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 ’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 (OLC) in the the Justice Department. President Trump George W. Bush Administration when the has demanded loyalty from the FBI director, notorious “” 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 . 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. No credible evidence supports by both the mothers and the fathers who a finding that an individual may, through brought them into this world.” conscious decision, therapeutic intervention or any other method, change his or her sexual Nielson was on a committee that orientation.” Perry 704 F. Supp. 2d at 964–66. politicized the Justice Department.

Nielson also disputed the effects of In 2002, Nielson served as Counselor discrimination on LGBTQ individuals, such as to the Attorney General. In that capacity, increased rates of depression and attempted he was part of a four-person “Screening suicide. In cross-examining an expert during the Committee” to approve or deselect Proposition 8 trial, Nielson highlighted studies candidate applications to be submitted to that “homosexuals d[o] not have abnormally hiring attorneys for the Honors Program elevated psychiatric symptomatology and Summer Law Intern Program. His compared with heterosexuals[,]” and argued participation on the committee is discussed that the research finding that “gay and lesbian in the inspector general’s 2008 report: “An population[s] do have higher rates of some Investigation of Allegations of Politicized [mental] disorders” was inconsistent and flawed. Hiring in the Department of Justice Honors That LGBTQ Americans suffer acutely due to Program and the Summer Law Intern discrimination, and that this suffering leads Program.” In the report, the inspector to increased mental distress, is settled. The general noted that “Nielson said he American Psychological Association explained believed that he may have participated in that “one result of the isolation and lack of [the screening process], but said he could support experienced by some lesbian, gay, not recall with certainty.” and bisexual youth is higher rates of emotional distress, suicide attempts, and risky sexual The inspector general specifically found behavior and substance abuse.” The National that “the Department’s Honors Program Alliance on Mental Illness found that “LGBTQ is the exclusive means by which the individuals are almost 3 times more likely than Department hires recent law school others to experience a mental health concern graduates. These are career positions, and, such as major depression or generalized therefore, Department policy and Federal anxiety disorder.” civil service law prohibit discrimination on the basis of political affiliations. However, Nielson continued his opposition to same- the evidence in our investigation showed sex marriage years later, when he authored that a Screening Committee established an amicus brief opposing marriage equality in by the Department in 2002 deselected Obergefell v. Hodges, 135 S. Ct. 2584 (2015), for interviews those candidates with arguing that marriage must be inherently a Democratic Party and liberal affiliations relationship between a man and a woman apparent on their applications at a because “in particular, through the institution significantly higher rate than applicants with of marriage, societies seek to increase the Republican Party, conservative, or neutral WWW.AFJ.ORG PAGE 5 affiliations. This pattern continued even when Supreme Court should overturn a statute we compared a subset of academically highly banning handgun purchases to people qualified candidates.” under the age of 21; and Friedman v. City of Highland Park, 136 S. Ct. 447 (2015), where The inspector general added, “the problem was Nielson represented the Illinois State Rifle not necessarily with the law. The problem was Association in fighting Chicago’s ordinance with the application of the law by the people banning semiautomatic rifles and large in the Department of Justice, which is very capacity magazines. In each one of these troubling that the Department of Justice would cases, the laws were upheld by the circuit not adhere to the law.” courts and the Supreme Court denied certiorari. In response to questions from Senators Charles Schumer and Sheldon Whitehouse regarding Contrary to the overwhelming weight of consequences for the Department of Justice precedent before the Supreme Court officials involved in the politicization scandals considered the question in District of at the department, including firing of U.S. Columbia v. Heller, 554 U.S. 570 (2008), Attorneys, improper politicization of hiring of Nielson authored a 2004 memorandum immigration judges, and politicization of the for OLC concluding that the Second honors program, the inspector general said: Amendment secured an individual “people did leave the Department so they right to bear arms. At the time he wrote cannot be disciplined by the Department, but his memorandum, the Supreme Court we have recommended that they never get a decision that was most directly on point job with the Department again, hopefully never was United States v. Miller, 307 U.S. 174 with the Federal Government again, that they (1939), where the Court had held that the consider this report if they ever do apply. They Second Amendment “must be interpreted have been exposed. Their conduct has been and applied” in view of its “obvious exposed in a transparent way for all to see.” He purpose to assure the continuation and emphasized, “[t]he ones who are no longer with render possible the effectiveness of such the Department should never get a job with the [militia] forces[.]” Id. at 178. Moreover, as Department or, in my view, any other Federal Justice Stevens noted in dissent in Heller, agency based upon the conduct listed[.]” since Miller, “hundreds of judges ha[d] relied on the view of the Amendment we Nielson led the effort against common-sense endorsed there; we ourselves affirmed it in gun reform. 1980.” Heller, 554 U.S. at 638 (Stevens, J., dissenting) (citing Lewis v. United States, Nielson has repeatedly represented the NRA in 445 U.S. 55, 65-66 n.8 (1980)). Indeed, at failed attempts to overturn firearm regulations. the time of Nielson’s memorandum, the These suits include NRA v. McCraw, 134 S. Ct. First, Third, Fourth, Sixth, Seventh, Eighth, 1365 (2014), where Nielson argued that bans Ninth, Tenth and Eleventh Circuits had all on 18-20 year olds publicly carrying firearms held that “the Amendment protects only are unconstitutional; NRA v. BATFE, 134 S. Ct. a right of the various state governments 1364 (2014), where Nielson argued that the to preserve and arm their militias.” Parker WWW.AFJ.ORG PAGE 6 v. District of Columbia, 478 F.3d 370, 379 (D.C. of persons in custody. He authored a Cir. 2007) (reviewing court decisions). Only the memorandum titled “Whether Persons Fifth Circuit had held to the contrary. Ignoring Captured and Detained in Afghanistan precedent, Nielson determined that the are ‘Protected Persons’ under the Fourth “original meaning of the [Constitution] provides Geneva Convention.” In that memorandum, extensive reasons” to hold that the individual Nielson “argues that the Fourth Geneva right existed. Convention, which protects civilians in the hands of a state of which they are not The Giffords Law Center to Prevent Gun nationals, applies only to individuals on Violence and Democracy Forward have sued U.S. territory[.]” the Trump Administration in order to compel compliance with the Freedom of Information Beth Van Schaack, former Deputy to the Act and release “records that would reveal Ambassador-at-Large for War Crimes the extent to which the Washington gun Issues at the State Department, noted that lobby is exercising influence and control this “interpretation . . . would significantly over the Trump Administration’s selection of truncate, if not virtually gut, the protections nominees for lifetime appointments to federal of that treaty.” Indeed, “the impact of judgeships.” Nielson, along with many other [Nielson’s] interpretation would be that Trump nominees, is specifically named in the the United States . . . would be bound by complaint. [the Fourth Geneva Convention] only with respect to actions taken on the territory Nielson’s involvement with issues of torture of the United States…. As a result, if the and executive power must be fully disclosed. United States were to detain Afghan or Iraqi civilians, those individuals would Nielson served as Deputy Assistant Attorney not benefit from [the Convention’s] General (AAG) in the Office of Legal Counsel dictates about humane treatment, non- from 2003 to 2005. During that time, Nielson’s discrimination, etc. unless they were boss, Stephen Bradbury, authored the “torture brought back to the United States.” memos,” which provided the legal justifications for 13 types of enhanced interrogation Van Schaack noted that Nielson’s techniques employed by the CIA, including “erroneous legal reasoning and waterboarding. As Senator John McCain said, conclusions” were so flawed that the “[p]ut simply, Mr. Bradbury’s memos were memo should be “add[ed] . . . to the Legal permission slips for torture.” Scrapheap.” She wrote, “[t]he 2005 Nielson Memorandum should be withdrawn It is imperative that Nielson disclose his full because its conclusions are inconsistent involvement in the “torture memos,” since with the text, the original intent of the treaty, the evidence suggests he may have been and the prevailing legal interpretation of intimately involved with their issuance. the [Geneva Conventions].”

At OLC, Nielson, like Bradbury, was involved in In addition to authoring an opinion issues regarding the United States’ treatment limiting the protections of the Geneva WWW.AFJ.ORG PAGE 7

Conventions, Nielson wrote a letter to the editor to confirm lawyers who have fallen short of of The Washington Post in 2007 defending this awesome responsibility.” Bradbury. Nielson and other former deputies wrote, “one or more of us have worked with him Nielson supported a ban on affirmative on virtually every issue that has gone through action in higher education. the office, and each of us is intimately familiar with how the office has treated the legal issues Nielson advocated for Michigan’s ballot that have come before it.” (emphasis added). proposal to end affirmative action policies at state universities in Schuette v. Coalition Even if Nielson did not work on the “torture to Defend Affirmative Action, 134 S.Ct. memos,” it is disturbing that he has defended 1623 (2014). Nielson represented a white them. When The Washington Post editorialized law-school applicant who intervened in against the “torture memos,” it noted that the the suit to defend the constitutionality of “Office of Legal Counsel issued two classified the ballot proposal before the Sixth Circuit memos in 2005 to justify techniques that the and the U.S. Supreme Court. The Sixth [CIA] had used when interrogating terrorism Circuit held that the proposal violated the suspects abroad – and to undercut a law Equal Protection Clause by burdening passed by Congress that outlawed ‘cruel, racial minorities’ ability to obtain protection inhuman, and degrading treatment.” In his letter through the political process. However, the to the editor, Nielson claimed the Post’s criticism Supreme Court overturned the holding in a was “deeply unfair” and “was remarkably ill- plurality opinion. informed.” Nielson has fought efforts to protect the As Sen. McCain said in opposing Bradbury’s environment. nomination to serve as General Counsel of the Department of Transportation, “[i]n voting Nielson represented Republicans in against Mr. Bradbury’s nomination, as I also Congress in opposing EPA regulations voted last week for similar reasons against in Util. Air Regulatory Group v. EPA, 134 Mr. Steven Engel’s nomination to head the S. Ct. 2427 (2014). Nielson’s amicus brief Department of Justice’s Office of Legal Counsel, argued the EPA lacked the authority to I am making it clear that I will not support any regulate greenhouse gases emitted by nominees who justified the use of torture by large, industrial polluters, despite the Americans. The laws of war were carefully Clean Air Act’s language bestowing created to be precise and technical in nature regulatory authority on the EPA over “any – but also to leave room for interpretation, air pollutant.” Had Nielson prevailed, even at the risk of abuse, by the Executive carbon pollution from large-scale industries Branch. This makes the duty of government like power plants and oil refineries, which lawyers all the more significant. They must account for 83 percent of such emissions, serve as guardians of our ideals and our would have gone unchecked. See id. at obligations under international law. They are 2438–39. The Supreme Court found in a safeguards and checks on the conscience of 7-2 decision that the EPA had the authority our government, and I cannot in good faith vote to regulate greenhouse gases emitted by WWW.AFJ.ORG PAGE 8 those large polluters. partisan “Screening Committee” and in his work on the status of detainees. Alliance Nielson opposed reproductive rights for for Justice opposes his confirmation. women.

Nielson co-authored an amicus brief in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), arguing that the Supreme Court should uphold restrictive abortion regulations in Texas. These regulations required that all outpatient abortion providers meet untenable standards that would have shut down many women’s health facilities, making it incredibly difficult for women in Texas to safely access abortion providers. The Supreme Court disagreed with Nielson, finding that the Texas regulations were unduly burdensome and violated the Constitution.

Nielson fought access to healthcare for all Americans.

Nielson was a prominent opponent of the Affordable Care Act, co-authoring amicus briefs representing conservative members of Congress in Halbig v. Sebelius, 27 F.Supp.3d 1 (DC Cir. 2014) and King v. Burwell, 135 S.Ct. 2480 (2015). Conclusion Nielson has put his allegiance to far right ideology ahead of any allegiance to the rule of law. His nomination by President Trump continues this administration’s disturbing trend of acquiescing to the gun lobby, as well as blatant hostility towards the rights of women, LGBTQ people and people of color. Nielson’s record is especially marred by his efforts at the Department of Justice, both in his role on the