In the face of opposition from a majority of Republicans, Texas Sen. John Cornyn partnered with Democrats yesterday to confirm a judicial nominee with a checkered past.
Mark Bennett was confirmed to the San Francisco-based Ninth Circuit Court of Appeals with 27 members of the 51-member Senate Republican Caucus voting against him. Opposition to Bennett’s confirmation was led by Texas Sen. Ted Cruz, who grilled him for liberal positions he took while serving as Hawaii’s Attorney General.
“[Bennett] was an aggressive advocate, as attorney general, for gay marriage. He was an aggressive advocate demonstrating hostility to the First Amendment and political speech,” said Cruz in a Senate Judiciary hearing. “Most significantly, he has been an aggressive advocate for undermining the Second Amendment.”
As Hawaii’s attorney general, Bennett signed on to amicus briefs opposing conservative outcomes in two critical cases, DC v. Heller and Citizens United v. FEC.
In Heller, Bennett opposed the individual right to keep and bear arms. Efforts to uphold gun rights were led in part by Cruz who was serving at the time as Texas’ Solicitor General. In contrast to Bennett, who argued in favor of Washington DC’s ban on handguns, Cruz worked with then-Texas Attorney General Greg Abbott to uphold the Constitution.
“Taking the position in the Heller case that the Second Amendment protects no individual right to bear arms whatsoever—In my judgement that is an extreme position,” said Cruz. “It is grossly inconsistent with the text and original understanding of the Second Amendment and, so, I can’t, in good conscience, vote to confirm him for a lifetime position as a court of appeals judge on the ninth circuit.”
Though only Cruz and Sen. Ben Sasse of Nebraska voted against Bennett in the Judiciary Committee, their efforts on the Senate floor were bolstered by pro-Second Amendment organizations including the National Association for Gun Rights and Gun Owners of America. (The establishment-friendly NRA was mum on Bennett’s nomination.)
Cruz was successful in getting a majority of Republicans in the US Senate to vote against Bennett’s confirmation, showcasing Cruz as perhaps better at rallying Republican votes than the official Republican whip, Sen. John Cornyn.
Then again, perhaps Cornyn was whipping the votes of Senate Democrats. All 49 of them joined Cornyn in voting to confirm Bennett while lavishing him with praise.
It is a disappointment that President Trump would even nominate Bennett. Especially as the US Senate prepares to vote on a replacement to retiring Supreme Court Justice Anthony Kennedy, Bennett’s confirmation in the face of majority opposition from Republicans should be a reminder that Americans must hold lawmakers accountable for the judges they place on the courts.
