GOP blockade of Obama judicial nominees snares openly gay candidate
As Congress began its summer recess, the nomination of one openly gay nominee was left behind in the stacks of deliberately neglected judicial nominations –along with President Obama’s nominee to the U.S. Supreme Court and his nominee to various other federal bench seats.
President Obama nominated lesbian Inga Bernstein to a U.S. District Court seat for Massachusetts in July of last year. Although Senate Judiciary Committee Chair Charles Grassley didn’t show up for her confirmation hearing April 20, he submitted questions to her in writing, noting that, while she was at Harvard Law, Bernstein “supported a proposed ban on hate speech.” He asked Bernstein whether “hate speech” is protected under the First Amendment and whether she still supports bans on hate speech.
Bernstein said that “much” hate speech is protected and that she would follow the precedent of the Supreme Court and the First Circuit, which includes Massachusetts.
Grassley also asked Bernstein what assurances she could offer that her judicial decisions would be grounded in law “rather than any underlying political ideology or motivation or “any personal views.””
She said she was “deeply committed to the rule of law” and was committed to “comporting myself in conformity” with the rule of law as necessary to ensure justice and fairness.
Asked by Senator Ted Cruz to name her “favorite Supreme court decision in the past 10 years,” Bernstein replied, “I do not have a favorite Supreme court decision.”
Bernstein was one of five candidates whose nominations were considered by a Senate Judiciary hearing April 20. Senator Michael Lee (R-Utah) presided over the event.
Senate Republicans have said they won’t consider a U.S. Supreme Court nominee from President Obama because it’s a presidential election year. But U.S. Senator Elizabeth Warren, a Democrat from Bernstein’s state of Massachusetts, tried to get the Senate to confirm Bernstein and 14 other lower court nominees last month and she was rebuffed.
“This is not how the Senate is supposed to work,” said Warren. “The Senate’s job is to provide advice and consent on the president’s judicial nominees.”
A report prepared by Warren’s office and released last month shows that Republicans have held up most non-controversial nominees for 200 days or more.
Bernstein was nominated July 30, 2015, now almost 365 days ago and, while the Judiciary Committee has advanced her nomination to the full senate, it will sit on the Senate calendar for at least another 49 days, while Congress is in recess.
Warren, who recommended Bernstein’s nomination to President Obama, noted that an independent commission in Massachusetts recommended Bernstein for the job.
Bernstein attended the University of California-Berkeley and graduated from Wellesley College and Harvard Law. She is a partner at the Boston criminal defense law firm of Zalkind, Duncan & Bernstein.
During her confirmation hearing, both Warren and Senator Ed Markey (D-Mass.) noted that Bernstein’s spouse, Christine Nickerson, and their twin daughters were at the hearing.
Bernstein joked about meeting her spouse of 18 years at “a bar” –a bar association meeting. Senator Ed Markey described Bernstein as a “diversity activist” at Harvard.
In chairing her confirmation hearing, Republican Senator Michael Lee of Utah noted that he had been mentored by Bernstein’s cousin, Richard Bernstein, and said it was an honor to meet her.
During the hearing, Senator Christopher Coons (D-Dele.) noted that this was the April hearing was the first confirmation hearing since January 2016 and that there are 79 vacancies in federal courts. The Senate, he said, had allowed only 11 nominees to be confirmed in the past year.
On her Senate questionnaire, Bernstein indicated she was a member of the Massachusetts LGBTQ Bar Association from the late 190s until 2013. According to her law firm website, Bernstein heads up the firm’s employment law section and has represented clients in various discrimination complaints, including sexual orientation. She has also represented “numerous” same-sex couples in a range of family law disputes.
Bernstein has been nominated to replace Judge Douglas Woodlock, the same judge she clerked for from 1994 to 1995. Woodlock went into semi-retirement last June.
Prior to her clerkship, Bernstein co-chaired the Harvard Law School Coalition for Civil Rights and was a member of the law school’s Committee on Gay, Bisexual and Lesbian legal Issues. Her Senate questionnaire notes that she has been a “referral attorney for Gay and Lesbians Advocates and Defenders for many years.”
Nine out of 11 of President Obama’s openly LGBT nominees to federal judicial posts have been confirmed since 2009. In addition to Bernstein’s nomination, which is still pending, President Obama initially nominated Washington, D.C., attorney Ed DuMont to the Federal Circuit appeals court, but Republicans on the Senate Judiciary Committee blocked DuMont’s nomination and DuMont withdrew his nomination.