Bowsite.com

When Heller went to the Supreme Court, Mr. Bennett signed onto an amicus brief arguing that the 2nd Amendment does not apply to the States and that the 2nd Amendment does not "explicitly guarantee an individual right to own a gun for specified private purposes".

The 9th Circus has been the bane of gun owners in the Western U.S. and the chief tool of Second Amendment infringement out here. I was hopeful that Trump would make pro-2A appointments to this court, but apparently not. We are still f!@#ed.

How can anyone who considers themselves pro-freedom excuse this?

More like the president is playing chess while his opponents are playing Go.

You can't spin the appointment of an anti-Second Amendment judge as some sort of Grand Strategy against gun grabbers.

"fav poster", do me a favor. Stay off my threads. I have no desire to read what you post or to converse with you. Consider this a polite request.

In 2008, the U.S. Supreme Court struck down the District of Columbia’s ban on ownership of handguns, finding an individual right to bear arms in the Second Amendment of the U.S. Constitution.[21] When the case was being argued, state attorneys general of both parties weighed in both in favor of and against the D.C. ban.[22] While 31 attorneys general weighed in against the ban, five, including Bennett, signed onto a brief supporting it.[23] Speaking about the case, Bennett noted:

“We think that a decision that the Second Amendment prohibits strict gun-control laws is just wrong.”[24]

Notably, at the time of the suit, Hawaii had some of the strictest gun control laws in the country.[25]

My point was, Go typically has no ending unless one gives up. I see the gun grabbers as never giving up.

I'd hope some push back on this..... or some explanation/clarification.

WRT what he did while state attorney general is likely what he was ordered to do by his boss..... knowing who his bosses were I can guarantee what his instructions were. As essentially a state employee he must have been doing so on behalf of the state?

I know a thin straw to grasp..... but attorneys are hired to do things they don't like or argue points they don't want to do all the time. They are required to defend the indefensible all the time.

Hopefully he will have to answers to these questions in confirmation hearings.

Experienced Hawaii litigator Mark Bennett is an unusual nominee from the Trump Administration in one key aspect: his age. While the Trump Administration has generally chosen judges in their 40s and 50s for the appellate bench, Bennett is 65 years old. Not only is he the oldest of all of Trump’s appellate nominees by far, he is also older than 80% of Obama’s appellate picks. In fact, in the last thirty years, just two appellate judges have been chosen at an older age than Bennett. Nevertheless, Bennett’s age, experience and general moderation make him an acceptable nominee for Hawaii’s Democratic home-state Senators, leading to an easier confirmation.

Background

Mark Jeremy Bennett was born on February 24, 1953 in Brooklyn, NY. After getting a B.A. summa cum laude from Union College in Schenectady, NY in 1976, Bennett received a J.D. magna cum laude from Cornell Law School in 1979.[1] He then clerked for Judge Samuel King on the U.S. District Court for the District of Hawaii.[2]

After his clerkship and a brief period of self-employment, Bennett joined the U.S. Attorney’s Office for the District of Columbia as an Assistant U.S. Attorney.[3] Two years later, he moved to Hawaii to be a federal prosecutor at the U.S. Attorney’s Office for the District of Hawaii, staying there for seven years.[4]

In 1990, Bennett joined McCorriston Miller Mukai MacKinnon LLP. as Of Counsel, becoming a Partner in 1991.[5] While serving as a Partner, Bennett served as a Special Prosecuting Attorney for the City of Honolulu and as Special Deputy Attorney General in the Hawaii Attorney General’s office.[6]

In 2003, the newly elected Republican Governor Linda Lingle chose Bennett to be Hawaii’s new Attorney General.[7] Bennett was confirmed by the Democratic State Senate and served as Hawaii’s chief legal and law enforcement officer throughout the eight years Lingle was in office.

In 2011, after the election of Democrat Neil Abercrombie to the Governorship, Bennett joined the Hawaii law firm Starn, O’Toole, Marcus & Fisher as a Director.[8] He serves in that capacity to this day.

History of the Seat

Bennett has been nominated for a Hawaii seat on the U.S. Court of Appeals for the Ninth Circuit. This seat opened on December 31, 2016 with Judge Richard Clifton’s move to senior status.

Bennett’s name was proposed for the Ninth Circuit by Hawaii Senators Mazie Hirono and Brian Schatz, both Democrats, who reached out to Bennett in mid-2017.[9] In November 2017, Bennett interviewed with the White House Counsel’s Office and was formally nominated on February 15, 2018.[10]

Political Activity

Bennett has a long history of involvement with the Republican Party of Hawaii, including serving as the Party’s counsel in 2001-02.[11] Bennett also volunteered on Lingle’s gubernatorial campaigns in 2002 and 2006, as well as supporting Republican James Aiona’s gubernatorial campaign in 2010.[12] Bennett also supported Lingle in her 2012 Senate bid against Hirono.[13]

Additionally, Bennett has also been a generous donor to the Republican Party of Hawaii, donating almost $5000 over the years, including $400 in October 2017, after his name had been proposed for a federal judgeship but before the formal vetting process had begun.[14] Bennett has also donated to support Lingle, former U.S. Senator Kelly Ayotte and Hawaii State Legislator Cynthia Thielen, all Republicans.[15] On the flip side, Bennett financially supported Rep. Colleen Hanabusa (a Democrat) in her primary challenge to Schatz in 2014.[16]

Legal Career

After his clerkship, Bennett spent ten years working as a federal prosecutor in D.C. and Hawaii. In these roles, Bennett handled both criminal and civil cases, handling prosecutions at the trial level, and defending convictions on appeal. In 1990, he joined the Honolulu office of McCorriston Miller Mukai MacKinnon LLP, working in complex civil litigation. While at the firm, Bennett represented Texaco in defending against a $2 billion antitrust case brought by Democratic Governor Benjamin Cayetano.[17]

From 2002 to 2010, Bennett served as the Attorney General of Hawaii (his work as Attorney General is summarized in the next section). He left the office in early 2011 to join Starn, O’Toole, Marcus & Fisher, working in complex civil litigation. Among his most important work at the firm, Bennett defended the University of Hawaii against suits by students alleging data breaches, successfully settling the case.[18] He also represented the Hawaii legislature as amicus before the Hawaii Supreme Court.[19]

While at Starn O’Toole, Bennett also worked as an arbitrator and mediator, requiring him to judge and resolve complex disputes. Over the last seven years, Bennett has served as an arbitrator in four cases and as a mediator in six.[20]

Attorney General of Hawaii

From 2002 to 2010, Bennett served as Attorney General for the State of Hawaii, an appointed position. In this role, Bennett defended state laws and policies against litigation, as well as taking on affirmative criminal and civil actions against individuals and corporations. We summarize some of the legal positions Bennett took as Attorney General.

Gun Control

In 2008, the U.S. Supreme Court struck down the District of Columbia’s ban on ownership of handguns, finding an individual right to bear arms in the Second Amendment of the U.S. Constitution.[21] When the case was being argued, state attorneys general of both parties weighed in both in favor of and against the D.C. ban.[22] While 31 attorneys general weighed in against the ban, five, including Bennett, signed onto a brief supporting it.[23] Speaking about the case, Bennett noted:

“We think that a decision that the Second Amendment prohibits strict gun-control laws is just wrong.”[24]

Notably, at the time of the suit, Hawaii had some of the strictest gun control laws in the country.[25]

Takings

In 2005, Bennett argued Lingle v. Chevron before the Supreme Court. The case involved a challenge by Chevron to a Hawaii law that limited the rent that Chevron could charge to independent gasoline dealers leasing their stations. After the Ninth Circuit struck down the law as an unconstitutional “taking” of Chevron’s property, Bennett defended the law in oral arguments before the Supreme Court.[26] The Supreme Court unanimously held for Hawaii and Bennett’s position, arguing that state economic regulation did not necessarily constitute a “taking” even where it did not advance a legitimate state interest.[27]

LGBT Rights in Hawaii Prisons

In the mid-2000s, the Department of Justice filed a civil rights suit against the State of Hawaii on behalf of three LGBT inmates who faced harassment and abuse from prison staff.[28] Hawaii also faced a related suit brought by the ACLU.[29] As Attorney General, Bennett helped settle the suit against the federal government, with Hawaii agreeing to increased conditions and monitoring of its youth prisons, more resources for suicide prevention and the prevention of sexual abuse, and criminal background checks against prison officials.[30]

Discrimination and the Statute of Limitations

Jones v. R.R. Donnelly & Sons Co. involved an action for racial discrimination brought by African American plaintiffs against a printing company.[31] The key question before the Supreme Court was whether a four-year federal statute of limitation established for all acts passed after 1990 covered the suit in question. Bennett joined five other state attorneys general, led by future Eleventh Circuit Judge Bill Pryor (and argued by another future Eleventh Circuit Judge, Kevin Newsom), in filing an amicus brief urging the application of a two year statute of limitations under state law.[32] However, the Supreme Court unanimously rejected Bennett’s position, holding that the four year federal statute of limitations applied to the action in this case.[33]

Incidental Use of Religion in Public Life

Bennett has weighed in as amicus in two court of appeals cases involving the incidental use of religion in public life. The first case involved a challenge to the voluntary recitation of the pledge of allegiance, which the plaintiff argued was a violation of the Establishment Clause.[34] Bennett joined an amicus brief on behalf of 30 state attorneys general supporting Loudoun County.[35] The Fourth Circuit held that the voluntary recitation of the pledge did not violate the Establishment Clause.[36]

The second case was a challenge from notable atheist Michael Newdow to the use of prayer and the phrase “so help me God” in the inauguration ceremony of President Barack Obama.[37] Bennett joined all 50 state attorneys general in an amicus brief opposing the plaintiffs in the case.[38] The D.C. Circuit found that the plaintiffs lacked standing.[39]

Rights of Native Hawaiians

As Attorney General, Bennett was a strong advocate for Native Hawaiians’ rights. For example, Bennett testified in the Senate in support of the Akaka bill, sponsored by former Sen. Daniel Akaka (D-Hawaii), which conferred the same status to native Hawaiians as enjoyed by all other recognized native tribes.[40]

Additionally, Bennett strongly defended the Kamehameha Schools (a group of Hawaii private schools) policy favoring admission for native Hawaiians. After a Ninth Circuit panel struck down the policy as unconstitutional discrimination, Bennett successfully persuaded an en banc panel to uphold the policy on a 8-7 vote.[41] Bennett argued that the policy was permissible even though it was intended to create opportunities for native Hawaiians and not for diversity purposes.[42]

Nevertheless, Bennett has taken adverse positions to those of Native Hawaiians. Notably, he successfully persuaded a unanimous Supreme Court that the “apology resolution” passed by Congress signaling the rights of native Hawaiians to their “ancestral territory” did not create substantive rights that restricted the State of Hawaii.[43]

Overall Assessment

As noted above, Bennett’s age makes him a fairly unusual pick from the Trump Administration. That being said, his age and level of experience brings several advantages in the confirmation process. Firstly, it is more difficult to attack Bennett as unqualified or inexperienced. Rather, objective observers can agree that Bennett possesses the requisite legal qualifications for an appellate appointment. Secondly, it defuses attacks from Democrats, who might be concerned that defeating Bennett would lead to a younger appointment from Trump.

The disadvantage of Bennett’s long legal history is that it can be mined for partisan opposition. However, Bennett’s record provides no obvious fault lines for Democrats to oppose his nomination. Bennett has not taken any positions on many legal hot button issues, including reproductive rights, and the positions he has taken (e.g. gun control) are hardly conservative.

Rather, had Bennett been nominated by a Democratic president, it is likely that Bennett would have drawn strong opposition from conservatives, given his defense of Hawaii’s strong gun laws, and affirmative action based admissions policies. As the nomination comes from Trump, most conservative opposition is likely to be muted.

Additionally, it is important to note that Bennett’s defense of both gun control and race-based admissions policies were made in his capacity as Hawaii Attorney General. Given that the Attorney General is charged with defending Hawaii’s laws, Bennett had an ethical responsibility to mount a strong defense. As such, one cannot necessarily attribute the positions that Bennett took as Attorney General as his own legal views.

Overall, Bennett represents the kind of appellate nominee who should be more common: a credential, experienced advocate with expertise in a wide range of legal issues. Barring any flare-ups over the positions he advocated as Attorney General, he should be confirmed smoothly.

Who is at the Vetting Room writing the above?

What We Do

The Vetting Room is a legal blog dedicated to discussing, examining, and analyzing judicial nominations. Specifically, we research the records of President Trump’s judicial nominees, condense the important issues, and present it for public use. All of our investigations are conducted by volunteer attorneys who are committed to an independent and thorough review.

The Vetting Room is not formally affiliated with any partisan or nonpartisan groups, and maintains the primary goal of improving public engagement with the federal judicial confirmation process.

Who We Are

Harsh Voruganti is the Founder and Editor of The Vetting Room. Mr. Voruganti has been interested (some would say obsessed) with judicial nominations since discovering the subject in college, and is passionate about maintaining a functioning, impartial judiciary. Professionally, Mr. Voruganti is a principal at The Voruganti Law Firm, practicing criminal defense, family law, landlord-tenant law, and civil rights law in Virginia. He previously worked on religious freedom issues at the American Civil Liberties Union and the Hindu American Foundation, and on judicial nominations as an extern at the Department of Justice Office of Legal Policy.

Daniel Tilley is a staff attorney with the ACLU of Florida whose work focuses primarily on the LGBTQ community. Among his other work, he served as lead counsel in the ACLU’s federal-court litigation that, as part of a pair of consolidated cases and a team of lawyers, brought marriage equality to Florida in January 2015. More recently, he has focused on assisting transgender individuals in receiving adequate healthcare in confinement settings (prisons, jails, and civil commitment).

Maxwelle Sokol is an attorney at Glasberg & Associates in Alexandria, Virginia, a civil rights litigation firm focusing on police misconduct, prisoners’ rights, and private and public discrimination. A native to Los Angeles, she earned her B.A. in philosophy from Loyola Marymount University and her J.D. from the University of Texas School of Law.

Gregory M. Lipper is a trial and appellate litigator at Clinton Brook & Peed in Washington, DC. He previously served as Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow Greg on Twitter at @theglipper.

We shall see. WRT the 9th overall and specifically who he is replacing this guy could be Clarence Thomas......

Trump has never been a 2A defender. He only put that hat on when Hillary made gun reform a central part of her campaign platform. Now Trump's true colors are showing.

Matt

As for guns, I don't believe any hype about his past Dem opinions or gutting the 2nd amendment. Trump has been working with the NRA as allies and friends. And I more firmly believe that the Paris attack made a greater lasting impression on Trump and formed his new understanding that Americans need the Constitutional firepower to defend against these savages.

I'd bet HDE is right on with his comment. Trump has been around long enough to have his own "art of the deal". They may hate him, but he's smarter than he acts!!! TMWFI.

I don't like the choice either because of the unknown. There had better be a deal in the works.

He said his sister, a federal judge, would be a “phenomenal” Supreme Court justice. He also said that “we will have to rule that out now, at least.”

Will happen if reelected, probably has a deal with Ginsburg already....

His sister wrote that it should be legal to kill babies up to the point of departing their mother's womb and Trump is "very pro-choice" according to him.