Appeals court nominee sparks debate over past voting rights advocacy

Senate Judiciary Republicans express doubts she could set aside past positions

Myrna Pérez testifies Wednesday before the Senate Judiciary Committee during her confirmation hearing to be U.S. circuit judge for the Second Circuit. (Caroline Brehman/CQ Roll Call)
Myrna Pérez testifies Wednesday before the Senate Judiciary Committee during her confirmation hearing to be U.S. circuit judge for the Second Circuit. (Caroline Brehman/CQ Roll Call)
Posted July 14, 2021 at 2:32pm

Myrna Pérez had to deal with a wild card ahead of her Senate confirmation hearing Wednesday to be a federal appeals court judge, when an article she wrote in May as a voting rights advocate was published with a headline that a top Republican called “an insult to half of this committee.”

Pérez told the committee she didn’t write the Sojourners headline, “The GOP Campaign to Make Elections Less Free.” She didn’t approve it before the article was posted Tuesday. And she didn’t mention political parties in the article.

But the confluence of that and her other past stances in voting rights debates, at a time when courts are being asked to review election laws that restrict access to the ballot, put on sharp display the deep partisan divides over voting rights legislation and how the past work of federal judges can affect their decisions.

Pérez spent much of Wednesday’s hearing telling the Senate Judiciary Committee that she would set aside her past advocacy if confirmed to the U.S. Court of Appeals for the 2nd Circuit, based in New York.

“I am 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 2nd Circuit,” she said.

Numerous Republicans on the panel expressed doubts. That included Texas’ Ted Cruz, who filed a brief along with 10 other senators to back Arizona voting laws in a recent challenge at the Supreme Court.

This month, the Supreme Court sided with Arizona, in a sharply divided ruling along familiar ideological lines, in a way that will make it harder for advocates to use the Voting Rights Act to prove that state election laws should be struck down as discriminatory.

Cruz pressed Pérez on her comments that his brief was outrageous and harmful, and whether the Supreme Court’s decision was the same. Perez declined to answer directly.

“As I look at your record, year after year after year of being an extreme partisan advocate, I’m left with the very likely conclusion that if you were confirmed to the bench, you would likewise be a radical activist on the bench,” Cruz said.

New article

Senate Judiciary Chairman Richard J. Durbin said some Republicans would take exception to Pérez’s new article, which states that “the sheer number” and “brazenness” of anti-voter bills proposed this year in 48 states as a “backlash to historic voter turnout” is “like few legislative attempts in memory.”

“I would gladly give your article as a speech from me personally on the floor of the Senate any day of the week,” the Illinois Democrat said. “I agree [with] what you said to the letter, and I would also say that it’s factually correct in every aspect I’m aware of.”

Iowa Sen. Charles E. Grassley, the panel’s top Republican, said that while authors don’t usually choose their headlines, “I have to imagine Ms. Pérez could have gotten Sojourners, which isn’t The New Yorker or The Washington Post, to accommodate a title change that wouldn’t be an insult to half this committee.”

Pérez, under later questioning from Arkansas Republican Tom Cotton, defended the Sojourners article as pro-voter, not pro-any political party.

“The entire piece does not mention any political party, and that is because I am an advocate for the right to vote, and I would criticize any politician who would impede that right, irrespective of their political party,” she said.

Democrats say the new state measures will restrict voting rights, while Republicans say the efforts will ensure voting integrity and accuracy. In the meantime, Congress is at a partisan deadlock on voting rights legislation.

Senate Republicans last month blocked debate on Democrats’ signature overhaul of elections, campaign finance and ethics laws, calling it a power grab that gave too much control over elections to the federal government. Majority Leader Charles E. Schumer has said he reserves the right to bring up the legislation again.

Professional background

Schumer introduced Pérez to the committee Wednesday as the daughter of Mexican immigrants whom he had recommended that President Joe Biden nominate and said it was past time for the federal bench to reflect a wider array professional experience.

Pérez has been a voting rights expert at the nonpartisan Brennan Center for Justice at New York University Law School.

“Especially now, when our democracy is in many ways in peril, it’s crucial that we elevate someone like Ms. Pérez to the bench,” Schumer said. “Someone we can trust to faithfully and equally apply the law to preserve our great democracy.”

Louisiana Republican John Kennedy expressed doubts Wednesday that Pérez would be able to do that.

“What you want to do on the federal bench is advance a social agenda, and rewrite the Constitution every other Thursday, to advance a social agenda that you can’t get by the voters through their elected representatives,” he told Pérez.

And Tennessee Republican Marsha Blackburn went further.

“I get this funny feeling that you’re trying to hedge us. That you’ve rehearsed your answers. That you’re spouting out what you think will not get you into trouble. So that you can go through the confirmation process and then do the happy dance and get on the court. And then go back to your activist ways,” she said. “That is what’s coming across, ma’am. That is what I’m perceiving.”

Republicans are powerless to stop the confirmation of Pérez without help from at least one Democrat.