Senate advances nomination of controversial pick to be the newest federal judge in Utah

(Courtesy Photo) Howard Nielson.

Washington • The Senate Judiciary Committee advanced the nomination of a controversial nominee to serve on Utah’s federal bench on Thursday as Republicans moved to install a slew of President Donald Trump’s picks against Democratic pushback.

The GOP-led committee voted along party lines 12-10 to move Howard Nielson Jr.'s nomination to the full Senate as part of a package of judicial nominees, some of whom have come under fire from Democrats for their past statements or actions.

Nielson, who attended Brigham Young University and is now a lawyer in Washington, faced opposition for his previous legal work to end same-sex marriage in California and for a memo he wrote while at the Justice Department arguing that the Geneva Conventions only protected civilians in enemy custody held on U.S. soil and not abroad.

The judicial pick had previously been voted out of committee, though his nomination expired at the end of last year.

Nielson, the son of former Utah Rep. Howard Nielson, received the same vote as Trump’s choice for attorney general, William Barr, whose name will now go before the full Senate.

Sen. Mike Lee, a Utah Republican and a member of the Judiciary Committee, gave a strong defense of Nielson's nomination and made clear that Nielson was not the author of Justice Department memos allowing for enhanced interrogation techniques, which some contend allowed the United States to torture enemy combatants.

“I've worked with Howard and I know him to be an attorney of unusual character, intellect and someone who proceeds with much caution,” Lee said during the hearing. “It is a matter of undisputed fact that he was not the author of that memo.”

Nielson worked at the Justice Department’s Office of Legal Counsel during the time those memos – there were two – were written, but he was not the author. His memo on the Geneva Conventions, however, has been considered a pathway to the United States allowing enhanced interrogation techniques that have been used at Guantanamo Bay and elsewhere.

The Leadership Conference on Civil and Human Rights previously criticized Nielson’s nomination, noting that Stanford Law School Professor Beth Van Schaack, who had served as the deputy to the ambassador-at-large for war crimes issues at the State Department, said his memo set forth “a crazy (and dangerous) theory about the applicability of the Geneva Conventions that would also countenance the extraterritorial torture of civilians.”

Carl Tobias, the Williams Chair in Law at the University of Richmond School of Law, said he expects Nielson to be confirmed this spring but is wary of the process where Republicans are pushing through nominees – sometimes against the wishes of home state senators. The action breaks with Senate tradition and, he fears, could cause long-term damage to the judiciary.

“I think that the rushed process used today and so far this year is a major mistake, which continues what the GOP and [Judiciary Chairman Chuck] Grassley did the last two years,” Tobias said.

The committee, Tobias added, shouldn't have rushed through 44 nominees at the same time considering Barr's nomination.

“All the votes on controversial nominees were party line and the process today suggests the nation will have two more years of bad process, rancor and division and GOP rubber-stamping of nominees, all of which will undermine respect for the process, the Senate Judiciary Committee, the Senate, the president and the courts as they become increasingly politicized.”

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