Trio of Southern California litigators appear before Senate Judiciary Committee

Republican senators closely questioned nominees to the federal trial courts in Southern California on Wednesday about their views on "textualism" in light of the U.S. Supreme Court decision expanding LGBTQ workplace protections.

John W. Holcomb, a partner at Greenberg Gross, Todd W. Robinson, a federal prosecutor in San Diego, and R. Shireen Matthews, a partner at Jones Day, were introduced to the Senate Judiciary Committee by California Sen. Dianne Feinstein. Holcomb is nominated to a seat in Riverside. Feinstein told the Senators that Riverside "is badly in need of judges."

After the formalities, Republican senators posed some of the sharpest questions for the nominees despite the fact they were put up by President Trump. Their questions reflected disappointment among Republicans in another Trump appointee, U.S. Supreme Court Justice Neil Gorsuch, who penned Monday's ruling in Bostock v. Clayton County, 2020DJDAR5681. Bostock extended civil rights protections to gay, lesbian and transgender workers.

Sen. John Kennedy, R-Louisiana, questioned whether Holcomb, who said he is a textualist, would interpret the meaning of words in a statute as drafters understood them at the time the law was passed.

"What if words changed overtime and used the word 'sex' in one way in 1964 and use it another way in 2020? Which interpretation controls?" Kennedy asked

Holcomb tried to give an answer that closely hewed to Monday's opinion, which wasn't good enough for Kennedy.

"I want to know what you think," Kennedy said.

Holcomb responded that in the abstract textualism asks for what was understood at the time the statute was passed.

Sen. Josh Hawley, R-Missouri, asked Matthews to share her opinion on the concept of "ordinary public meaning."

"If I understand a term's meaning from plain text, I'd stop there. If it's not immediately clear, you look at the broader context of a statute, and look at other words around the word in question," Matthews replied.

Hawley, echoing Kennedy, pointed out that a word could have a different meaning and understanding in 2020 than it was interpreted in 1980 or 1964. The senator questioned how statute drafters thought a text would operate and what the ordinary public meaning of a word would be.

Matthews said the approach would be to start with the statute's text, as expected by the legislative body who drafted the words in the statute.

Thrown the same question, Holcomb disagreed, saying a court should rarely look at legislative history because it is too easy to manipulate.

"It might be relevant to understand how words were generally used at that time, but I think it should be very carefully and rarely used to interpret the statute itself," Holcomb said.

Holcomb spent more than 25 years in private practice focusing on intellectual property, and served as commissioned officer in the U.S. Navy.

Matthews is a former federal prosecutor. Matthews and Robinson are both nominated to seats in San Diego.

The Central District declared a judicial emergency in 2014; the extreme judge shortage was exacerbated by 10 vacancies, eight of whom were nominated by the Trump administration but are still awaiting congressional action.

Nominees Mark C. Scarsi, Fernando L. Aenlle-Rocha and Stanley Blumenfeld are awaiting a full Senate vote. Nominees Jeremy B. Rosen, Rick L. Richmond, Steve Kim, Sandy N. Leal, have been referred to the Judiciary Committee for a nomination hearing.

The Southern District has five vacancies. Adam L. Braverman is nominated to replace Roger T. Benitez who took senior status in December 2017. Knut S. Johnson was tapped to replace John A. Houston, and Michelle M. Pettit is nominated to replace Michael M. Anello. All three nominees have been referred to the Judiciary Committee for a nomination hearing.