President Donald Trump's nominee for a seat on the Ninth Circuit Court of Appeals has garnered the disapproval of some Republican senators for his record on First and Second Amendment issues.
Former Republican attorney general of Hawaii Mark Bennett saw senators Ted Cruz (R., Tex.) and Ben Sasse (R., Neb.) break with the rest of the Judicial Committee and vote against his nomination last week. The senators said their decision was driven by a pair of amicus briefs Bennett signed on to opposing landmark gun rights and free speech Supreme Court decisions. The two Republicans expressed skepticism over appointing Bennett to a lifetime position in the federal judiciary given his record, despite Bennett's assurances that he would abide by binding precedents if confirmed.
Cruz described Bennett's record as "troubling."
"He was an aggressive advocate, as attorney general, for gay marriage. He was an aggressive advocate demonstrating hostility to the First Amendment and political speech," he said in a committee meeting on Thursday. "Most significantly, he has been an aggressive advocate for undermining the Second Amendment."
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 Beacon regarding the senator's vote.
Cruz said he was especially worried about Bennett's decision to sign on to an amicus brief in the Heller 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."
The Supreme Court ruled in Heller that the Second Amendment guarantees an individual right. The Court later rejected the argument made in the brief Bennett signed on to by concluding that Second Amendment rights extend to state laws in McDonald v. Chicago.
During his testimony before the committee in April, Bennett said his decision to sign onto the briefs in the Heller and Citizens United cases were based on what he thought were in the best interest of Hawaii at the time. He said he would honor the decisions if he were to be confirmed.
"If I am fortunate enough to be confirmed on the Ninth Circuit Court of Appeals, the decision of the Supreme Court in Citizens United and all other cases dealing with the First Amendment, an obviously important right in our Constitution, would be binding precedent that I absolutely commit to follow," Bennett said. "The Supreme Court's decisions in Heller and McDonald are absolutely binding on the circuit courts of appeal and, if I were fortunate enough to be confirmed, I would absolutely apply and uphold them as with all other precedent of the Supreme Court."
"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."
Senator Mazie K. Hirono (D., Hawaii) praised Bennett's nomination as an example of the Senate's so-called blue slip process that requires sign offs from a nominee's home state senators.
"Mr. Bennett’s nomination was the result of a process of meaningful consultation that the White House Counsel engaged in with Senator Schatz (D., Hawaii) and with me," Hirono said at the Thursday committee meeting. "At the beginning of the administration, we began this conversation with the White House that went back and forth in a respectful way, until we were all able to agree on the nominees. Instead of foisting ideological nominees on us, the White House should follow the Hawaii model and collaborate with home-state senators to nominate consensus judicial candidates."
Republicans circumvented the "blue slip" process, which they described as a "courtesy," for a pair of nominees late last year. It is unclear why Republicans appear to revert to the system for Bennett's nomination.
Taylor Foy, a spokesperson for the Judiciary Committee and Chairman Chuck Grassley (R., Iowa), told the Free Beacon the committee vetted Bennett's history, and each member of the committee made up their own mind on how to vote.
"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."
Foy did not respond to specific questions about Bennett's positions on gun rights and free-speech issues.
Gun-rights groups have praised President Trump's judicial nominees through the first year-and-a-half of his presidency. His nomination of Neil Gorsuch to the Supreme Court was widely praised by gun-rights advocates.
It is unclear what major gun-rights groups think of Bennett's nomination. The National Rifle Association did not comment on Bennett's nomination by publication time. The Second Amendment Foundation declined to comment on the nomination "due to pending litigation."
The Trump administration did not respond to a request for comment, but Bennett will now face a full Senate vote for confirmation. The vote has not yet been scheduled.
Updated 2:30 p.m. to include comment from Senator Mike Lee's office (R., Utah).