Mark Bennett, President Donald Trump’s second nominee for the 9th U.S. Circuit Court of Appeals, signed several amicus (or “friend of the court”) briefs breaking from conservative legal orthodoxy on the First and Second Amendments during his tenure as Hawaii Attorney General.
His support for the briefs attracted scrutiny from Republican senators during his confirmation hearing Wednesday before the Senate Judiciary Committee, a rare display for a caucus otherwise elated with Trump’s judicial picks.
“I will confess that some of the positions you took as Hawaii Attorney General give me pause,” GOP Sen. Ted Cruz of Texas said during the hearing.
The senator’s office would not confirm if Cruz plans to support Bennett’s nomination.
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The briefs at issue were filed in several marquee Supreme Court cases, including D.C. v. Heller, a landmark Second Amendment dispute, and Citizens United v. FEC, a controversy concerning federal limits on corporate or non-profit political spending.
In the Heller case, Hawaii and five other states submitted an amicus brief urging the justices not to apply the Second Amendment against state governments. The fundamental question at issue in the case was whether the Constitution secured an individual right to possess firearms in the home for self-defense. If the Court announced such a right — which it later did — Hawaii and its amici feared state gun control laws would be jeopardized.
During Wednesday’s hearing, Bennett emphasized the brief’s primary purpose was confined to the federalism issue. Though the filing rehearses some of the arguments Washington, D.C., made to defend its gun control law, he said its main objective was to convince the Court not to decide on the matter of state applicability.
“The brief specifically said that the amicus states were not defending the particular pistol ban at issue, as a matter of public policy or otherwise,” he told Cruz. He later said he does not believe a government entity can ban the possession of guns.
Two years after Heller, the Court found the Second Amendment operates against the states in a case called McDonald v. Chicago.
Cruz also asked about Hawaii’s amicus brief in Citizens United. Though the brief did not support either party, Cruz feared Bennett’s support for the document betrayed a limited view of the First Amendment’s reach. The question in Citizens United was whether the federal government could impose limits on the campaign expenditures of corporations, labor unions, and non-profit organizations.
As in the Heller brief, Bennett replied that the filing does not primarily address the underlying controversy. Rather it urged the Court not to infringe on state laws which already restricted corporate politicking by requiring corporations to maintain segregated funds for political spending which are not drawn from general revenue.
Trump nominated Bennett for Hawaii’s 9th Circuit seat. He enjoys the support of both Hawaii’s senators, Democratic Sens. Brian Schatz and Mazie Hirono.
Hirono said Bennett’s selection was a testament to fruitful cooperation between the White House and senators representing states where judicial vacancies arise.
“I’ve been very critical about the lengths to which this administration is going to pack our federal courts with ideologically driven nominees,” she said during Wednesday’s hearing. “Unlike other circumstances over the last year where the administration failed to consult home state senators during the selection process, I worked with White House Counsel Don McGahn to come to an agreement on our slate of judicial nominees.”
A committee vote is expected in the coming weeks.
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