A conservative Washington D.C. based attorney, Howard Nielson’s ties to Utah, where he grew up and where his father served as a state legislator and congressman, have secured him a nomination for the federal bench.  However, Nielson will find his confirmation complicated by his participation in many hot-button cases, including his role in defending California Proposition 8.

Background

Howard Curtis Nielson Jr. was born in 1968 in Provo, UT.  Nielson’s father (also named Howard C. Nielson) was a professor at Brigham Young University who went on to serve in the U.S. House of Representatives as a Republican between 1983 and 1990.[1]  Nielson Jr. attended Brigham Young University, graduating summa cum laude in 1992.  He went on to spend two years at Kobe University in Japan as a Mombusho Scholar.[2]

In 1994, Nielson joined the University of Chicago Law School, where he served as articles editor at the University of Chicago Law Review.  Nielson graduated Order of the Coif in 1997, and clerked for the conservative luminary Judge J. Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit.[3]  After completing his clerkship with Luttig, Nielson was hired by Supreme Court Justice Anthony Kennedy to clerk for him, joining other notable clerks that year including civil rights litigator Jeffrey Fisher, law professor Noah Feldman, Seventh Circuit Judge Amy Coney Barrett, and University of Georgia Law School Dean Bo Rutledge.

After his clerkship, Nielson joined the Washington D.C. Office of Jones Day as an Associate.[4]  After the election of President Bush, Nielson moved to the Department of Justice as Special Assistant to Deputy Attorney General Larry Thompson.[5]  He later became Counsel to Attorney General John Ashcroft and in 2003, became Deputy Assistant Attorney General in the Office of Legal Counsel, serving under then-head Jack Goldsmith.[6]

In 2005, Nielson left the Department of Justice to join the conservative law firm Cooper & Kirk as Of Counsel.  Nielson was made a Partner in 2010 and continues to serve in that capacity.  In addition to his work at Cooper & Kirk, Nielson also served as a Legal Consultant to The Boeing Company[7] between 2008 and 2014.  Nielson also taught at the J. Reuben Clark Law School at Brigham Young University between 2007 and 2014.

History of the Seat

Nielson has been nominated for a vacancy on the U.S. District Court for the District of Utah.  This seat was opened by Judge Ted Stewart’s move to senior status on September 1, 2014.  On December 16, 2015, Obama nominated former Centreville mayor Ronald G. Russell to fill the vacancy.[8]  Russell, a Republican, had the support of Utah Senators Orrin Hatch and Mike Lee.[9]

Russell received a hearing before the Senate Judiciary Committee on April 20, 2016, and was approved without objection on May 19.  However, Russell’ nomination stalled on the floor due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell, and Democratic objections to expediting Russell’s nomination without confirming longer-pending Democrats.  Without floor action, Russell’s nomination was returned unconfirmed on January 3, 2017.

Shortly after the election of President Donald Trump, Lee reached out to Nielson to gauge his interest in a judicial appointment.[10]  In April 2017, Nielson interviewed with Hatch and was recommended by him as part of a slate of candidates to the White House.[11]

After interviews with the White House Counsel’s Office and the Department of Justice, Nielson was officially nominated on September 28, 2017.[12]

Legal Experience

Nielson began his legal career with clerkships at the U.S. Court of Appeals for the Fourth Circuit and the U.S. Supreme Court.  After the clerkships, Nielson spent two years in the Issues and Appeals Practice Group at Jones Day.  At Jones Day, Nielson primarily represented corporations in commercial litigation matters.[13]  However, he also represented the Michigan government in dismissing a suit charging the failure to provide adequate screening, diagnosis, and treatment services for Michigan children under Medicaid.[14]

Office of Legal Counsel

From 2003 to 2005, Nielson worked at the Office of Legal Counsel (OLC), which advises the Attorney General and the U.S. Government as to the legality of its actions and initiatives.  Nielson’s tenure at OLC coincided with a tumultuous time at the agency including the initial withdrawal of the Bybee memo and torture memos, the resignation of OLC head Jack Goldsmith, and the reinstatement of the Bybee memo by acting head Daniel Levin.[15]

Cooper and Kirk

In 2005, Nielson joined the Washington D.C. Office of Cooper & Kirk, a firm founded by Republican luminary Charles J. Cooper.  In his twelve years at the firm, Nielson has participated in many cases representing conservative causes.

In perhaps his most notable case, Nielson joined Cooper in defending Proposition 8 (“Prop 8”), the California voter initiative that restricted marriage to opposite-sex couples.  As defense counsel in the case, Nielson developed the arguments in defense of the Proposition, citing a state interest in the longstanding definition of marriage, and arguing that opposite-sex couples provide an optimal child-rearing environment.[16]  Nielson notably motioned (unsuccessfully) for the recusal of Judge Vaughn Walker from the case, noting that Walker was a “practicing homosexual” who could theoretically benefit from the expansion of same-sex marriage.[17]  During the subsequent trial, Nielson cross-examined Columbia professor Ilan Meyer, challenging his argument that Prop 8 causes stress to LGBT minorities.[18]  Nielson also challenged the conclusions of UC Davis Professor Gregory Herek, who argued that same-sex attraction is immutable.[19]  Instead, Nielson “attempted to show that gay [sic] and lesbians opt for their sexual preference at different points in their lives.”[20]  Nielson also argued, by citing a 1935 paper by Sigmund Freud, that homosexuals could change their sexual orientation through therapy.[21]

In addition to the Prop 8 case, Nielson has been involved in many other hot-button cases.  In King v. Burwell, the challenge to subsidies on state-run exchanges under the Affordable Care Act, Nielson represented a team of conservative lawmakers including Sen. Ted Cruz as amici.[22]  Nielson was also involved, as amicus, in challenging enforcement actions taken by the Consumer Financial Protection Bureau,[23] and served as part of the legal team on a successful challenge to D.C.’s restrictions on obtaining handgun permits.[24]  Nielson also represented Harvey Lembo, a resident in Maine affordable housing, who sought to avoid eviction for keeping a firearm at his residence for self-defense.[25]  Finally, Nielson represented Safe Streets Alliance in their challenge to Amendment 64, a Colorado ballot initiative decriminalizing marijuana.[26]

Writings

Two of Nielson’s writings may be brought up during his confirmation hearing.  While at Cooper & Kirk, Nielson joined a letter to the editor alongside eight other former OLC employees defending the actions of Steven Bradbury, who was then serving as the acting head of OLC.[27]  At the time, Bradbury was criticized for failing to maintain the professionalism of OLC and deferring to the legal pronouncements coming from the White House.  Nielson’s letter pushed back against that perception, arguing that Bradbury was “a careful lawyer of unimpeachable integrity and sound judgment.”[28]

As a law student, Nielson authored a law review article on the First Amendment protections offered to recklessly false statements made by public employees.[29]  The article argues that any recklessly false statements of fact made by public employees should not be protected under the First Amendment.[30]  In order to avoid a chilling effect on free speech, Nielson endorses proving the reckless falsity of a statement by “clear and convincing” evidence.[31]

Political Activity

Nielson has a long and active history of advocacy in the Utah Republican Party, going back to the 1980s when he campaigned alongside his father.[32]  As an adult, Nielson was a County and State Delegate for the Utah Republican Party, as well as a member of the Party’s Central Committee.[33]  Nielson also worked with Mitt Romney’s Presidential Campaigns in 2008 and 2012, advising them on justice related issues.[34]

Additionally, Nielson has supported Republicans financially, including contributions to the RNC, the NRCC, and the NRSC.[35]  Additionally, Nielson has donated to the campaigns of Trump, Hatch, Lee, and Sen. Ted Cruz (R-TX).[36]

Overall Assessment

In a recent release, LGBT rights organization Lambda Legal claimed that a third of Trump’s judicial nominees have anti-LGBT records.[37]  Regardless of whether you agree with that conclusion, Nielson’s nomination will likely be used to buttress it.  Specifically, Nielson has already drawn criticism for moving for Walker’s recusal in the Prop 8 case.[38]  He is likely to draw additional criticism for his reliance, as Prop 8 counsel, on studies from the 1930s to suggest that LGBT individuals can change their sexual orientation.  Overall, opponents will likely argue that Nielson’s record in the Prop 8 case reflects an anti-LGBT bias.

Opponents will likely also attack Nielson based on his participation in the King case, as well as his fight against gun regulations in the Wrenn and Lembo cases.  His push in the latter case to require an affordable housing unit to accommodate gun possession may also draw criticism from property rights activists.

In response, Nielson’s supporters will likely argue that his advocacy in the Prop 8 case was made on behalf of his client and pursuant to his ethical responsibilities to be a zealous representative.  They may also argue, as some did with the Barrett nomination, that criticizing Nielson’s opposition to same-sex marriage is an attack on his faith.

Overall, Nielson has a narrow margin in the Senate.  To avoid the fate of other failed nominees, he will need to demonstrate that he can separate his advocacy as an attorney from his behavior as a judge.  If he does so, his nomination should be able to unite Republicans and be confirmed.

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