AFJ NOMINEE SNAPSHOT U.S. District Court for the District of Utah

AFJ NOMINEE SNAPSHOT Howard Nielson U.S. District Court for the District of Utah WWW.AFJ.ORG CONTENTS Introduction, 1 Biography, 2 Legal and Other VIews, 2 Nielson fought against equality for LGBTQ Americans and argued that a judge should be recused from a case because he is gay, 2 Nielson was on a committee that politicized the Justice Department, 4 Nielson led the effort against common-sense gun reform, 5 Nielson’s involvement with issues of torture and executive power must be fully disclosed, 6 Nielson supported a ban on affirmative action in higher education, 7 Nielson has fought efforts to protect the environment, 7 Nielson opposed reproductive rights for women, 8 Nielson fought healthcare for all Americans, 8 Conclusion, 8 WWW.AFJ.ORG PAGE 1 is reflected in his nomination of Nielson. The NRA broke its own spending records INTRODUCTION in support of Donald Trump’s presidential campaign, and spent one million dollars on an advertising campaign to support On September 29, 2017, President Trump Supreme Court nominee Neil Gorsuch. nominated Howard C. Nielson to the United In return, Trump told the NRA, “You came States District Court for the District of Utah. through for me, I am going to come Nielson’s nomination continues Trump’s trend through for you.” In nominating Nielson, of offering lifetime appointments to ideological Trump has kept his word. Nielson has been attorneys and judges. one of the NRA’s go-to attorneys, fighting to eliminate restrictions on guns in public Alarmingly, Nielson shares with Trump a places and limits on assault weapons. propensity for attacking judges’ integrity based on personal characteristics. During the On yet another front, the use of torture, presidential campaign, Trump attacked federal Nielson appears inclined to reinforce the judge Gonzalo Curiel and said the judge should worst impulses of President Trump. Trump recuse himself from a case solely because of has questioned the Geneva Conventions his Mexican heritage. Howard Nielson, in taking and supported waterboarding, saying, a leading role in the effort to prohibit same-sex “The problem is we have the Geneva marriage in California, argued that a federal Conventions, all sorts of rules and judge should be disqualified from hearing the regulations, so the soldiers are afraid to case because he was gay. fight[.]” He has said he wants to “bring back a hell of a lot worse than waterboarding.” President Trump and Nielson also share Significantly, Nielson worked in the records of attacking the independence of Office of Legal Counsel (OLC) in the the Justice Department. President Trump George W. Bush Administration when the has demanded loyalty from the FBI director, notorious “torture memos” were issued. In politicized prosecutorial decisions, and tried to response to criticism of the memos in The purge non-political law enforcement personnel Washington Post, Nielson wrote a letter to whom he perceives as insufficiently supportive the editor defending the memos’ author, of his administration. Nielson fits right in: As Stephen Bradbury. In addition, he authored an official in the Justice Department under a memorandum that gutted protections George W. Bush, Nielson was part of the for persons in custody under the Geneva “Screening Committee” that impermissibly, as Conventions, a memorandum one expert the Department’s Inspector General concluded, said was based on such “erroneous legal “considered political or ideological affiliations” reasoning and conclusions” that it should in making non-political hiring decisions and be “add[ed] . to the Legal Scrapheap.” weeding progressive applicants out of civil service jobs. Finally, Nielson has fought efforts to ensure equality in education for people of President Trump’s desire to cater to the color; has advocated against regulating wishes of the National Rifle Association (NRA) WWW.AFJ.ORG PAGE 2 greenhouse gases; has frequently litigated Nielson represented the defendants in against the Affordable Care Act; and has Hollingsworth v. Perry, 133 S. Ct. 2652 defended severe burdens on women’s exercise (2013), defending Proposition 8, which of their reproductive rights. would have banned same-sex marriage in California. Alliance for Justice opposes his confirmation. After the district court, in Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), ruled that Proposition 8 Biography was unconstitutional, Nielson filed a motion to vacate the judgment. Nielson’s motion Nielson has been a partner at Cooper & argued that the judge, Chief Judge Vaughn Kirk, PLLC in Washington, D.C. since 2010, Walker, a Reagan appointee, “had a duty after being of counsel there since 2005. to disclose not only the facts concerning He attended Brigham Young University and his [same-sex] relationship, but also his attained his J.D. from University of Chicago marriage intentions.” Law School in 1997. After graduating, Nielson clerked for Judge J. Michael Luttig on the Nielson’s motion reflected the rhetoric of Fourth Circuit and for Justice Anthony Kennedy. certain right-wing groups. The American After clerking, Nielson joined Jones Day as Family Association said that it was an associate. In 2001, Nielson joined the “extremely problematic that Judge Walker Bush Administration’s Department of Justice is a practicing homosexual himself. He as Special Assistant to the Deputy Attorney should have recused himself from this General, before becoming Counsel to the case, because his judgment is clearly Attorney General, and finally, Deputy Assistant compromised by his own sexual proclivity.” Attorney General for the Office of Legal Conservative activist Tony Perkins Counsel from 2003 to 2005. Nielson also specifically said that Judge Walker’s worked as a legal consultant for Boeing from decision was compromised by the fact he 2008 to 2014. is “openly homosexual.” Nielson argued, in attempting to vacate the judgment, that only if Judge Walker had “unequivocally disavowed any interest Legal and in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the Other Views outcome[.]” Nielson fought equality for LGBTQ Americans Kamala Harris, then California Attorney and argued that a judge should be recused General, filed a brief opposing the motion. from a case because he is gay. She wrote, “[j]ust as every single one of the attempts to disqualify judges on WWW.AFJ.ORG PAGE 3 the basis of their race, gender, or religious members of the general public would be affiliation has been rejected by other courts, affected, is not a basis for either recusal this Court should similarly reject Defendant- or disqualification. … It is not reasonable Intervenors’ effort to disqualify Judge Walker to presume that a judge is incapable of based on his sexual orientation.” Now-NAACP making an impartial decision about the Legal Defense Fund President Sherrilyn Ifill constitutionality of a law, solely because, wrote that “the suggestion that Judge Walker’s as a citizen, the judge could be affected by sexual orientation is evidence of bias is the the proceedings.” kind of argument that was firmly discredited in a series of cases challenging the impartiality of During his defense of Proposition 8, black judges to decide civil rights cases….Black Nielson also suggested that same- judges pushed back firmly against attempts sex attraction is a choice, not an to question their impartiality and framed innate characteristic. As one journalist what has become the universally accepted summarized, “Nielson appear[ed] to be understanding among the bench and bar: that trying to undercut [an expert’s] assertion judicial bias cannot be assumed based on that homosexuality is an inherent racial, gender or other status of the judge.” She characteristic of gays and lesbians, not added, “[t]hose who seek to discredit Judge a social choice…. [by] making the point Walker’s decision based on the allegation that that there has been some debate about the judge was biased are barking up the wrong how sexual orientation is defined by the tree. They are also raising the ugly specter scientific world.” Nielson’s questioning of judicial bias based on status.” Journalist suggested that since some studies found Dahlia Lithwick pointed out that while the “legal “[t]here is currently no scientific or popular argument is degrading and futile doesn’t mean consensus on the exact constellation of nobody will make it. For as long as there have experiences that definitively qualify an been bigots in America, litigants have tried to individual as lesbian, gay, or bisexual rather argue that women are too womanly to decide than confused, curious, or maladjusted[,]” gender cases and that Jews are too Jewish sexual orientation might be a choice, rather to hear cases involving the first attacks on the than a definable characteristic. World Trade Center…these litigants also have tried to dress up their claims as something other Of course, the overwhelming consensus than pure bigotry. They never prevail.” is that sexual orientation “is an immutable (and probably an innate, in the sense of Nielson’s motion to disqualify the judge was in-born) characteristic rather than a choice.” denied. See Perry v. Schwarzenegger, 790 F. Baskin v. Bogan, 766 F.3d 648, 657–58 Supp. 2d 1119 (N.D. Cal. 2011). As George H.W. (7th Cir. 2014) (J. Posner) (summarizing Bush appointee Judge James Ware wrote, “[t]he scientific studies on homosexuality). sole fact that a federal judge shares the same circumstances or personal characteristics with In rejecting Nielson’s argument, the district other members of the general public, and that court pointed out that “[s]exual orientation the judge could be affected by the outcome is fundamental to a person’s identity of a proceeding in the same way that other and is a distinguishing characteristic that WWW.AFJ.ORG PAGE 4 defines gays and lesbians as a discrete group…. likelihood that children will be born and Individuals do not generally choose their sexual raised in stable and enduring family units orientation.

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