Republicans on the Senate Judiciary Committee grilled an Oregon judge Wednesday, though their questions dealt little with the nominee’s legal career and instead focused on culture war issues.
Mustafa Kasubhai has served as a federal magistrate in Eugene since 2018 and is seeking a lifetime appointment as a U.S. District Court judge. Throughout the hearing, Republican Senators focused less on his judicial record and philosophy and more on comments he’s made outside of the courtroom about race, diversity and gender.
Last month, President Joe Biden nominated Kasubhai to take over for U.S. District Court Judge Ann Aiken, who is taking senior status, a form of semi-retirement in which judges often dramatically reduce their caseload. Kasubhai was the first Muslim American on the federal bench when he became a magistrate. Before that he spent roughly a decade as a judge on the Lane County Circuit Court and also practiced civil law in Eugene and Klamath Falls.
He told senators that “humility is the foundation” of the courts and of upholding the nation’s laws.
“So what I try to do when I sit on the bench is I extend to people graciousness and patience so that they have not just the opportunity to be heard, but to be deeply heard,” Kasubhai testified. “When I issue a ruling whether somebody prevails or doesn’t prevail, I want that ruling to be conveyed in a way that helps them to think of the court as a place in which decisions can be decided impartially without regard to who they are and that they were heard.”
Oregon Sens. Ron Wyden and Jeff Merkley, both Democrats, introduced Kasubhai at the hearing; Wyden telling Senate Judiciary Committee members that the judge’s “credentials are so long I would keep you to breakfast if I went through.”
Outside the courtroom, Kasubhai is a woodworker and even owns a portable sawmill that he uses to mill logs into artisan wood products, Wyden said.
“So, if you are ever looking for a way …to have some wonderful floors in your home, don’t call Ghostbusters, call our nominee because he can do it for you,” Wyden told his colleagues.
From there, the mood quickly turned confrontational. Republican senators raised questions about statements Kasubhai has made surrounding gender, race, equity and inclusion.
“A number of the questions, it seems to me, were just what I would call, sort of hot button culture war kinds of issues,” said Carl Tobias, a professor of law who studies the judiciary at the University of Richmond.
“The GOP senators really were asking sometimes trick questions, but also difficult questions to answer. And I thought he was very clear in responding and straightforward about that and that’s all a nominee can do in that situation.”
Many of the questions from Republicans lacked context, did not deal with the nominee’s written legal opinions or referenced decades-old writing from Kasubhai’s time in college and law school.
“A lot of it is 30 years old, so is that really relevant?” Tobias told OPB.
Sen. Mike Lee, R-Utah, asked the judge about a presentation he gave this year to the Oregon State Bar.
“You included the following in your remarks: ‘DEI — diversity, equity and inclusion — is the heart and soul of the court system. Can we say that? Yeah, I just did and I say it proudly.’” Lee said, quoting the nominee. “Judge, could you explain what that means?”
Kasubhai replied: “Access to justice is at the heart of the work that I do within the courtroom and ensuring that everybody is dignified and treated with dignity when they come into the courtroom and from me to preside over those cases.”
Lee questioned whether that was more important than the rule of law or the Constitution itself.
Kasubhai replied that in the context he made the remarks, he was saying everyone, regardless of their beliefs or background, is entitled to equal justice in the courts.
Other Republican lawmakers took the opportunity to question Kasubhai about his political ideology.
“I looked at some of your readings and writings, your decisions, you seem to have an affinity for Marxism,” Sen. Marsh Blackburn, R-Tennessee, said to Kasubhai.
She referred to a 1994 essay in which, in her characterization, Kasubhai criticized the concept of private property. It was written around the same time Kasubhai was attending law school at the University of Oregon.
“You argued that and I quote ‘property incites rebellion.’ This is one of the many positive statements that you have made about Marxist approaches and Marxist policies,” Blackburn said. “It disturbs me when I see this leaning to Marxism in your writings. So a yes or no question, are you a Marxist?
“No, Senator,” Kasubhai replied.
“OK, will you right now disavow the tenets of Marxism that you have praised in some of your writings?” Blackburn asked.
“Senator, I have not praised Marxist ideas, and I would disavow any other system than that would be supported by our US Constitution and our laws,” Kasubhai responded.
The hearing and its partisan critiques of the nominee were summed up by Sen. Ted Cruz, R-Texas: “Your fellow nominees owe you a debt of gratitude, because many Biden nominees have been extreme, but your record is so far out of the mainstream that you have attracted virtually all of the questions,” Cruz told Kasubhai.
Sen. Lindsey Graham, R-South Carolina, asked Kasubhai about a pamphlet he created as a resource for other judges to use, if they want, at the beginning of a courtroom proceeding.
“I think you created pronouns in the court guide,” Graham asked. “Tell me about that.”
Kasubhai said he created a “cheat sheet for the bench” so that “everybody who comes before the court can be acknowledged and identified in dignified ways and that related to the issue of the use of pronouns and honorifics such as mister, or miss or mix … So I invite people when they come to court and introduce themselves to offer their identity in the way of their honorifics.”
Sen. John Kennedy, R-Louisiana, stated that Kasubhai seemed to be “obsessed with race and sexuality.”
“I mean you even go so far as to say that when race and sexuality and diversity and inclusion are at issue, we need a separate standard of proof in the United States, federal judiciary,” Kennedy said. “How are litigants going to be able to trust you?”
“Senator, that’s not what I’ve said,” Kasubhai replied. “There is no different standard.”
Kennedy pushed back, and Kasubhai doubled down:
“The work that I’ve done on the bench in ruling over all the people’s cases that have occurred in front of me from all backgrounds of all faiths, you’ll find that I have upheld the rule of law and upheld the precedent of our Constitution and our Supreme Court and the Ninth Circuit,” Kasubhai said.
“I just don’t see how you can be a fair-minded judge,” Kennedy said.
Many Democrats on the committee took the opportunity to let Kasubhai provide more context for his past comments and writings.
Sen. Cory Booker, D-New Jersey, said there seemed to be some confusion among his colleagues about strong beliefs on the importance of diversity for the court’s own legitimacy and Kasubhai’s ability to be an objective judge when it comes to applying the law fairly.
“You don’t care what their pronouns are when you’re applying the law,” Booker asked Kasubhai.
“Absolutely not,” Kasubhai replied.
“You don’t care the color of their skin when you’re applying the law,” Booker asked.
“Most certainly not,” the judge replied.
“You are applying the law, even though you do believe like most of the people around this dais that having diverse teams is a good thing for America,” Booker asked. “And when it comes to doing your job, you have a rigorous process of which these things don’t enter.”
“You said it better than I could,” Kasubhai responded.
Next, Senators will give Kasubhai written questions, which he’ll respond to later this month. Little is likely to happen until the late Sen. Dianne Feinstein’s seat on the committee is filled, Tobias said. Then, the Judiciary Committee will vote on whether to send Kasubhai’s nomination to the full Senate for a confirmation vote, possibly before the end of the year.