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Judges and Judiciary,

Jul. 10, 2024

Federal judge nominee sharply questioned over past writings

Republican senators questioned Alameda County Judge Noël Wise about articles she wrote on judicial diversity, gender identity and whether bench officers should engage in public protests.

Judge Noël Wise

Alameda County Superior Court Judge Noël Wise faced hostile questions from several Republican senators Wednesday in her confirmation proceedings to be a federal judge in the Northern District of California.

Wise has written widely for news publications and an article that she wrote for The Atlantic magazine that criticized former President Donald Trump for a lack of diversity among his judicial nominees came in for sharp questioning. Articles she has written about gender identity and whether judges should participate in protests also drew pointed questions, though none of the Republican senators questioned any of her rulings.

Democrats, who comprise an 11-10 majority on the committee, supported Wise, making it likely her nomination will be approved in the committee and forwarded to the Senate floor.

But U.S. Sen. Lindsey Graham, R-SC, who sometimes supports President Joe Biden's judicial nominees, made it clear he was opposed to Wise, reacting with incredulity when she denied making a "political statement" in her 2020 article in The Atlantic criticizing Trump's appellate court nominees because "85 percent are white and 80 percent are male. ... The judiciary crafted over the past four years does not look like America."

Noting that she wrote several articles as a judge, not as a college student, Graham blasted Wise. "I think you're a zealous advocate who wants to be a judge and an advocate at the same time," he said. "You ought to get into politics and not be promoted as a judge."

Several other Republican senators also criticized a 2017 article by Wise for Time Magazine over gender identity which she said was written about babies born with hormonal irregularities but which also mentioned bathroom bills concerning transgender students.

"The article that I wrote took no position about who should be able to use a bathroom," Wise told U.S. Sen. Mike Lee, R-UT. "My limited concern is about children at the moment of birth who a doctor cannot assign as male or female."

U.S. Sen. Josh Hawley, R-MO, described the arguments in Wise's article as "extremely broad," saying it would apply to a variety of cases. "I think these positions are insane," he told her, insisting she recuse herself on a host of cases.

"Respectfully, that it not what the article says," Wise responded.

Wise emphasized that she has issued more than 10,000 opinions during her decade as a judge, including some that did not line up with her personal views. U.S. Sen. John N. Kennedy, R-LA, said he believed she was being dishonest about putting her political beliefs aside, though he did not cite any examples of her court rulings.

"The best evidence of the type of federal judge I will be is the type of judge I have been for 10 years who ... always puts the law above my personal beliefs," she responded.

Kennedy interrupted Wise's answer and then responded in a mocking tone: "Do you also believe in Bigfoot? Do you believe in the tooth fairy?"

Biden nominated Wise last month to replace U.S. District Judge Edward J. Davila of San Jose, an appointee of President Barack Obama who is planning to take senior status upon confirmation of his successor.

Democrats hold a narrow majority in the Senate, and three Republicans - including Graham - sometimes vote for Biden's judicial nominees. If none of them support Wise, that could complicate her nomination, because U.S. Sen. Joe Manchin, I-WV, has indicated he would not vote to confirm any nominee who is opposed by every Republican. Wise could still be confirmed without Manchin's vote, but it would be close.

She is a former U.S. Department of Justice attorney in its environmental and natural resources division who subsequently worked as an in-house counsel with Pacific Gas & Electric Co. and then for eight years at her own firm, Wise Gleicher, before Gov. Jerry Brown appointed her to the state court bench.

The Senate Judiciary Committee is scheduled to vote Thursday on three nominees for the Central District of California. President Joe Biden has yet to nominate anyone for two current vacancies: the seats of Senior U.S. District Judge Gonzalo P. Curiel of San Diego, who took senior status last September; and former U.S. District Judge Cormac J. Carney of Santa Ana, who retired in May.


Craig Anderson

Daily Journal Staff Writer

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