A group of Congress members have sent a letter to Majority Leader Mitch McConnell and Democratic Leader Chuck Schumer urging the Senate not to confirm attorney Howard Nielson to join the U.S. District Court of Utah ahead of the vote, scheduled for Tuesday.
“With hate crimes on the rise and important protections under assault, members of the LGBT community are relying on the courts to uphold their constitutional rights,” nearly 60 lawmakers wrote in the letter. “Mr. Nielson’s record raises serious concerns about his ability to be a neutral arbiter of the law in these cases; his own choices and statements have made him unfit for confirmation to the U.S. District Court for the District of Utah.”
Among the signers were several members of the LGBT Equality Caucus, including out members Sean Patrick Maloney, Mark Takano, Mark Pocan, David Cicilline, Angie Craig, and Sharice Davids. The letter-signing effort was spearheaded by caucus member Rep. Donald McEachin.
In a statement sent to Out, McEachen added that Nielson “has made baseless and profoundly offensive arguments in court against the LGBTQ community. We cannot afford to confirm Mr. Nielson, another problematic candidate for a lifetime appointment, who may well use his position on the bench to erode important civil rights protections. We need federal judges who are committed to protecting all Americans’ constitutional freedoms, and I strongly urge my Senate colleagues to oppose his nomination during this week’s vote.”
Nielson, a constitutional law expert, is a partner at the law firm Cooper & Kirk. He’s also taught at the J. Reuben Clark Law School at Brigham Young University, according to his firm’s bio. He served in the Justice Department during George W. Bush’s first term and clerked for retired Supreme Court Justice Anthony Kennedy in 1998-99.
According to the Leadership Conference on Civil and Human Rights, after District Court Judge Vaughn Walker issued an injunction to stop California from enforcing the same-sex marriage ban created by Proposition 8 in 2008, Nielson filed a motion to vacate the judgement because Walker is gay. That judgement was denied by another judge.
A few years later, when the marriage equality case Obergefell v. Hodges made its way to the Supreme Court in 2015, Nielson co-wrote an amicus brief that stated same-sex couples were largely unfit parents and that “through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” The brief went on to say, “it is plainly reasonable for a State to maintain a unique institution to address the unique societal risks and benefits that arise from the unique procreative potential of sexual relationships between men and women.”
Sarah Warbelow, HRC’s legal director, said in a statement that Nelson has also stated that “being gay is a choice,” and had previously come out as being in favor of conversion therapy techniques.
Additionally, Nielson took on an affirmative action case pro bono in 2013, writing an amicus brief for a white law school applicant who was denied admission in the case, Schuette v. Coalition to Defend Affirmative Action. He also wrote amicus briefs on behalf of Congressional Republicans for lawsuits demanding that Texas be allowed to uphold restrictions on abortion. That argument was rejected by the court in 2016.
“One of Donald Trump’s biggest campaign promises was to stack the courts with anti-choice judges who would create a pipeline for overturning Roe v. Wade and Howard Nielson is the perfect example,” said NARAL Pro-Choice America Vice President Adrienne Kimmell said in a statement. “Nielson has a troubling anti-choice and anti-LGBTQ record and this nomination for a lifetime appointment will give him the power to shape our country in his out-of-touch worldview for decades to come.”