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WASHINGTON — Here’s how non-controversial Mark Bennett is as President Donald Trump’s nominee to fill the 9th U.S. Circuit Court of Appeals:
When Democratic Sen. Amy Klobuchar of Minnesota had her chance to grill the former Hawaii attorney general during his Wednesday confirmation hearing she warned him that one of the harder questions involved his appearance on the popular game show Jeopardy in 1980.
“What was the question you lost on?” she asked, having already elicited some laughs by bringing up the topic in the first place.
“I only remember the one I won on,” Bennett said, smiling. “The Final Jeopardy question when I won was: The Grand Ole Opry comedian who wore a hat with a price tag.”
Bennett himself didn’t answer, and instead he turned to Hawaii Sen. Mazie Hirono, who gave it for him: “Minnie Pearl,” she said.
It was a light exchange, and one that bodes well for Bennett’s confirmation as a 9th Circuit appeals judge.
But it also highlights that Bennett is a somewhat odd nominee in the Trump era.
He supports same-sex marriage. He’s an ardent advocate of journalists’ First Amendment rights. And he once filed a legal brief in support of stricter gun regulations in the seminal U.S. Supreme Court case involving the Second Amendment — District of Columbia v. Heller.
These are not the views one might expect from someone appointed to Hawaii’s top law enforcement post by a Republican governor, much less someone hand-selected by the Trump adminstration’s legal counsel for a lifetime appointment on the federal bench.
Bennett enjoys the support of both of Hawaii Democratic senators, Brian Schatz and Hirono.
“In Hawaii, the attorney general is an appointed position and Mark served a Republican governor at a time when Democrats held a two-thirds majority in the state House and Senate,” Schatz said while testifying on Bennett’s behalf before the Senate Judiciary Committee.
“But it was never difficult to work with him because he never had a partisan agenda. Instead, he approached every issue with a focus on the substance and how we could make things better for the state.”
Schatz specifically noted Bennett’s work in shepherding a federal consent decree that the state entered into after a lawsuit found the Hawaii Department of Education was failing to properly take care of and serve developmentally disabled students.
“Thanks to his effort, this decades-old litigation came to an end, the stewardship of the department was returned to the state and, most importantly, the system of care for student was dramatically improved,” he said.
Bennett’s faceoff with the Judiciary Committee wasn’t all breezy.
Republican Sens. Ted Cruz of Texas and John Kennedy of Louisiana pressed Bennett on his views of the Second Amendment in light of an amicus brief he filed in the Heller case which ultimately solidified the individual right to possess a gun.
“As a member of the United States Court of Appeals for the 9th Circuit do you intend to follow the precedent of D.C. v. Heller?” Kennedy asked.
“Absolutely, senator,” Bennett replied, “as well as all other precedents of the United States Supreme Court.”
Cruz was equally as interested in Bennett’s views on the Heller case.
But Cruz also questioned his views in other matters related to individual property rights and the First Amendment in light of certain Supreme Court cases, including the controversial Citizens United ruling that ultimately allowed unlimited spending on elections by corporations and unions.
Hawaii is one of several states that weighed in on Citizens United when the case went before the U.S. Supreme Court in 2009.
“I will confess that some of the positions you took as attorney general give me pause for consideration for a lifetime appointment as a federal judge,” Cruz said.
Even Hirono — who made clear from the beginning that she supports Bennett’s nomination — pointed out her own disagreements with him in a case involving Hawaiian ceded lands that ultimately worked its way up to the U.S. Supreme Court.
In 2009, Bennett was successful in overturning a Hawaii Supreme Court ruling that effectively blocked the state from selling ceded lands before resolving Native Hawaiian claims.
Bennett argued at the time that a 1993 congressional resolution that apologized for the overthrow of the Hawaiian Kingdom gave Hawaiians a “moral claim to the land, but not a legal one.” The nation’s highest court agreed in a unanimous decision written by Justice Samuel Alito.
On Wednesday, Hirono asked Bennett if that experience would color his view should he be appointed to the 9th U.S. Circuit Court of Appeals.
“Will you be mindful of the federal government’s commitment to maintaining our trust relationship with our indigenous communities and the importance of ensuring their continuity,” Hirono asked.
“Absolutely, Senator,” Bennett said.
Bennett, who was born in Brooklyn, New York, has never served as a judge. But his background is as varied as the cases he’s been involved with over the years.
Bennett graduated from Union College and received his law degree from Cornell University. He worked for nine years as an assistant U.S. attorney before going into private practice.
Former Republican Gov. Linda Lingle appointed Bennett twice to serve as Hawaii attorney general from 2003 to 2010. He now works in private practice for the law firm Starn, O’Toole, Marcus & Fisher in Honolulu.
He’s a member of the conservative-leaning Federalist Society. He’s also a supporter of Native Hawaiian federal recognition, and has a history of pushing back against conservative criticism of the late-U.S. Sen. Dan Akaka’s legislation related to it.
Bennett, who boasts of prosecuting two murder cases pro bono, tends to take a harder stance on criminal justice issues. For example, he’s advocated for a three-strikes law in Hawaii and has publicly criticized the state’s wiretapping law for being too strict.
Vincent Eng, who runs a lobbying firm that advocates for judicial nominees, said Bennett’s diverse decision-making highlights the collaborative nature of his nomination.
Long-standing Senate norms — referred to as the blue slip process — give Schatz and Hirono veto power over judicial nominees, although it’s not a guarantee.
In Bennett’s judicial questionnaire regarding his nomination he points out that he was contacted by the senators’ staffers two months before the White House first reached out to him.
“Mark has always been a stellar candidate,” Eng said. “He’s very highly regarded by both Democrats and Republicans in Hawaii and across the board. He’s an individual that the legal community can really get behind.”
Bennett received a majority “well-qualified” rating from the American Bar Association.
There is no firm date for when Bennett’s nomination will be voted on by the committee. If approved, he will still require final approval by the full Senate.