‘He was an aggressive advocate…for gay marriage…he has been an aggressive advocate for undermining the Second Amendment…’
(Quin Hillyer, Liberty Headlines) Despite all the flak President Trump has received from Democrats for his generally conservative judicial nominees, one nominee is drawing more opposition from the political Right than from liberal Democrats.
Some conservatives, though, say nominee Mark Bennett is the best Trump can push through from the liberal state of Hawaii.
In an 18-2 vote, the Senate Judiciary Committee last week approved Bennett, a longtime Republican activist and former Hawaii attorney general under moderate Republican governor Linda Lingle, for a spot on the Ninth Circuit U.S. Court of Appeals.
Every Democrat voted for Bennett, but conservative Republicans Ted Cruz of Texas and Ben Sasse of Nebraska opposed him.
The nomination now goes to the full Senate, where some conservative groups hope to rally opposition.
The group Gun Owners of America not only is strenuously opposing Bennett’s nomination, but trying to raise money for the battle.
Calling Bennett a “leftist, anti-gunner,” the group points to a friend-of-the-court brief Bennett joined while AG of Hawaii in the landmark District of Columbia v. Heller gun rights case.
The brief, whose arguments were rejected by the Supreme Court majority implicitly in Hellerand more explicitly in the later McDonald v. Chicago case, argued that the Second Amendment provides individual gun rights only against federal laws, not against state restrictions.
“Preserving state sovereignty in this area,” Bennett and other liberal-state AGs wrote, “is of paramount importance.”
After he was nominated, Bennett provided a written response to Sasse’s questions about the gun case.
“While attorney general of Hawaii, I did not believe a state’s amicus brief was intended to reflect the personal views of the lawyer who wrote it (or the lawyers whose states joined it), but should instead reflect the interests of the states which joined it,” he wrote. “Thus, I believed that amicus briefs Hawaii joined should present reasonable and reasonably supported legal arguments in Hawaii’s interests.”
Some conservatives bought the explanation.
“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.”
But Sasse, Cruz, and other conservatives also object to Bennett’s legal opposition to the free-speech rights acknowledged by the Supreme Court in the seminal Citizens United campaign finance case, and for other parts of his record they called “troubling.”
“He was an aggressive advocate, as attorney general, for gay marriage,” said Cruz in a committee meeting on Thursday. “He was an aggressive advocate demonstrating hostility to the First Amendment and political speech. Most significantly, he has been an aggressive advocate for undermining the Second Amendment.”
Adding to conservative concerns was the glee with which Democratic senators and liberal groups welcomed the nomination.
Hawaii’s liberal Sens. Brian Schatz and Mazie Hirono both praised the selection – “I am confident that he will be a fair, dispassionate jurist who will carefully follow the rule of law while reflecting Hawaii’s values, [italics added]” Schatz said– and not even the left-wing Alliance for Justice could bring itself to officially oppose him.
Despite his history of high-profile stances on the liberal side of some court cases (including one conservatives said eroded property rights), Bennett has long been a Republican – or at least liberal Hawaii’s version of one.
He clerked for a Republican federal district judge, was hired as an assistant U.S. Attorney by Reagan appointees, served as the state party’s general counsel in 2001-02, and has made most of his major political donations to Republicans, including to New Hampshire’s onetime U.S. Sen. Kelly Ayotte.
As noted by Sen. Hirono’s office, “Mr. Bennett earned his B.A., summa cum laude, from Union College, and his J.D., magna cum laude, from Cornell Law School, where he was inducted into the Order of the Coif and served on the board of editors of the Cornell Law Review.”