Charles Grassley

There was a hint of trouble ahead for the nomination of lesbian attorney Alison Nathan to the U.S. District Court for Southern New York. The U.S. Senate Judiciary Committee voted 14 to 4 Thursday (July 14) to advance her nomination, but Senator Charles Grassley, the ranking Republican on the Committee, said he was voting to advance the nomination only because there was a “second opportunity to fully examine” her record, and that of one other nominee.

Grassley said he was “concerned” about Nathan’s view of the death penalty, her reliance on foreign law, and her handling of terrorism cases. Neither he nor any other senator on the Committee spoke about her being one of only three openly gay nominees put forward by the Obama administration.

In written questions to the candidate, Grassley noted that Nathan has been “very critical of the lethal injection method” in carrying out death sentences. Nathan has written that the three-drug protocol inflicts “severe pain,” violating the 8^th Amendment’s guarantee that the federal government will not inflict “cruel or unusual punishment.”

Nathan responded, in writing, that she would follow Chief Justice John Roberts’ majority opinion in Baze v. Rees. The opinion, from 2008, held that two men seeking to avoid the three-drug protocol had failed to show that “the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment.” To qualify as violating the 8th Amendment, said Roberts, the method would have to present a risk that was ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’”

Concerning foreign law, Grassley noted, in writing, that she seemed to support the use of “foreign law sources” in Supreme Court decisions and asked her when she believes it is relevant to interpreting the U.S. Constitution. Nathan said foreign law would have “no relevance to my interpretation of the U.S. Constitution.” But she acknowledged that there is “an important debate” on “what role the Supreme Court’s reference to foreign law is playing in the Court’s decision….”

“If confirmed,” responded Nathan, “I would follow binding Supreme Court precedent in this and all areas.”

The four votes against Nathan’s nomination came from Republicans only. Senator Tom Coburn (R-Okla.) asked to submit a written statement concerning his vote against Nathan. His office could not provide a copy of that statement before deadline.

At Thursday’s committee meeting, Grassley asked for roll call votes only for Nathan and Susan Hickey, a nominee to the U.S. District Court for Western Arkansas. He said they both “failed to meet” the American Bar Association’s proposed standards for qualification to the federal bench. Grassley noted during Nathan’s hearing in June and again Thursday that the ABA suggests “at least 12 years’ experience in the practice of law” and “substantial courtroom and trial experience.”

“I’m not sure I can get 12 years of legal and judicial experience” out of Nathan’s resume,” said Grassley.

And Grassley admonished President Obama to “refrain from sending us nominees who have limited experience or who fail to meet the ABA guidelines.”

In fact, the majority of ABA members who provide guidance to the Senate concerning nominees characterized Nathan as “qualified,” but a minority said she was “not qualified.” And the ABA standards also note that there is merit in “experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses….” This similar experience, say the ABA guidelines, “may compensate for a prospective nominee’s lack of substantial courtroom experience.”

Nathan obtained her law degree from Cornell Law School in 2000 and was admitted to the bar of New York in 2003 and the bar of Washington, D.C. in 2004. She served as Associate White House Counsel from January 2009 to July 2010 and as special counsel to the New York State Solicitor General since September 2010. She was also a visiting assistant professor of law at Fordham University Law School from 2006 to 2008.

In April, the Committee voted to advance the nomination of openly gay attorney Paul Oetken and three other federal district court nominees by unanimous voice vote. The full Senate has yet to take up those nomination.

Meanwhile, there continues to be no movement at all on the nomination of openly gay attorney Edward DuMont. DuMont was nominated to the Federal Circuit appeals court bench in April 2010. He has not yet received a confirmation hearing.