President Donald Trump had a Republican judge confirmed by the Senate to the notoriously left-leaning Ninth Circuit Federal Court of Appeals on Tuesday—without missing a single Democrat vote.
Mark Bennett was confirmed by a 72-27 vote, yet it was Trump’s only Appeals Court nomination where every single nay came from a Republican.
Bennett has had a long and rather uncontroversial legal career, starting as an Assistant U.S. Attorney in Washington and Hawaii in the 1980s, continuing in private practice in the 1990s, and returning to private practice after a 2003-2010 tenure as Hawaii’s Attorney General under Republican Governor Linda Lingle.
After Trump nominated him to the Ninth Circuit, however, one of his decisions especially attracted the scrutiny of some GOP Senators.
In 2008, when the Supreme Court pondered the landmark D.C. v. Heller case, deciding whether the Second Amendment gives Americans the right to keep guns at home for self-defense, then-New York Attorney General Andrew Cuomo issued a legal brief that asked the court to “reaffirm” that the Second Amendment doesn’t apply to state laws. That would mean states could theoretically ban guns altogether, though most state constitutions, according to the National Rifle Association, include right-to-bear-arms clauses or at least self-defense clauses. The exceptions are New York, California, Minnesota, and Maryland.
Bennett signed on the brief and was questioned about it by Sen. Ted Cruz (R-Tex.) during his Nomination Hearing on April 11.
Bennett said Hawaii joined the brief “to take the position that the court need not reach the question” of whether the Second Amendment applies to state laws. He also pointed out that when the Supreme Court ruled in 2010 (McDonald v. Chicago) that the Second Amendment does apply to state laws, Hawaii didn’t chime in on the decision.
One explanation for Bennett’s decision could be that as he was the attorney general of a state with strict gun-control laws, he had an ethical responsibility to defend them, noted legal blog The Vetting Room. “As such, one cannot necessarily attribute the positions that Bennett took as Attorney General as his own legal views.”