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July 28, 2014

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The Policy Racket

LV lawyer Gordon, a federal bench nominee, faces benign grilling at hearing

Las Vegas lawyer Andrew Gordon received his first official grilling Wednesday before the Senate Judiciary Committee, the first step in the process toward confirming him as a federal judge for Nevada.

It wasn’t particularly eventful, which, as presiding Sen. Sheldon Whitehouse explained, was a good thing.

“It’s a sign of noncontroversialness,” he said, remarking that Gordon and the three other appointees shouldn’t be offended that only three senators from the committee showed up to pose questions about their record and their fitness to serve on the bench.

Gordon, 50, is a partner with the Las Vegas firm McDonald Carano Wilson LLP, where he specializes in civil litigation and alternative dispute resolution, with a focus on commercial disputes in business, real estate, construction, and employment matters.

He is a near life-long Nevadan, having grown up in the Silver State and returned after law school to practice law. He has never been a judge. But Sens. Harry Reid, who nominated him, and Dean Heller, expressed confidence that he would be up to the task.

“He’s got a lot of litigation experience, and his peers in Nevada ... when I mentioned to them that I was considering Andrew, they were elated,” Reid told members of the Senate Judiciary Committee at the hearing. “He has the respect of those who know him as a person and an attorney; he’s going to be a great judge.”

“In Nevada, where our delegation is certainly not one-sided, it’s crucial for us to work together to find qualified candidates … I believe Mr. Gordon is a perfect example of this,” Heller added. “He will make a wonderful district court judge in the state of Nevada.”

Reid and Heller haven’t agreed on every judicial nominee to the federal bench in Nevada this year. The two supported the confirmation of Miranda Du, who was nominated and confirmed to the federal bench in Reno. But they remain in protracted standoff over Elissa Cadish, who Reid nominated but whose candidacy Heller doesn’t support because of opinions she expressed about the reach of the Second Amendment. (Cadish has since said earlier views would not interfere with her judicial review.)

But they came together on Gordon.

Gordon, too, had to talk about how he would separate personal convictions and public pressures from his job as a judge if confirmed to the federal bench, remarking that “judges have to have the courage to make unpopular decisions at times ... without the courage to make such decisions the very foundations of our government fall apart.”

The most difficult question Gordon received was from Iowa Sen. Chuck Grassley, who asked him to define his position on the legality of prostitution.

Grassley grinned as he asked Gordon about a paper about the Supreme Court’s opinion in a 1908 case United States v. Bitty in college, almost 30 years ago. Gordon, Grassley said, “criticized the court for their view, stating that criminalization of prostitution ‘is an ineffective way to preserve marriage and the family.’

“I recognize this paper was written 30 years ago and you were in college at the time,” Grassley said. “So the first question is: Has your view on this topic changed?”

“Yes, Senator, they have changed somewhat,” Gordon replied, calling his paper, a shorter version of his senior thesis in college, “more of a policy analysis of prostitution.”

“That policy analysis is really the area of Congress and the state legislation to make decisions,” Gordon continued. “It’s not for judges to make policy decisions like that.”

No one pressed him further.

But even with no serious dispute over Gordon’s candidacy for the bench, he’s up against difficult odds to get confirmed by the end of the year.

There is not much time left on the Senate calendar to do much of anything, whether the items up for business are complex tax matters or seemingly straightforward judicial nominations.

Judicial nominations are also backlogged, a casualty of the continued political standoff between Republicans and Democrats in the Senate, which must confirm all nominees before they can start the job.

That means Gordon’s nomination may be pushed back until 2013.

“We look forward to pushing for a prompt confirmation,” Whitehouse said upon closing the hearing, “and if this should push into the following year we should hope very much that our colleagues allow this hearing to stand.”

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