Following criticism by fellow conservatives and members of his own party, Senator Sam Brownback (R-KS) has lifted his hold on Michigan district court nominee Janet T. Neff. As you recall, Senator Brownback had blocked the nomination because Neff had attended a same-sex commitment ceremony in 2002. If the President renominates Neff in January, Senator Brownback has said he wants to have a second hearing on her nomination so he can re-question her, but he is “not opposed to her getting a vote.” The latest development in this continuing saga is an about-face for the Kansas senator. Right before the 109th Congress adjourned, Senator Brownback had said he would lift his hold on Neff—which effectively held up more than a dozen other nominees who were part of a bipartisan compromise package—but only if Neff promised to recuse herself from all cases involving same-sex unions.
This encroachment on judicial independence created uproar across the political spectrum. In a New York Times article, conservative Harvard Law Professor Charles Fried pointed out the absurdity of Senator Brownback's position: "[P]eople 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. (In fact, Neff has publicly stated that she attended the commitment ceremony because one of the women in the ceremony was a close friend to her and her own daughters.) Further, Professor Fried observed, “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. Senator Brownback now pleads naiveté as an excuse for his earlier stance, claiming, according to the New York Times, that "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."
It looks like Senator Brownback has finally ceased his political grandstanding—but not before giving us a pretty good look at how some Republicans see judicial nominations as just another way to score points with the party base.