Mark James Bennett, of Hawaii, President Donald Trump’s nominee to be a 9th Circuit Judge, laughs during a U. S. Senate Judiciary Committee Hearing on Capitol Hill in Washington on Wednesday, April 11, 2018. At left is Sen. Brian Schatz, D-HI who spoke in Bennett’s behalf. Sen. Bill Cassidy, R-La. is at right. (AP Photo/Harry Hamburg)
One of the things that Republicans have been calling Trump’s biggest success is passing through the Senate a series of great judges to key federal roles, and it is not an incorrect claim. The fact of the matter is that Trump’s team has done great work in nominating federal judges and he should be commended for that.
There is one appointment, however, that is just baffling to me, and if you know who Mark Bennett is, you should be baffled as well.
Bennett is currently up for the 9th Circuit, a court that has proven time and again that the Constitution doesn’t really matter so much as feelings. If there is an opening in the 9th Circuit, we should find someone who is incredibly strong, constitutionally, and try to fight back.
However, Trump’s choice here does not pass that test.
There are two key cases in which Bennett has proven he is weak on some of our basic rights. The first is Citizens United, in which he joined an amicus brief as Hawaii’s attorney general. That brief ran counter to what the Supreme Court ultimately ruled – that corporations had First Amendment rights.
Bennett also signed onto an amicus brief in the Heller case, a major Second Amendment case before the Supreme Court. The amicus brief was signed by liberals around the country seeking to stop the court from ruling that the Second Amendment applied to state laws. Like the Citizen’s United brief, Bennett was on the wrong side.
Now, several Republicans have said that they have vetted Bennett and they believe he’s all right. Via the Free Beacon:
“Bennett was acting as a lawyer representing his client,” said Conn Carroll, a spokesman for Republican senator Mike Lee of Utah. “We always say you can’t necessarily draw conclusions about a lawyer’s views from his or her advocacy, and we mean it.”
“As it does with every nominee, the committee closely reviewed Mr. Bennett’s background and qualifications prior to senators casting their votes,” he said. “Committee members are welcome to vote however they choose.”
Foy said Grassley believes Bennett is a good nominee and will make a good judge.
“Regarding Chairman Grassley’s vote, there’s no question that Mr. Bennett is highly qualified to serve as a circuit judge,” he said. “After a thorough review of Mr. Bennett’s history and qualifications, Senator Grassley trusts that Mr. Bennett will apply the letter of the law as written as well as legal precedent rather than legislate from the bench.”
The fact that Hawaii’s two Democratic Senators approve of Bennett means that it’s likely he has bipartisan appeal and will pass given a floor vote, which is the next step for him. Bennett passed through the Senate Judiciary Committee with just two “No” votes, Ted Cruz and Ben Sasse.
Sasse’s office said the senator shares Cruz’s concerns on much of Bennett’s record.
“Senator Sasse has concerns about Mr. Bennett’s advocacy in Citizens United v. FEC and Heller v. District of Columbia,” James Wegmann, a Sasse spokesman, told the Washington Free Beaconregarding the senator’s vote.
Cruz said he was especially worried about Bennett’s decision to sign on to an amicus brief in theHeller case which argued that the Second Amendment was merely intended to protect state militias from federal interference and should not apply to state laws.
“Taking the position in the Heller case that the Second Amendment protects no individual right to bear arms whatsoever,” Cruz said in the meeting. “In my judgement that is an extreme position. It is grossly inconsistent with the text and original understanding of the Second Amendment and, so, I can’t, in good conscience, vote to confirm him for a lifetime position as a court of appeals judge on the ninth circuit.”
Bennett’s nomination heads to the floor for a vote next, although the date and time for that vote have not yet been set.
It could very well be the case that Bennett, a Republican, was just doing his job, but the past activism does cast a larger shadow over his nomination than some Republican Senators seem willing to admit. While it’s not like the 9th Circuit could get more liberal, Republicans should definitely not be party to it remaining such.
Bennett may be a great guy, but there has to be someone Trump can nominate to the 9th Circuit without this baggage or the questions that baggage raises.
Let your Senator know that Mark Bennett is not the type of guy you want to see a Republican President and Senate put into a lifetime position.