he didn’t write any of the memos specifically allowing torture and was serving his client when he was part of the team fighting same-sex marriage in California.
Lee said he was “shocked” at the rhetoric against Nielson and that the nominee has not expressed “any sympathies” toward the torture memos.
“I’m disappointed we’ve gone down this road,” Lee said.
Nielson is a partner at the Washington law firm of Cooper & Kirk and earned his undergraduate degree at Brigham Young University and law degree at the University of Chicago. He is the son of former four-term Utah Congressman Howard Nielson, who served from 1983-1991.
President Donald Trump nominated Howard Nielson Jr. in September to fill a vacancy in the Utah federal court created when Judge Ted Stewart took senior status four years ago. Senior judges are only required to hear a portion of cases as active judges.