The elevation of an Alameda County Superior Court judge to the federal bench is being delayed by the fact that California Senator Alex Padilla was absent Thursday, depriving Democrats of their one-vote majority on the Senate Judiciary Committee.
The nomination of Alameda County Judge Eumi K. Lee to serve on the federal bench is being held up because Senator Alex Padilla was out Thursday due to a case of COVID-19, with cases seemingly cropping up on Capitol Hill — newly appointed California Senator Laphonza Butler was also out with COVID just the other week.
As the Chronicle reports, Judiciary Committee Chairman Dick Durbin [D-IL] said Thursday that the vote on Lee's confirmation was delayed until at least next week, without giving a reason for the delay. But the obvious reason is that the vote on Judge Lee's confirmation would likely be deadlocked 10-10 in the absence of any Democratic member.
In brighter news, the committee on Thursday welcomed new member Laphonza Butler. There was speculation that Republicans might try to forestall any new Democratic appointment to the all-important committee following the death of Dianne Feinstein last month. But senior Republicans in the Senate, including ranking committee member Lindsay Graham, indicated that they would not obstruct Feinstein's replacement — perhaps out of respect for their long-serving, late colleague.
As CNN reports, in addition to being the first known Black lesbian in the Senate, Buler becomes the first openly LGBTQ member of the Judiciary Committee. (Ahem, Ms. Graham.)
"I think Sen. Butler’s appointment to the Judiciary Committee is really momentous," says Alex Aronson, a former chief counsel to committee member Sen. Sheldon Whitehouse [D-RI], in a statement to CNN. "She gives Chairman Durbin the majority he needs to resume the confirmation of President Biden’s judicial nominees, which needs to be an urgent priority for the Senate."
To date, 147 of President Joe Biden's nominees to the federal bench have been confirmed, 36 of those to appeals circuit courts, according to the American Constitution Society, which tracks nominations. In total, the Trump administration saw 234 of its nominees confirmed, including 54 to appeals circuit courts.
There has been bipartisan support for some recent judicial nominees, and as Courthouse News Service reports today, that was called out at Thursday's Judiciary Committee meeting.
"For those people that think Washington is completely broken, and that we somehow hate each other and the long knives are out all the time, I want to reassure them: That’s just some of the time,” said Texas Senator John Cornyn at the meeting, per Courthouse News. Cornyn praised Committee Chair Durbin for getting the Biden administration to nominate judges who receive some Republican support, particularly in the home states of committee members.
Those include Judge John Kazen, whose confirmation recently passed with a voice vote and bipartisan support, and who is currently a magistrate judge in the Southern District of Texas.
Alameda County Judge Eumi Lee falls in a different category, though, and Republicans on the committee reportedly grilled her on a couple of hot-button issues in her hearing. Per the Chronicle, Sen. John Kennedy (R-LA) brought up a 2010 Georgetown Law Review article that Lee wrote on transgender prisoners in California.
"You argued that male prisoners should be allowed to claim they are transgender in order to be assigned to female prison," Kennedy said.
When Lee tried to explain that she did not offer an opinion on the issue in the article, and she was only describing a panel discussion she moderated on the topic, Kennedy replied, "I don’t think you’ve been honest with this committee."
Senator Mike Lee [R-UT] also reportedly voiced concerns about Lee's membership in the Asian Law Caucus, and their support for things like affirmative action in college admissions.
If confirmed, Lee will serve in federal court in San Jose.
Chairman Durbin also expressed his welcome Thursday to Butler, who was attending her first meeting of the committee, per Courthouse News. "The issues we’re discussing on this committee are of great importance to our nation, and your input on behalf of the people of California is well taken," Durbin said.