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This tale of two conservative judicial nominees, one white and one black, shows that race can still be a sensitive area in federal court nominations. A coalition of civil rights groups, from the National Association for the Advancement of Colored People, Leadership Conference on Civil Rights, Hispanic and women’s groups has raised “grave concerns” about the first black nominee to the Denver-based 10th U.S. Circuit Court of Appeals, Jerome Holmes, because he has been a “longstanding and outspoken critic of affirmative action.” Meanwhile, little controversy was generated by the nomination to the 10th Circuit of Neil Gorsuch, a conservative white attorney whose book opposing assisted suicide will be released this month. He is the son of the controversial Reagan administration head of the Environmental Protection Agency, Ann Gorsuch Burford. Holmes, 44, an attorney with Crowe & Dunlevy in Oklahoma City, drew a critical letter signed by 15 civil rights groups, pointing to his 2003 editorial comments in the Daily Oklahoman stating that the landmark U.S. Supreme Court decision Grutter v. Bollinger “didn’t go far enough.” Grutter upheld the University of Michigan Law School’s ability to take race into consideration in admissions. Holmes wrote that the court “missed an important opportunity to drive the final nail in the coffin of affirmative action.” He has also editorialized in support of school voucher programs, the death penalty and, in 2002, criticized Jesse Jackson and Al Sharpton as peddlers of “a misguided and dangerous message of victimization.” Holmes resigned from the all-male Oklahoma City Men’s Dinner Club in February shortly before his initial nomination to the district court bench. (President George W. Bush in May elevated that nomination to the 10th Circuit bench.) In response to written questions from Democratic senators, Holmes said last week that he would not disqualify himself from cases based on his past criticisms. “My personal opinions as expressed in editorial writings would play no role in the judicial decision-making process,” he said. Holmes said that he resigned from the all-male club because, “I came to the conclusion that the club’s policy of remaining all male was problematic.” “[Holmes'] criticism of affirmative action raises serious questions about whether litigants could expect him to rule impartially and fairly on claims that turn on legal principles of affirmative action, and about [his] approach to antidiscrimination laws more broadly,” states the June letter to the U.S. Senate Judiciary Committee. Carl Tobias, a professor at the University of Richmond School of Law who follows the federal courts, said that he did not think the concerns would hold up Holmes’ confirmation. Holmes spent 11 years as an assistant U.S. attorney in the Western District of Oklahoma before joining Crowe & Dunlevy in 2005. His practice includes white-collar defense and complex civil litigation. Gorsuch on assisted suicide Gorsuch, 38, clerked for U.S. Supreme Court justices Byron R. White and Anthony M. Kennedy, and has the support of Colorado’s Democratic senator, Ken Salazar. Gorsuch, in response to written questions on assisted suicide, noted that the Supreme Court has twice vindicated the power of states to make their own laws with respect to physician-assisted suicide. Gorsuch said that he would follow the court’s precedents. In a 2005 editorial in the conservative National Review, Gorsuch took liberals to task for relying on constitutional lawsuits to achieve policy goals. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary,” Gorsuch wrote. Gorsuch received his law degree from Harvard and a doctorate in philosophy from Oxford University. He spent a decade with Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington before joining the U.S. Department of Justice in 2005 as principal deputy to the associate attorney general. Gorsuch’s mother, Burford, resigned in 1983 amid allegations of undue industry influence and lax enforcement of environmental laws. Gorsuch was also nominated by President Bush in May. No date has been set for a judiciary committee vote on either nomination.

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