California judge’s confirmation delayed
A Senate Judiciary Committee vote on President Joe Biden’s contested nomination of Alameda County Superior Court Judge Eumi Lee to a federal judgeship was postponed Thursday when Sen. Alex Padilla was absent because he has COVID-19, apparently leaving the committee equally divided on Lee’s confirmation.
Lee, the first Korean American judge on the Alameda County court, was appointed to that court by Gov. Jerry Brown in 2018 after 13 years as a clinical law professor at UC Hastings College of the Law, now UC College of the Law, San Francisco. She was a co-founder of the Hastings Institute for Criminal Justice.
Biden nominated her in July to succeed longtime U.S. District Judge William Orrick III, who transferred in May to senior status, with a reduced caseload. If confirmed, she would be based in San Jose.
At a Judiciary Committee hearing last month, Sen. John Kennedy, R-La, challenged Lee over her 2010 Georgetown Law Review article 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 told the nominee.
Lee replied that she had been describing the discussion of a panel she moderated on the topic, and that she had refrained from expressing her own views because the issue could reach her court.
“I don’t think you’ve been honest with this committee,” Kennedy told her.
Another Republican senator, Mike Lee of Utah, questioned Lee about her past membership on the board of the Asian Law Caucus, which supports affirmative action for racial minorities in college admissions. Lee replied that she had been on the board more than a decade ago and that she would adhere to the Supreme Court’s recent rulings that found affirmative action to be illegal racial discrimination.
Democrats have an 11-10 majority on the Judiciary Committee, but Padilla, D-Calif., has been unable to attend after being diagnosed with COVID-19 on Monday. Committee Chairman Dick Durbin, D-Ill., did not announce a reason for postponing Lee’s confirmation vote, but Padilla’s absence probably would have left the panel deadlocked 10-10, said Carl Tobias, a University of Richmond law professor who tracks judicial nominations.
Similar deadlocks occurred for nearly three months earlier this year when Sen. Dianne Feinstein, D-Calif., was ill and unable to attend Judiciary Committee hearings. Citing the delay in judicial confirmations and other proceedings in the closely divided Senate, some Democrats urged Feinstein to resign, but she refused, and Republicans said that if she temporarily stepped down from the committee, they would refuse to allow another senator to take her place.
She returned to work in May and was able to cast deciding votes on judicial nominations before her death Sept. 29 at age 90.
Sen. Laphonza Butler, appointed by Gov. Gavin Newsom as Feinstein’s interim replacement, was also recently diagnosed with COVID-19 but has recovered and took part in Thursday’s Judiciary Committee hearing.