Grassley grills DOJ nominee on paper

Republicans on the Senate Judiciary Committee had nothing to ask openly gay Justice nominee Stuart Delery during his confirmation hearing last month. And the Committee voted to advance his nomination to the full Senate July 11. But ranking minority member Charles Grassley had more than 20 questions –many of them gay-related— behind-the-scenes.

Other openly gay nominees for judicial and executive positions have not been hit with so many gay-related questions as Delery. The committee on July 18 advanced the nomination of Todd Hughes to serve on the U.S. Circuit Court for the Federal Circuit with no gay-specific questions. Grassely had numerous written questions for openly lesbian nominee Nitza I. Quiñones Alejandro, but her nomination to the U.S. District Court for the Eastern District of Pennsylvania was confirmed in June with no gay-specific queries.

Committee members have the opportunity to publicly grill nominees during their confirmation hearings and can submit additional questions later in writing.

            Grassley (R-Iowa) was at the June 11 confirmation hearing but had no questions for Delery then. No Republican did. Instead, they focused all their questions to President Obama’s nominee to serve as director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

            But in written questions to Delery, Grassley questioned the openly gay nominee about several gay-related cases with which the nominee had been involved to some extent. Grassley asked four questions about a brief Delery wrote in 2000, urging the Supreme Court to rule against the Boy Scouts of America. He asked another four on Delery’s participation in arguing against the Defense of Marriage Act (DOMA) in the past several years, while at the Department of Justice. And he asked 14 on various other matters.

On the Boy Scouts case, Boy Scouts of America v. James Dale, Grassley asked Delery whether he thought the BSA was sowing “the seeds of hatred and violence” and whether he thought the courts should “force” the BSA and similar groups to “adopt and embrace” policies they oppose.

Grassley quoted from a brief Delery wrote for a range of groups, including Parents, Families, and Friends of Lesbians and Gays; the Matthew Shepard Foundation; the Gay, Lesbian, and Straight Education Network; and four other groups, including the National Education Association and the National 4-H Council.

When Delery tackled a response to Grassley’s question, he said the brief represented the views of his clients, “a group of youth-focused organizations, including the National 4-H Council.” He said the sentence Grassley quoted from the brief –a sentence that said “anti-gay discrimination by organizations like Boy Scouts of America…[were]  sowing the seeds of violence” – “referred to the position of the client organizations on the collateral, even unintended, effects that can result from exclusionary policies of respected organizations like the Boy Scouts.”

Delery also noted that he had been a Cub Scout himself. He did not mention that he was gay himself.

Concerning DOMA, Grassley noted that Delery had been “deeply involved” in litigation against the law and asked Delery to detail that involvement. Delery responded that he did not take part in any internal discussions regarding President Obama’s decision with Attorney General Eric Holder to stop defending DOMA in the courts in most circumstances. He said his participation in the DOMA cases did not take place until after he became acting assistant attorney general for the Civil Division, in February 2012.

In a somewhat odd question, Grassley also asked Delery how he would “legally define sexual orientation.” He did so in the context of the two marriage-related cases –involving DOMA and Proposition 8— which had not yet (at the time of the hearing) been decided by the Supreme Court. Because the cases were still pending and Delery had been part of the legal team representing the DOJ’s position in them, he declined to respond to the question.

Grassley’s office has not responded to a question from this reporter about whether he intends to support Delery’s nomination. On June 27, he asked that the vote on Delery’s nomination in committee be delayed but gave no reason why. There is no word yet from Senate Majority Leader Harry Reid’s office as to when the Delery nomination might go to the floor.

Getting a Senate floor vote is no routine matter these days. The Republican minority has routinely filibustered even the most universally supported pieces of legislation and nominations during the Obama presidency. But there have been some recent signs of change on that front.

The U.S. Senate on July 17 approved a second term for openly gay appointee Fred Hochberg to serve as president and chairman of the Export-Import Bank.

The vote on Hochberg’s second-term confirmation took place after a temporary deal was struck between Democrats and Republicans to break the practice of Republicans to routinely filibuster all Senate votes. The deal guaranteed enough Republican votes (six) to achieve a 60-vote margin (cloture) to overcome a filibuster against Hochberg and six other nominees. The Senate voted 82 to 18 on the cloture vote for the Hochberg nomination, then voted 82 to 17 to confirm him. (Senator Jay Rockefeller (D-WV) did not vote on confirmation.)

The 17 votes against Hochberg’s confirmation, all Republicans, included both of Texas’ senators, Georgia’s Saxby Chambliss, and Florida’s Marco Rubio.

But the deal has not yet gone beyond those six nominees.

            Delery’s confirmation has the benefit of being endorsed by several prominent Republicans, including former Solicitor General Paul Clement. Clement is the attorney the Republican House Bipartisan Legal Advisory Group (BLAG) hired to defend the Defense of Marriage Act (DOMA). He signed onto a letter with 15 other former government officials expressing their “strong support” for Delery’s confirmation to serve as Assistant Attorney General in charge of the Department of Justice Civil Division.

For the LGBT community, Delery’s nomination is a high level appointment. If confirmed, he will be one of 12 assistant attorneys general at DOJ, the highest-ranking openly LGBT appointee at the DOJ, one of the highest ranking of the estimated 268 openly LGBT people whom President Obama has nominated or appointed since entering the White House in 2009, and the highest ranking openly gay person at DOJ.

As head of the Civil Division, Delery, 45, represents the U.S. government in litigation involving such critical matters as national security, presidential powers, immigration, energy, banking, and consumer protection. Recently, the Division has defended the Affordable Care Act and the administration’s protection of information concerning the CIA use of drones to eliminate suspected terrorists. The DOJ Civil Division has 1,400 employees.

One Response to Grassley grills DOJ nominee on paper

  1. FlexSF says:

    This is an excellent question by Grassley. “On the Boy Scouts case, Boy Scouts of America v. James Dale, Grassley asked Delery whether he thought the BSA was sowing “the seeds of hatred and violence” and whether he thought the courts should “force” the BSA and similar groups to “adopt and embrace” policies they oppose.” I would explain to the naive-bigot-Grassley, why the ruling was hateful, and wrong. I could prove it too. Unpacking the unfettered racist, sexist, and homophobic social diseases that the GOP suffers from is easy, and must be delivered at every possible opportunity.

Leave a Reply