Senate Judiciary Committee takes up Beth Robinson’s nomination to federal appellate court

Vermont Supreme Court Justice Beth Robinson listens in Montpelier on Feb. 19, 2019. Photo by Glenn Russell/VTDigger

Vermont Supreme Court Justice Beth Robinson faced tough questions and received ample praise Tuesday as the U.S. Senate Judiciary Committee took up her nomination to a top federal appellate court. 

Robinson, 56, was nominated last month by President Joe Biden to a seat on the influential U.S. Court of Appeals for the Second Circuit. If confirmed, she would become the first openly LGBTQ+ woman to serve on a federal appellate court. 

The Judiciary Committee is not expected to vote on Robinson’s nomination for several weeks. She would then face a confirmation vote on the Senate floor. 

Robinson’s home state senators, Patrick Leahy, D-Vt., and Bernie Sanders, I-Vt., spoke in glowing terms about her at the start of Tuesday’s hearing — citing in particular her advocacy for LGBTQ+ rights and same-sex marriage. 

“She’s been hailed as a tireless champion for equal rights and equal justice in the mode of the late Justice Ruth Bader Ginsburg,” Leahy said. “It’s no exaggeration to say that Beth helped Vermont and America to fully realize the meaning of equality under the law.”

Sanders called Robinson “one of our nation’s most important pioneers in advancing LGBTQ rights.”

Robinson has a history of landmark rulings that have advanced LGBTQ+ rights, including serving as co-counsel in the Baker v. State of Vermont lawsuit, which led to the enactment of the country’s first civil union law in 2000. She later led the Vermont Freedom to Marry Task Force, which successfully lobbied for the legalization of same-sex marriage in 2009. 

Leahy also emphasized the bipartisan support Robinson has received since her nomination, citing a letter of support from Vermont’s Republican governor, Phil Scott, as well as a letter from all sitting justices on the Vermont Supreme Court and another from several retired justices. 

Even as Robinson appeared at the hearing in Washington, D.C., Scott spoke highly of her during an unrelated press conference in Montpelier. The governor said he was “fully supportive of this new endeavor,” adding, “I think she’s the right person for this position.”

Meanwhile, lines of questioning from U.S. Sen. Ted Cruz during the judiciary committee hearing were less congenial. The Texas Republican pressed Robinson on her time as an LGBTQ+ advocate prior to her career as a judge and repeatedly probed her work as a litigator in the 1990s on a case that dealt with the intersection of religious freedom and business.

Robinson represented a Catholic woman who hoped to print abortion-rights pamphlets but was denied service by a printing press’s devoutly Catholic owners, who suggested the woman’s Catholic faith and abortion-rights stance were at odds.

Cruz said he was “concerned about [Robinson’s] record as both an advocate and as a justice,” saying it “demonstrates a marked hostility towards religious liberty.”

Robinson responded that her work on that case was about protecting the religious freedom of the plaintiff.

“If the facts showed that [the printing press] declined to print the placard because of their opposition to abortion — rather than their belief that her strain of Catholic faith was wrong — then she wouldn’t have a claim,” Robinson said.  

Cruz interrupted Robinson multiple times to express concern that her political beliefs around LGBTQ+ marriage rights could interfere with her ability to make impartial rulings.

“I find it quite astonishing,” he said, “that as an advocate you’re suggesting that the law has purview to force pastors and priests and rabbis to change what they teach as a matter of faith if it does not fit a political position that you happen to support.”

“That is not my position,” Robinson responded. “The debate about whether a particular religious community should or shouldn’t recognize marriages betweeen same-sex couples was for the members of that religious community to decide. The question of whether the law should recognize marriages between same-sex couples was the only issue of concern.”

She also addressed her career transition from LGBTQ+ advocate to judge in her opening remarks, noting that her focus as an advocate was on her individual clients. As a judge, she said, “my duty and commitment is to the law without regard to the interests of any particular clients or even my own personal predilections.”

During the hearing, senators also questioned labor lawyer Jennifer Sung of Oregon, whom Biden nominated to the U.S. Court of Appeals for the Ninth Circuit. Tensions flared at one point during questioning by U.S. Sen. John Kennedy, R-La. — drawing a rebuke from Leahy. 

Kennedy and other Republican senators criticized a letter Sung signed several years ago addressed to her alma mater, Yale Law School, expressing distress at the pending confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court. Kavanaugh, who was nominated by President Donald Trump, faced allegations of sexually assaulting a classmate when they were in high school.

Kennedy told Sung to “get out more” before interrupting her to say “you’re the only person in the Milky Way who believes you’re impartial.”

He then slapped his microphone away and announced, “I’m done, Mr. Chairman,” prompting Leahy to step in.

“This idea that especially if we have a woman nominee you can interrupt her anytime you want and state your own things … I would hope we can get back and show some respect to those who are answering questions under oath,” Leahy said.

The remainder of the hearing proceeded smoothly, with Robinson answering a few more questions about her opinions on past cases, including a nuanced one in which she was tasked with determining if a box cutter qualified as a deadly weapon. 

Senators are permitted to send written questions to nominees in the interim period before the Senate vote.

Leahy “will be doing all he can to expedite the remaining steps in the confirmation process,” said David Carle, Leahy’s spokesperson.

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