What does it say about our federal judicial nominees that?one-fourth of them are not?responding to the party membership question on the U.S. Senate questionnaire?
Yesterday, I wrote a piece about Judge Douglas Rayes, who only a year ago claimed very publicly to be a lifelong Republican on an application he filled out for a state supreme court bench. However, he failed to state one way or the other on the?U.S. Senate Judiciary’s Questionnaire?whether he had ever?been a member of?a political party. Out of abundance of fairness, I decided to compare his answer to the answers of?all the other?federal judicial nominees currently pending. What I found shocked me.
Of the nominees currently pending,?one fourth did not?state whether they had?claimed membership in?a political party at any time in their lives. Not a single nominee just?flat out said, “I am a registered X” or “I am a member of X party”?or “I used to be a member of X party.” I gave credit for any answer that in any way indicated, or from which it could be extrapolated,?that?a person had ever been?a member of?or active in a particular party, or not. I even gave credit to the nominee who simply answered “none” in answer to the entire question.
Gregg Jeffrey Costa, a nominee to the Fifth Circuit Court of Appeals in New Orleans, answered that question fully, starting with his days as a college Democrat. Ten gold stars for actually answering the?question in such detail. There were?other fulsome answers given by a number of nominees. But so many gave a less than fully honest,?boilerplate, virtually?identical, cut-and-paste, apparently standard non-answer to this question of party membership.
I’ve practiced in federal court for many years and, quite frankly, I would be too terrified of being accused of dishonesty to not fully and directly answer under oath?a question being asked of me by a U.S. Senate committee or a federal judge. One of my proudest moments as a lawyer was standing before a U.S. District Court judge as he praised me for my exceptional candor to?the tribunal. As an assistant attorney general in Texas, I found evidence that the Travis County District Attorney had lied about a material issue in my case, and I had to go back before this federal judge and correct the case I had previously presented. I felt that my duty of honesty to the tribunal trumped everything, including whether I won or lost my case.
So the idea that a federal judicial nominee would glide over the truth of a simple question is completely?foreign to my thinking as a lawyer. Which may explain why I am not currently practicing law.
In the law, there is an objection you make when someone does not fully answer a question, or does not answer the question asked: “Objection, your Honor. The witness’s answer is nonresponsive.” All judges are, or should be, familiar with this objection, and therefore are fully aware when their answer to a question does or does not fully answer the question asked.
All these judges must also be familiar with the idea that it is possible to commit an act, like lying, by omission.
To refresh everyone’s memory, the question in full asks:
List all memberships and offices held in, and services rendered, whether compensated or not, to any political party or elections committee. If you have ever played a role or played a position in a political campaign, identify the particulars of the campaign, including the candidates, dates of the campaign, your titles and responsibilities.
That’s seems simple enough, doesn’t it? Yet the answer to this question within a larger?compound question is dodged repeatedly. It looks like many candidates used the same legal advisor, as many did give?the same boilerplate answer.? Nobody repeats the term membership as they do the other terms in the question. Instead, they skip to, “I have never held an office in or rendered services to any political party.” “Profiles In Courage” these?question dodgers?are not.
Those who gave answers that evaded the question of party membership or were otherwise not fully responsive to the question asked, are:
11th Circuit nominee Robin S. Rosenbaum (“I have never held office in or rendered services to any political party or election committee. I have never held a position or played a role in a political campaign.”);
11th Circuit nominee Julie E. Carnes (“In 1964, my father, Charles Carnes, ran for a seat in the Georgia House of Representatives. I was 14 years old at the time and my mother, father, and I spent the summer handing out campaign flyers in our district.”);
Ninth Circuit nominee John B. Owens (“I have not held any offices in nor rendered any services for any political party, election committee, or political campaign.”);
Tenth Circuit nominee Nancy L. Mortiz?(“I have never held an office in any political party, nor have I held a position or played a role in a political campaign.”);
Tenth Circuit nominee Carolyn B. McHugh (“I have never held an office in or rendered services to any political party or election committee. I have never played a role in a political campaign.” Her letter was generated on her official state letterhead as a member of the Supreme Court of Utah, which in some states would be an ethics violation or a crime regarding misuse of state resources. I am not sure about the legality of that in?Utah.);
United States District Court (hereafter “USDC”)?for the District of Nevada nominee Richard Franklin Boulware II (“I have never held any position within a political party. I have not held a position or played a role in a political campaign.”);
USDC for the Northern District of?Georgia nominee Michael Patrick Boggs?(Denied any party membership but was a member of the Georgia General Assembly, ran for office, and?admitted to attending?a reception for George W. Bush covered in an article entitled, “Some Democrats Do Have a Conscience.”);
USDC for the District of Arizona nominee John Joseph Tuchi (“I have never held?office in or rendered services, whether compensated or not, to any political party or election committee. I have never held a position or played a role in a political campaign.”);
USDC for the District of California nominee Cynthia Ann Bashant (“I have not held any office in a political party or an election committee. I have endorsed the following judges for judicial office in non-partisan campaigns . . . .”);
USDC for the Eastern District of Pennsylvania nominee Edward George Smith (“I have not held office in or rendered services to any political party or election committee. I have not held a position or played a role in a political campaign other than the two listed in my response to 15(a).” Also submitted a letter on state letterhead.);
USDC for the District of Kansas nominee Daniel Dale Crabtree (“I have not held office or rendered service to a political party or election committee.” Then goes on to say he campaigned for various relatives, party affiliation not stated.);
USDC for the Eastern District of Arkansas nominee James Maxwell Moody, Jr. (“I have not held any offices in or rendered any services to any political party or election committee. I have not held a position or played a role in a political campaign.”);
USDC for the Eastern District of North Carolina nominee Jennifer Prescod May-Parker (“I have never held office in or rendered service to any political party or election committee. I have never held a position or played a role in any political campaign.”);
USDC for the District of South Carolina Bruce Howe Hendricks (“I have never held any office or rendered services to a political party or election committee. I have never held a position or played a role in a political campaign.”).
And, as already stated in a previous article, USDC for the District of Arizona nominee Douglas Rayes (“I have never held an office in or rendered any services to any political party or election committee. I have never played a role in a political campaign nor have I volunteered in a political campaign.”)
Just last year, Douglas Rayes claimed to be a “lifelong Republican” in an application published for statewide perusal in his bid for a bench on the Arizona Supreme Court. Lifelong. Republican. But it cannot be denied that all applicants appear to be allergic to directly addressing the term membership, with a quarter of the 60?applicants managing to skip over the question without answering it at all.
I singled out Judge Rayes because he announced his lifelong Republican Party affiliation, whatever he meant by that,?just last year on another application for a state supreme court bench?that asked a similar question. That application was?published on the internet. Everybody in Arizona, more than six million people, may have seen that answer. I am going to go out on a limb here and call Judge Rayes’s answer to the Senate Judiciary Committee a lie by omission. But there may be others just as blandly evasive and not quite totally forthcoming. As a lawyer who takes my duty of honesty to the tribunal, any tribunal, very seriously, I find this result disappointing and puzzling. As Elizabeth Warren starts asking tough questions about our cookie cutter corporate judiciary, you need look no further than the slippery words of the nominees themselves.
