Ex-Ginsburg clerk sees bipartisan support for 4th Circuit nomination

Estudillo, King, and Lin testify before the Senate Judiciary Committee regarding their nominations to be U.S. district judges for the Western District of Washington on Capitol Hill in Washington
REUTERS/Jonathan Ernst
  • As Virginia state solicitor, Toby Heytens argued in defense of the state's effort to remove a Robert E. Lee statue in Richmond.
  • Republican member of Senate Judiciary Committee said Heytens would be "moderating force" on 4th Circuit.

(Reuters) - The Biden administration's first nominee to the 4th U.S. Circuit Court of Appeals garnered bipartisan support on Wednesday for his appellate work and faced little opposition as he appeared before the U.S. Senate Judiciary Committee for his confirmation hearing.

Democrats on the committee said nominee Toby Heytens, the Virginia state solicitor general since 2018, had a "tremendous track record" as an appellate advocate and academic. Heytens also got support from the ranking Republican on the committee and did not face any significant criticism from other members. The committee hasn't yet scheduled a vote.

A former law clerk to the late U.S. Supreme Court Justice Ruth Bader Ginsburg, Heytens is on leave from the University of Virginia School of Law, where he's taught since 2006.

Heytens, as Virginia's top appellate lawyer, has defended pandemic-related emergency orders and the state's effort to remove a 131-year-old monument in Richmond, where the 4th Circuit is based, honoring Confederate general Robert E. Lee.

The decision last year of Virginia Governor Ralph Northam, a Democrat, to remove the statue drew lawsuits from property owners and a descendant of the parties who originally transferred the land and the statue to Virginia. Heytens, who served as lead counsel, identified the litigation on a U.S. Senate questionnaire as one of the most significant cases he's worked on.

Democratic Senator Dick Durbin of Illinois, chairman of the Judiciary Committee, pressed Heytens about whether and how he faced any "outside" pressure defending Virginia in the monument litigation.

"One of the things that's so significant about government service is the knowledge that you're never just representing an individual in the way that you sometimes are in private practice," Heytens said. "You are representing the commonwealth as a whole. That's one of the things that makes public service so thrilling, but it also can make it a little scary sometimes."

Senator Chuck Grassley of Iowa, the ranking Republican on the committee, said he would not agree with every ruling Heytens writes on the 4th Circuit, if he is confirmed, but "I believe he could serve as a moderating force" on the appellate bench.

Republican Senator John Kennedy of Louisiana said Heytens had "well-established" intellect.

Heytens earlier served at the Justice Department's solicitor general's office from 2007 to 2010. He was first an associate and then counsel at O'Melveny & Myers from 2003 to 2006.

President Joe Biden nominated Heytens in June to succeed Circuit Judge Barbara Milano Keenan, who created a vacancy when she took senior status.

Heytens appeared on Wednesday with two nominees for the Connecticut federal bench, Sarala Nagala and Omar Williams, and two nominees to the Eastern District of Virginia, Michael Nachmanoff and Patricia Giles. None of them appeared to face any strong opposition from Republicans.

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