New York Federal Court Nominee Rejected by Senate Committee (1)

The Senate Judiciary Committee failed to advance President Joe Biden’s nominee to the Manhattan federal trial court in a rare setback for his judicial selections.

Sarah Netburn’s nomination to the US District Court for the Southern District of New York, where she currently sits as a magistrate, was rejected 10-11 on Thursday after Republicans amplified their concerns about her handling of a case involving an incarcerated transgender woman.

All Republicans voted no, while Democrats save Jon Ossoff (D-Ga.) supported her. It was the first time a nomination in the Biden era has failed in the Judiciary Committee due to a Democratic vote in opposition. Democrats hold a one-seat majority on the panel.

Republicans admonished Netburn at her May 22 confirmation hearing for her decision to grant the inmate’s request to move to a women’s prison from a men’s facility. The person was serving a sentence for distributing child pornography, after they’d previously been convicted of sexual abuse of two minors, lawmakers said.

Conservatives on the panel argued that Netburn had put the women’s prison’s population at risk given their prior criminal history.

Netburn said during the hearing that she granted the transfer because of their “serious medical needs,” and that they had “engaged in no physical violence and no acts of sexual violence whatsoever” following their initial prison sentence.

On Thursday, the panel’s top Republican, Sen. Lindsey Graham of South Carolina, requested that Chair Dick Durbin (D-Ill.) postpone the vote on Netburn so that GOP members could further investigate potential evidence that the petitioner had exposed their genitalia to women in the prison. Graham was concerned that the Bureau of Prisons had denied his office information based on the “privacy rights of the prisoner.”

“It’s irresponsible, in my view, not to get this information before we vote,” Graham said.

Durbin denied Graham’s request and defended Netburn, stating that the presiding district court judge for the case affirmed Netburn’s decision.

“Judge Netburn did the right thing in applying the facts and the law before her to the best of her ability, and the district judge agreed with her analysis,” Durbin said.

He also alleged a double-standard in Republican treatment of Netburn, arguing that what happened after her approval of the request “is hard to predict in any case.”

Durbin referenced Joshua Kindred’s resignation this week from the District of Alaska, after a scathing report alleged that he’d created a hostile work environment and engaged in sexual misconduct with a former clerk. Kindred was approved by the committee, 12-10, in 2020, prior to confirmation.

“To hold members of the committee responsible now for wrongdoing by this judge after we made our decision as a committee is unfair. The same applies to Judge Netburn,” Durbin said.

Ossoff, a junior member of the committee, didn’t immediately share his reasons for voting against the nomination.

He later told reporters that he had “concerns about the wisdom of the matters discussed” during the markup, referencing Netburn’s decision to approve the transfer of the imprisoned person.

Ossoff has been an advocate for prison welfare and oversight, and is a cosponsor on the Federal Prison Oversight Act that would establish an independent ombudsman to investigate the health, safety, welfare, and rights of incarcerated people and staff. The full chamber approved the bill on July 10.

Sen. Ted Cruz (R-Texas) vowed to remain vocal about GOP objections had the matter gone to the floor, and promised to call out Democrats vulnerable in the November elections prior to any vote on the sensitive issue.