Bench Memos

Law & the Courts

Leahy’s ‘Courtesy’

At last Thursday’s Senate Judiciary Committee markup, Senator Patrick Leahy had the gall to complain that he was not being shown due courtesy by Republicans on the nomination of Vermont supreme court justice Beth Robinson for a Second Circuit seat in Vermont.

Under Committee rules, Democrats need every one of their members to be present in order to report to the Senate floor a nominee who has no Republican support—and the Democrats were down a senator. So they were unable to report out Robinson (or Ninth Circuit nominee Jennifer Sung). Leahy expressed his frustration at the end, saying, “I’m sorry that some of my colleagues are unwilling to move forward just so we can get her on [the Senate floor]. I’m not getting the courtesy I supplied to numerous Republicans around this bench when I was chairman.”

Given Leahy’s previous conduct as chairman and actual concerns with Robinson, his complaint is beyond brazen.

From 2007 until 2009, then-Chairman Leahy refused to give a hearing to Judge Bob Conrad of the Western District of North Carolina on his nomination to the Fourth Circuit. A longtime federal prosecutor, Conrad handled highly sensitive matters during the Clinton Administration and then was appointed by President George W. Bush as U.S. Attorney for the Western District of North Carolina. In 2005 he became a federal judge in that same district. The ABA judicial-evaluations committee unanimously gave Conrad’s nomination to the Fourth Circuit its highest rating of “well qualified,” and Conrad had the strong support of both North Carolina senators.

The seat to which Conrad was nominated had long stood vacant because of concerted Democrat opposition to a prior nominee, Judge Terrence Boyle. Boyle’s nomination languished from 2001 forward because then-Senator John Edwards refused to return a blue slip for him. But when Senator Burr replaced Edwards in 2005 and supported the Boyle nomination, Leahy and his fellow Democrats proceeded to filibuster it.

Judge Conrad languished in the Judiciary Committee for months with no hearing forthcoming from then-Chairman Leahy. In April 2008, Leahy tried to defend his obstruction by accusing Conrad of making “anti-Catholic comments about a nun.”  In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” In short, Conrad had been defending the Catholic church from the anti-Catholic comments he believed the nun to have made.

But truth didn’t matter to Leahy. Liberal activists said that Judge Conrad couldn’t get promoted so Leahy deployed his smear in order to excuse his obstruction.

And what of Justice Robinson? There’s a nominee who is, in fact, herself credibly accused of bias against Catholics. As a young attorney, Robinson sued a Catholic couple, the Bakers, who ran a printing company that refused to print materials for Vermont Catholics for Free Choice. CatholicVote has laid out the controversy well. In short—long before cases like Masterpiece Cakeshop made these controversies national news—the Bakers refused to print the materials because, as Catholics, they didn’t think a Catholic could properly be “pro-choice.” Justice Robinson, in turn, sued them all the way to the Vermont supreme court over it.

So here we are watching Leahy call for courtesy from Republicans to move a nominee who has taken actual anti-Catholic positions, after he spent almost two years unilaterally blocking a devout Catholic nominee on false charges of anti-Catholicism.

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