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Republicans Advance More Dangerously Unqualified Nominees

News & Analysis

On January 18, 2018, the Senate Judiciary Committee voted to advance a large number of nominees, six of whom we have opposed as dangerously unqualified: Thomas Farr; Eric Dreiband; Mark Norris; Matthew Kacsmaryk; Kyle Duncan; and David Stras. Five of these men (yes, they’re all men) have been nominated to lifetime positions on the federal bench. The sixth is an executive nominee to the Justice Department. All six have disturbing records, making concerns we have already raised about how this session continues Republican rubber-stamping of Trump nominees even more serious.

1. Thomas Farr (Eastern District of North Carolina)

Thomas Farr went into his hearing with a public record of hostility to African Americans’ voting rights. As if that weren’t bad enough, he gave a response to written questions from Ranking Member Dianne Feinstein about that record that was subsequently undermined by contemporaneous written evidence.

When GOP candidates and officials are taken to court for voter suppression, they turn to Farr to take their cases. He defended the state’s monster voter suppression law, which was struck down by the Fourth Circuit. The court found that the legislation was actually intended to make voting harder for African Americans, and that its provisions “target[ed] African Americans with almost surgical precision.” He also defended racially gerrymandered congressional districts designed by his party, which the Supreme Court found unconstitutional.

In 2016, when North Carolina stripped residents of the right to go to court when they are victims of unlawful discrimination, Farr expressed his personal support. Indeed, his career has been dedicated to undermining anti-discrimination laws, suppressing the vote, and weakening unions.

Especially concerning was his involvement in a notorious voter suppression effort by the Jesse Helms campaign in 1990. The campaign sent more than 100,000 postcards to mostly African-American voters, suggesting not only that they were not eligible to vote, but that they risked prosecution for voting. Farr worked with the campaign at a high level, but in his response to written questions, he assured senators that he had not known of the postcards until after they were sent.

Afterward, evidence arose seriously undermining that claim, showing he was at a “ballot security” planning meeting where the postcards were discussed. Rev. William Barber described this as “disturbing new information indicating that Farr misrepresented his past to the Committee and showing Farr’s connections to the worst elements of white supremacy.” Sen. Cory Booker wrote to Farr seeking an explanation. At today’s committee meeting, Booker noted that Farr’s response raised even more questions, and the senator requested a follow-up hearing to question Farr about the apparent discrepancy with his sworn testimony. However, Chairman Chuck Grassley refused, and the committee voted on a party-line basis to advance his nomination to the full Senate.

Thomas Farr has worked hard to disenfranchise people with roots in countries called “shitholes” by the president who wants to give him a lifetime position as a federal judge in the North Carolina district with the largest African American population.

2. Eric Dreiband (head of the Civil Rights Division of the Justice Department)

President Trump’s nominee to lead the Civil Rights Division of the Justice Department is a startlingly inappropriate choice. Eric Dreiband has no experience with most issues the division addresses. He has no experience working on voting rights, hate crimes, police-community relations, religious discrimination, housing discrimination, civil rights in education, or disability rights. His expertise is in one area only—employment discrimination—but he has not worked to eradicate it. Instead, he long ago chose a career defending large corporations from their employees’ charges of unlawful discrimination. In his role as an advocate, he presents legal theories that help his clients but which would also make it far easier for employers to engage in discrimination.

In 2008, he appeared before Congress and testified in personal opposition to the Lilly Ledbetter Fair Pay Act, which corrected the Supreme Court’s misinterpretation and narrowing of Title VII in Ledbetter v. Goodyear Tire and Rubber. The bill Dreiband opposed eventually became law and restored women’s ability to have meaningful restitution for longtime pay discrimination that they had been unaware of.

In 2010, he provided the committee with personal testimony against the Protecting Older Workers Against Discrimination Act. This bill was introduced to counteract the Supreme Court’s imposing a higher burden of proof on older employees suing for discrimination in violation of the Age Discrimination in Employment Act than under Title VII.

Dreiband has routinely criticized the very laws he’d be in charge of enforcing. This prompted Sen. Leahy to observe before the committee vote that he “honestly couldn't think of a more uniquely unqualified nominee to defend and enforce the core civil rights laws that codify the values of a just and tolerant society.”

3. Mark Norris (Western District of Tennessee)

As the Tennessee Senate’s Majority Leader for over a decade (and a member of that body since 2000) Mark Norris has made statements and advocated policies that have so loudly proclaimed certain people as outsiders in our society, that it is difficult to believe members of those communities could have confidence that they would stand as equals in his courtroom.

  • He supported the successful effort to nullify a Memphis law prohibiting discrimination against LGBTQ people.
  • After the Obergefell marriage equality decision, Norris intervened in a lesbian couple’s divorce to urge the judge not to treat them as married for the purpose of child custody laws, an effort the judge recognized as an effort to violate the separation of powers.
  • He helped make it harder to remove or rename monuments designed to promote white supremacy and instill fear in African Americans.
  • He fought to prevent Syrian refugees from resettling in Tennessee and posted highly inflammatory material linking them to ISIS terrorists.

Mark Norris has an “us vs. them” worldview, and millions of people throughout Tennessee cannot help but be aware which side Norris puts them on.

4. Matthew Kacsmaryk (Northern District of Texas)

Matthew Kacsmaryk is the deputy general counsel at First Liberty Institute (FLI), a Religious Right legal group that opposes extending anti-discrimination protection to LGBTQ people in areas including labor rights, hospital patient rights, fair housing, and programs helping women under the Violence Against Women Act. All these and more clearly reflect a belief by Kacsmaryk that such deprivations are lawful.

He has a wildly distorted view of the decades-long movement to end legal restrictions on divorce, abortion rights, and LGBTQ equality. He portrays its leaders as “sexual libertines” acting on the basis of “elitist postmodern philosophy.” He has written that this movement has:

sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.

Passages such as these, or his use of quotation marks around terms like “sexual orientation,” “gender identity,” “LGBT” and “marriage” (when applied to same-sex couples) reveal a mindset that seems closed to the idea that LGBTQ people have any dignity or character.

5. Kyle Duncan (5th Circuit Court of Appeals)

Kyle Duncan’s career demonstrates a commitment to depriving targeted groups of their basic rights and dignity. He has helped lead the far right’s efforts to transform religious liberty from a shield into a sword to dismantle laws that protect people from harmful discrimination. As general counsel of the Becket Fund and then founder of his own boutique law firm, he:

  • represented Hobby Lobby in its fight to deny women employees legally required contraception health insurance coverage;
  • argued that Texas TRAP law restrictions protect women, a position rejected by the Supreme Court, which struck down the laws as unconstitutional;
  • helped defend North Carolina’s monster voter suppression law and a restrictive Texas voter ID law that a federal judge concluded had been adopted with the intent to discriminate; and
  • misapprehends LGBTQ equality as a zero-sum struggle in which opponents’ rights are diminished when discrimination against LGBTQ people ends.

6. David Stras (8th Circuit Court of Appeals)

Traditionally, the Judiciary Committee does not consider judicial nominees unless both home state senators have given their support for a hearing. Presidents usually engage in meaningful consultation with home state senators in order to find a consensus nominee. However, President Trump did not consult with Minnesota’s senators when he nominated David Stras to the Eighth Circuit. And in a sharp departure from tradition, chairman Chuck Grassley held a hearing for Stras even though he did not have the support of then-Sen. Al Franken. And today, Grassley set a vote on Stras even though Minnesota’s new senator, Sen. Tina Smith, did not even receive a blue slip or get consulted on his nomination.

Stras appeared on then-candidate Donald Trump’s initial list of 11 potential Supreme Court nominees, a list created and handed to him by the far right Federalist Society and Heritage Foundation. That alone raises extremely serious concerns about his respect for the values of equality and justice for all. (See: Neil Gorsuch)

All six nominees received the unanimous support of Republicans on the Judiciary Committee. All six will face significant opposition from Democrats on the Senate floor.