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GOP Presses Ninth Circuit Pick on Transgender Bathroom Access

Oct. 20, 2021, 10:33 PM

A Joe Biden nominee for the nation’s largest federal appeals court faced pointed questions from Republicans about her position in briefs opposing restrictions on transgender bathroom access.

Senate Judiciary Committee GOP members drew the hot-button issue into the hearing on Wednesday by asking Holly Thomas, a nominee to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, whether she agreed with language in briefs she signed while working for New York State’s solicitor general.

Thomas, a judge on the Los Angeles County Superior Court, declined to answer directly, citing California’s code of judicial ethics and the fact that the issue could come before her in her current role or in the future if confirmed. She also drew a distinction between her role as an advocate and role as a judge.

“What my duty was to advocate zealously for my clients. I’ve set aside the advocacy role and I now occupy a judicial role,” Thomas said in response to Sen. Ted Cruz (R-Texas), who grilled her on the transgender issue.

The briefs in question were filed in federal district courts in North Carolina and Texas in 2016. They involved North Carolina’s controversial “bathroom bill” which restricted transgender access to restrooms, and a challenge to the Obama administration’s guidance on transgender student access to restrooms in schools.

“You’ve carved out an expertise for yourself using litigation to force institutions to allow biological males to use restroom facilities and locker facilities that are also used by young girls, that are used by women. And this has been a pattern,” Cruz said to Thomas at the hearing.

Sen. Alex Padilla (D-Calif.), who was standing in for Judiciary Chair Richard Durbin (D-Ill.), defended Thomas and characterized committee Republicans as unfair for trying to link the briefs from years ago to a recent incident in Virginia in which a student was allegedly assaulted in a women’s restroom.

Alliance for Justice questioned the motivation of Republicans at the hearing. “Instead of focusing on her qualifications or being able to attack her record as a judge, Republicans used the opportunity to play to their base,” said Daniel Goldberg, legal director of the progressive advocacy group.

Appellate and sometimes trial court nominees have faced sharp questions at hearings over positions they took on behalf of clients as the confirmation process has taken on more of a partisan edge. Thomas’ responses that it wasn’t ethical for her to share her opinion and that she understood her role as a judge was separate from her advocacy were in line with how other nominees have responded to those questions.

Thomas, who would be the second Black woman to serve on the Ninth Circuit, has also held positions with the NAACP’s Legal Defense and Education Fund and the Justice Department’s Civil Rights Division.

In her introductory statement, Thomas said that her grandmother was born a sharecropper in North Carolina and her father worked as a school custodian and then supplemented his income working nights as a chauffeur to help pay her tuition at Stanford University. Thomas also graduated from Yale Law School and clerked on the Ninth Circuit.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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