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Voting Rights Tension Spills Into Second Circuit Pick Hearing

July 14, 2021, 8:24 PM

Partisan controversy over voting rights flared at a confirmation hearing for a New York-based federal appeals court nominee who was questioned by conservative lawmakers over her record working on election and voting law issues.

Myrna Pérez, director of voting rights at the Brennan Center for Justice nominated to the U.S. Court of Appeals for the Second Circuit, faced questions about her advocacy from Senate Judiciary Committee Republican members on Wednesday with pressure building on the Democratic-led Congress to approve new voting rights legislation.

In one exchange, Sen. Mike Lee (R-Utah) asked Pérez to explain a statement that he said she made in 2014 that voter ID laws were the biggest voting rights rollback since the Jim Crow era.

“If that is the statement that I recall, it was occurring alongside a great number of pieces of legislation across the country that, as an empirical matter, looked different than what we had seen since earlier times,” Pérez said.

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Lee said he was concerned that she hadn’t “distanced herself” from statements she made as an activist.

Later, Sen. Ted Cruz (R-Texas) called her a “radical activist.” Looking at Pérez’s career, Cruz said he was “left with the very likely conclusion that if you were confirmed to the bench, you would likewise be a radical activist on the bench.”

But Pérez drew a line between her work as an activist and how she would approach the role of a judge in response to a question from Sen. Alex Padilla (D-Calif.) about how her background would impact her role as a judge.

“By accepting this nomination, I’m pledging to no longer participate in policy disputes, and instead I will impartially and objectively review the law, apply it to the record before me, and be faithful to the precedent both of the Supreme Court and the Second Circuit.”

Questions about the work one did as an attorney have become commonplace in the increasingly partisan confirmation process and are especially frequent when a nominee has worked on hot-button issues, like voting rights.

In response to those questions, Pérez, in the typical style of judicial nominees, avoided saying whether she still agreed with her past statements or positions.

Sen. Richard Durbin (D-Ill.) defended her responses, saying to Pérez “the answers you have given are ones we’ve heard before, and I don’t think it should come as a surprise to my colleagues.”

Durbin’s comment came after Sen. Josh Hawley (R-Mo.) said Pérez should have given more direct responses to questions about her past comments about Supreme Court cases and said he wouldn’t support her nomination.

Democrats praised Pérez’s voting rights background.

“Especially now, when our democracy in many ways is in peril, it’s crucial that we elevate someone like Ms. Pérez to the bench, someone we can trust to faithfully and equally apply the law to preserve our great democracy,” Majority Leader Chuck Schumer (D-N.Y.), said while introducing her at the hearing.

Schumer, who recommended her to the White House, said it’s not just Pérez’s voting rights experience that qualifies her for a federal judgeship, it’s her “legal excellence.”

As a lawyer focused on election and voting law, Pérez would bring unique experience to the federal bench, something Biden is prioritizing. If confirmed, Pérez would also be the only Latina on the court and the first since Sonia Sotomayor, who was later elevated to the Supreme Court.

The Second Circuit—which encompasses New York, Connecticut and Vermont— is a chief venue for cases involving corporations and Wall Street.

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