Last Thursday the Senate Judiciary Committee approved four more of President Trump’s federal court nominees, including Prop 8 proponent Howard Nielson Jr., from Provo, who was an attorney that helped secure the 2008 California same-sex marriage ban. At the time Nielson had questioned whether the judge in the case should recuse himself because he was a gay man, and would have an interest in the outcome.
Nielson’s Senate confirmation hearing to the U.S. District Court for the District of Utah received both criticism and praise.
Vanita Gupta, president of The Leadership Conference on Civil and Human Rights, pointed out in a letter opposing his nomination to the federal judiciary, that Nielson apparently still holds the same conspiratorial views as he did during his Prop 8 days.
“In 2015, Mr. Nielson wrote an amicus brief in the landmark Supreme Court case Obergefell v. Hodges in which he argued against marriage equality,” Gupta wrote. “In his brief, Mr. Nielson made the insulting insinuation that same-sex couples were not capable of being capable parents, writing that ‘through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.’ He also wrote that “it is plainly reasonable for a State to maintain a unique institution to address the unique societal risks and benefits that arise from the unique procreative potential of sexual relationships between men and women.’ Fortunately, the Supreme Court rejected his arguments.”
Several other Democrats on the committee protested Nielson’s nomination, including California Sen. Dianne Feinstein who raised issues over Nielson’s role when he worked at the Justice Department before entering private practice. He was deputy assistant general at the Office of Legal Counsel for the Justice Department and participated in the review of two torture memos in 2004 and 2006.
According to the Washington Times, during his confirmation hearing, he refused to answer one of her questions about his position on the memo due to attorney-client privilege.
The Times also reported that Utah Sen. Mike Lee said Feinstein’s assertions about Nielson’s involvement with drafting the memos is “manifestly contrary to fact” and that he worked to rescind one of them.
“I don’t know how you get from there to somehow suggest that he supports this,” Lee said.
Additionally, Sen. Orrin Hatch defended Nielson’s position in the Proposition 8 case, saying he was “zealously” arguing the case for his clients.
“He doesn’t have a bias in his heart. He was part of a legal team that defends the constitutionality of Prop. 8.” said Mr. Hatch. “He should not be condemned for having worked at that level.”
Nielson was confirmed by the Senate Judiciary Committee on a vote of 11-10. Now the full Senate will vote to approve or reject Nielson, perhaps as soon as April.