According to the New York Times, Sen. Sam Brownback has decided to stop blocking the nomination of Janet Neff, which he had been stalling simply because she attended a commitment ceremony for a lesbian couple back in 2002.
Last week, Brownback offered to lift his hold on the condition that Neff agree to recuse herself from any cases involving the issue of same-sex unions. Brownback has now apparently backed off after coming to the realization that his demand “was so unusual as to be possibly unprecedented”:
In an interview last week, Mr. Brownback said that he still believed Judge Neff’s behavior raised serious questions about her impartiality and that he was likely to vote against her. But he said he did not realize his proposal — asking a nominee to agree in advance to remove herself from deciding a whole category of cases — was so unusual as to be possibly unprecedented. Legal scholars said it raised constitutional questions of separation of powers for a senator to demand that a judge commit to behavior on the bench in exchange for a vote.
Charles Fried, a Harvard Law School professor and leading conservative scholar, said Mr. Brownback’s actions were improper. “First of all, people go to parties for all sorts of reasons,” Professor Fried said, and how one would rule on a case should not be inferred from that private activity.
Further, he said, “It would be inappropriate for the judge to recuse herself from any such case because it is a judge’s duty to sit on cases” unless there is a clear conflict of interest. There would be a genuine conflict of interest, he said, if the judge had a financial interest in a case’s result or had been associated with one of the parties in the case.
“For her to agree to any such restriction in this case would be wrong,” said Professor Fried, who has been both a judge and the solicitor general of the United States.
Though Brownback will no longer be stalling Neff’s nomination, it doesn’t look like he is about to let it move forward completely uncontested:
Mr. Brownback said that when Judge Neff was renominated in January, he would insist only that the nomination not be approved in a voice vote, but one in which each senator is obliged to record a personal vote.
Any guesses on how Brownback intends to vote on Neff’s confirmation?