Mustafa Kasubhai has served as a federal magistrate in Eugene since 2018 and is seeking a lifetime appointment as a U.S. District Court judge. Throughout the hearing, Republican Senators focused less on his judicial record and philosophy and more on comments he鈥檚 made outside of the courtroom about race, diversity and gender.
Last month, President Joe Biden nominated Kasubhai to take over for U.S. District Court Judge Ann Aiken, who is taking senior status, a form of semi-retirement in which judges often dramatically reduce their caseload. Kasubhai was the first Muslim American on the federal bench when he became a magistrate. Before that he spent roughly a decade as a judge on the Lane County Circuit Court and also practiced civil law in Eugene and Klamath Falls.
He told senators that 鈥渉umility is the foundation鈥� of the courts and of upholding the nation鈥檚 laws.
鈥淪o what I try to do when I sit on the bench is I extend to people graciousness and patience so that they have not just the opportunity to be heard, but to be deeply heard,鈥� Kasubhai testified. 鈥淲hen I issue a ruling whether somebody prevails or doesn鈥檛 prevail, I want that ruling to be conveyed in a way that helps them to think of the court as a place in which decisions can be decided impartially without regard to who they are and that they were heard.鈥�
Oregon Sens. Ron Wyden and Jeff Merkley, both Democrats, introduced Kasubhai at the hearing; Wyden telling Senate Judiciary Committee members that the judge鈥檚 鈥渃redentials are so long I would keep you to breakfast if I went through.鈥�
Outside the courtroom, Kasubhai is a woodworker and even owns a portable sawmill that he uses to mill logs into artisan wood products, Wyden said.
鈥淪o, if you are ever looking for a way 鈥o have some wonderful floors in your home, don鈥檛 call Ghostbusters, call our nominee because he can do it for you,鈥� Wyden told his colleagues.
From there, the mood quickly turned confrontational. Republican senators raised questions about statements Kasubhai has made surrounding gender, race, equity and inclusion.
鈥淎 number of the questions, it seems to me, were just what I would call, sort of hot button culture war kinds of issues,鈥� said Carl Tobias, a professor of law who studies the judiciary at the University of Richmond.
鈥淭he GOP senators really were asking sometimes trick questions, but also difficult questions to answer. And I thought he was very clear in responding and straightforward about that and that鈥檚 all a nominee can do in that situation.鈥�
Many of the questions from Republicans lacked context, did not deal with the nominee鈥檚 written legal opinions or referenced decades-old writing from Kasubhai鈥檚 time in college and law school.
鈥淎 lot of it is 30 years old, so is that really relevant?鈥� Tobias told OPB.
Sen. Mike Lee, R-Utah, asked the judge about a presentation he gave this year to the Oregon State Bar.
鈥淵ou included the following in your remarks: 鈥楧EI 鈥� diversity, equity and inclusion 鈥� is the heart and soul of the court system. Can we say that? Yeah, I just did and I say it proudly.鈥欌�� Lee said, quoting the nominee. 鈥淛udge, could you explain what that means?鈥�
Kasubhai replied: 鈥淎ccess to justice is at the heart of the work that I do within the courtroom and ensuring that everybody is dignified and treated with dignity when they come into the courtroom and from me to preside over those cases.鈥�
Lee questioned whether that was more important than the rule of law or the Constitution itself.
Kasubhai replied that in the context he made the remarks, he was saying everyone, regardless of their beliefs or background, is entitled to equal justice in the courts.
Other Republican lawmakers took the opportunity to question Kasubhai about his political ideology.
鈥淚 looked at some of your readings and writings, your decisions, you seem to have an affinity for Marxism,鈥� Sen. Marsh Blackburn, R-Tennessee, said to Kasubhai.
She referred to a 1994 essay in which, in her characterization, Kasubhai criticized the concept of private property. It was written around the same time Kasubhai was attending law school at the University of Oregon.
鈥淵ou argued that and I quote 鈥榩roperty incites rebellion.鈥� This is one of the many positive statements that you have made about Marxist approaches and Marxist policies,鈥� Blackburn said. 鈥淚t disturbs me when I see this leaning to Marxism in your writings. So a yes or no question, are you a Marxist?
鈥淣o, Senator,鈥� Kasubhai replied.
鈥淥K, will you right now disavow the tenets of Marxism that you have praised in some of your writings?鈥� Blackburn asked.
鈥淪enator, I have not praised Marxist ideas, and I would disavow any other system than that would be supported by our US Constitution and our laws,鈥� Kasubhai responded.
The hearing and its partisan critiques of the nominee were summed up by Sen. Ted Cruz, R-Texas: 鈥淵our fellow nominees owe you a debt of gratitude, because many Biden nominees have been extreme, but your record is so far out of the mainstream that you have attracted virtually all of the questions,鈥� Cruz told Kasubhai.
Sen. Lindsey Graham, R-South Carolina, asked Kasubhai about a pamphlet he created as a resource for other judges to use, if they want, at the beginning of a courtroom proceeding.
鈥淚 think you created pronouns in the court guide,鈥� Graham asked. 鈥淭ell me about that.鈥�
Kasubhai said he created a 鈥渃heat sheet for the bench鈥� so that 鈥渆verybody who comes before the court can be acknowledged and identified in dignified ways and that related to the issue of the use of pronouns and honorifics such as mister, or miss or mix 鈥� So I invite people when they come to court and introduce themselves to offer their identity in the way of their honorifics.鈥�
Sen. John Kennedy, R-Louisiana, stated that Kasubhai seemed to be 鈥渙bsessed with race and sexuality.鈥�
鈥淚 mean you even go so far as to say that when race and sexuality and diversity and inclusion are at issue, we need a separate standard of proof in the United States, federal judiciary,鈥� Kennedy said. 鈥淗ow are litigants going to be able to trust you?鈥�
鈥淪enator, that鈥檚 not what I鈥檝e said,鈥� Kasubhai replied. 鈥淭here is no different standard.鈥�
Kennedy pushed back, and Kasubhai doubled down:
鈥淭he work that I鈥檝e done on the bench in ruling over all the people鈥檚 cases that have occurred in front of me from all backgrounds of all faiths, you鈥檒l find that I have upheld the rule of law and upheld the precedent of our Constitution and our Supreme Court and the Ninth Circuit,鈥� Kasubhai said.
鈥淚 just don鈥檛 see how you can be a fair-minded judge,鈥� Kennedy said.
Many Democrats on the committee took the opportunity to let Kasubhai provide more context for his past comments and writings.
Sen. Cory Booker, D-New Jersey, said there seemed to be some confusion among his colleagues about strong beliefs on the importance of diversity for the court鈥檚 own legitimacy and Kasubhai鈥檚 ability to be an objective judge when it comes to applying the law fairly.
鈥淵ou don鈥檛 care what their pronouns are when you鈥檙e applying the law,鈥� Booker asked Kasubhai.
鈥淎bsolutely not,鈥� Kasubhai replied.
鈥淵ou don鈥檛 care the color of their skin when you鈥檙e applying the law,鈥� Booker asked.
鈥淢ost certainly not,鈥� the judge replied.
鈥淵ou are applying the law, even though you do believe like most of the people around this dais that having diverse teams is a good thing for America,鈥� Booker asked. 鈥淎nd when it comes to doing your job, you have a rigorous process of which these things don鈥檛 enter.鈥�
鈥淵ou said it better than I could,鈥� Kasubhai responded.
Next, Senators will give Kasubhai written questions, which he鈥檒l respond to later this month. Little is likely to happen until the late Sen. Dianne Feinstein鈥檚 seat on the committee is filled, Tobias said. Then, the Judiciary Committee will vote on whether to send Kasubhai鈥檚 nomination to the full Senate for a confirmation vote, possibly before the end of the year.
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