[Congressional Record (Bound Edition), Volume 163 (2017), Part 9]
[Senate]
[Page 12390]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF KEVIN NEWSOM

  Mrs. FEINSTEIN. Mr. President, today I want to speak briefly about 
the nomination of Kevin Newsom to the Eleventh Circuit Court of Appeals 
from Alabama.
  I intend to support Mr. Newsom's nomination. Mr. Newsom is currently 
in private practice in Birmingham. He previously served as the 
solicitor general of Alabama. He also clerked for Justice Souter on the 
U.S. Supreme Court and graduated from Harvard Law School and Samford 
University. The American Bar Association has unanimously rated him 
``well qualified.''
  My support for Mr. Newsom's nomination does not mean that this is a 
judicial nominee that I would have necessarily chosen. There are 
aspects of Mr. Newsom's record that concern me.
  For example, in private practice, Mr. Newsom published an article in 
which he was extremely critical of the doctrine known as substantive 
due process. This is the doctrine the Supreme Court invoked in 
protecting the right to use contraception, a women's right to choose, 
and the right to same-sex marriage.
  Additionally, as solicitor general of Alabama, Mr. Newsom filed an 
amicus brief in the Supreme Court in the case Rasul v. Bush, arguing 
that Federal courts did not have jurisdiction to hear habeas claims 
from foreign nationals who were captured overseas and detained at 
Guantanamo Bay. The Supreme Court ruled against Mr. Newsom's position 
in a 6-3 decision.
  Lastly, while Mr. Newsom was in private practice, he filed an amicus 
brief in the Supreme Court case Roper v. Simmons, where he urged the 
Court to reject a brightline rule prohibiting capital punishment for 
children under the age of 18. His work on this case followed several 
other cases where, as solicitor general of Alabama, he had argued 
against procedural rights for individuals on death row.
  As I consider this nominee, I have to balance these positions--which 
do concern me--with other aspects of Mr. Newsom's nomination. Here, we 
have a nominee unanimously rated ``well qualified'' by the American Bar 
Association. His home-State Senators have returned blue slips and 
support his nomination. Although some outside groups have expressed 
concerns, no outside group has officially opposed his confirmation.
  As a result, I voted to invoke cloture on Mr. Newsom's nomination 
today. My decision on every nominee will be based on that nominee's 
individual record.
  I also want to briefly remind my colleagues why we are even 
considering Mr. Newsom's nomination in the first place.
  In February 2016, President Obama nominated Alabama U.S. District 
Court Judge Abdul Kallon for this very same vacancy on the Eleventh 
Circuit.
  Today Mr. Newsom was voted on because Senators Shelby and Strange 
returned blue slips for his nomination.
  I would like the Senate to also know that we held a hearing just last 
week that included Judge Ralph Erickson to be a judge on the Eighth 
Circuit Court of Appeals because Senators Hoeven and Heitkamp returned 
their blue slips. This shows the importance of the blue slip helping 
move nominations through the process.
  Democratic Senators are conducting their due diligence on these 
nominees before returning their blue slips, and in the Erickson 
nomination, the return of the blue slip is bipartisan. Many of the 
current nominees have voluminous records, and we need to allow home-
State Senators to do their work.
  Thank you.

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