Watch Judicial Nominee Nusrat Choudhury Self-Destruct Under Questioning by Senator John Kennedy

This is about as discrediting a moment as I think I have ever seen in a judicial confirmation hearing: a district court nominee asked about a false statement she made at a public event, and excusing it by saying — repeating three times — that when she said it, she was speaking “in my role as an advocate.” This is not simply a matter of a nominee who — like most people — has occasionally been sloppy or gotten facts wrong in the past. It is about embracing the idea that advocates do not need to be bound by the facts and the truth.

For Democrats, Nusrat Choudhury represents diversity: When Chuck Schumer proposed her as a district judge in the Brooklyn-based Eastern District of New York, he tweeted that she would be “the 1st Bangladeshi American and the 2nd Muslim American to serve as a federal judge.” Biden’s press release on the announcement of the nomination of Choudhury and seven others to the bench in January touted how those choices “continue to fulfill the President’s promise to ensure that the nation’s courts reflect the diversity that is one of our greatest assets as a country.” Before even giving their names or professional qualifications, the White House release emphasized that “For example, this slate includes”:

• A nominee who would be the first Bangladeshi-American, the first Muslim-American woman, and only the second Muslim-American person to serve as a federal judge.
• A nominee who would be the first African-American woman—and the first woman of color—ever to serve on the Third Circuit.
• A nominee who would be the first Latina ever to serve on the Eastern District of California and the second Hispanic judge actively serving on that court.
• A nominee who immigrated from Taiwan as a child and would be the second Asian-American person to serve on the United States District Court for the District of Colorado—the first being President Biden’s nominee, Judge Regina Rodriguez, who was confirmed in June 2021.

Press coverage was to a similar effect. Schumer and Biden were also trying to shore up their left flank by touting the progressivism of Choudhury and others nominated along with her. Maybe they should have investigated instead whether she thinks it is standard practice for advocates to lie for the cause.

There is little question of Choudhury’s ideological loyalties: She has worked her entire career for the ACLU in New York and now Illinois (where she serves as legal director), much of that for the ACLU’s “Racial Justice Program” from 2008 to 2009 and 2013–18. There is no bar on putting ideological activists on the bench, but the Senate ought to have some standards to ensure that they can be fair jurists — especially district judges. Federal trial judges make decisions alone and have all manner of unreviewable powers to make life miserable for criminal defendants, crime victims, civil litigants, witnesses, jurors, and lawyers. They can lean on cases to settle, be dismissed, or end in guilty pleas. They can, on their own initiative, issue nationwide injunctions. Judges in the Eastern District, handling one of the busiest criminal dockets in the country (covering all of Brooklyn, Queens, and Long Island, and including the immigration and drug-trafficking dockets arising out of John F. Kennedy International Airport), have a particular need to be judicious in handling criminal cases.

Just about the worst thing of all is a judge who thinks it is acceptable to be dishonest. After all, judges hear from advocates all day long. A big part of their job is demanding that advocates tell them the truth, so that their rulings reflect an honest process to get the facts and the law right. A judge who won’t do that will never give anyone a fair day in court.

As questioning by Senator John Kennedy (R-La.) of Choudhury during Wednesday’s hearing before the Senate Judiciary Committee revealed, Choudhury lacks the honesty to serve as a federal judge. Here is the full exchange, starting at 2:42

Kennedy: In 2015, you were on a panel at Princeton University. You said that the killing of unarmed black men by police happens every day in America. Did you say that?

Choudhury: Senator I don’t recall the statement but it is something I may have said in that context.

Kennedy: You think it happens every single day?

Choudhury: Senator, I believe in that — in that statement, I was making a comment in my role as an advocate and I was engaging in rhetorical advocacy which —

Kennedy: Do you believe that police officers kill unarmed black men every day? In America?

Choudhury: Senator, I believe the killing of unarmed citizens by law enforcement is tragic and I believe in that —

Kennedy: I think it’s tragic, too, but do you believe that — this was a really simple question, counselor — Do you believe that cops kill unarmed black man in America every single day? You said that at Princeton.

Choudhury: Senator, I said it in my role as an advocate —

Kennedy: You didn’t mean it?

Choudhury: Senator, I said it in my role as an advocate to make a rhetorical point —

Kennedy: So, so when you say something that’s incorrect, it’s okay to excuse it by saying, “Oh, I was being an advocate?” What do you believe? Do you personally believe that cops kill unarmed black men every single day in America?

Choudhury: Senator, I believe law enforcement have an important and challenging job in this country —

Kennedy: That’s not what you should though, counsel.

Choudhury: Senator, I say before you here today that I do believe law enforcement has a difficult and challenging job and I also understand the difference between —

Kennedy: I just think that’s an extraordinary statement to make with no data to back up. No — none whatsoever. There’s no basis for you saying that. And you knew it then and you know it now. How could someone possibly believe that you’re going to be unbiased on the federal bench.

Choudhury: Senator, I believe my record shows that I have worked collaboratively with law enforcement in Boston, Chicago, Mississippi and Milwaukee to solve complex problems to promote constitutional, effective, and safe policing.

Three times, she repeated the “advocate” defense. Not once did she admit that the claim was false. Not once did she argue that she had any basis for the claim. Not once did she apologize or acknowledge that there is anything wrong at all in advocates for a cause massively exaggerating the facts. Finally, she just retreated to boilerplate generalities that avoided the question.

Choudhury’s statement at Princeton was wrong, as anyone who has followed the data knows. According to the Washington Post database, six unarmed black Americans were shot and killed by police in 2021. A detailed breakdown by Robert VerBruggen at the Manhattan Institute contrasts the widespread disinformation on this issue — precisely the disinformation spread by Choudhury — with the reality:

In a survey conducted by Manhattan Institute colleague Eric Kaufmann, for example, eight in 10 African-Americans and about half of white Biden voters said that they thought that young black men were more likely to be shot to death by police than to die in a car accident—one of the largest mortality risks to the young and healthy. Another survey, by Skeptic magazine, showed that more than a third of liberal and very liberal respondents thought that the number of unarmed blacks killed by police each year was “about 1,000” or more…

On-duty police fatally shoot about 1,000 people every year. This number and its racial breakdown have remained remarkably steady since 2015…there were 403 confirmed fatal police shootings of unarmed civilians in the six years from 2015 through 2020, for an average of about 67 per year…of unarmed civilians fatally shot by police, the black share—34% of cases where the race of the deceased is known, with a total of 133 cases, or about 22 unarmed blacks killed per year.

In other words, Choudhury’s claim made such shootings sound 16 times more common than they are. Statements of this nature have led to the public believing the exaggeration instead of the truth. That is, apparently, fine with her. It should not be fine with the United States Senate in handing out life tenure.