Mark Bennett was confirmed to the Ninth Circuit on Tuesday despite a majority of Republican senators voting against his nomination over concerns with his record on gun rights.
In a vote of 72 to 27, the Senate confirmed Bennett. Twenty-three Republicans voted for Bennett while 27 voted against him. All 49 Democrats in the Senate voted for Bennett's nomination.
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Questions about Bennett's record were first raised during hearings in the Judiciary Committee. Sen. Ted Cruz (R., Texas) described the record of the former Republican attorney general of Hawaii 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," Cruz said in a committee meeting on Thursday. "Most significantly, he has been an aggressive advocate for undermining the Second Amendment."
Cruz said he was particularly concerned by Bennett's involvement with an amicus brief in the Heller case arguing that the Second Amendment was only intended to protect state militias from federal interference and should not apply to state laws. In Heller v. D.C., the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms. In McDonald v. Chicago, the Court explicitly rejected the argument made in the brief Bennett signed on to by extending its conclusions in Heller to the states.
During his hearing, Bennett told the committee that he would abide by all Supreme Court precedents.
"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."
His assurances were not enough to convince a majority of Republicans in the Senate. His nomination, however, appears to have satisfied the Democratic caucus. Despite showing strong opposition to most of President Trump's judicial nominations, Democrats chose not to block Bennett's nomination and voted unanimously in favor of him.
Sen. Mazie K. Hirono (D., Hawaii) praised the nomination of Bennett and said it was an example of how the so-called blue slip process, which requires a nominee's home state senators to sign off on them, can produce bipartisan nominees.
"Mr. Bennett's nomination was the result of a process of meaningful consultation that the White House Counsel engaged in with Sen. Schatz (D., Hawaii) and with me," Hirono said during a 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 had bypassed the "blue slip" process on a pair of judicial nominees in late 2017, calling it a "courtesy." It's not clear why they reverted to the process for Bennett's nomination though the requirement that the seat be filled by a nominee from deep-blue Hawaii may have played a role.
Some of the Republicans who voted for Bennett said they believed he was a qualified nominee and didn't judge him by actions he took on behalf of the state of Hawaii.
"Bennett was acting as a lawyer representing his client," Conn Carroll, a spokesman for Republican senator Mike Lee of Utah, told the Free Beacon after Bennett's nomination passed through committee. "We always say you can't necessarily draw conclusions about a lawyer's views from his or her advocacy, and we mean it."
"Regarding Chairman Grassley's vote, there's no question that Mr. Bennett is highly qualified to serve as a circuit judge," Taylor Foy, a spokesperson for the Judiciary Committee and Chairman Chuck Grassley (R., Iowa), told the Free Beacon after the committee vote. "After a thorough review of Mr. Bennett's history and qualifications, Sen. 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."