Senate Judiciary committee advances 1st Circuit nominee Gustavo Gelpi

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The U.S. Capitol is seen in Washington, U.S. REUTERS/Joshua Roberts

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  • Senate panel voted 12 to 10 to move nomination to Senate floor
  • Gelpi's criticism of the Supreme Court's 'insular cases' drew Republican opposition

(Reuters) - The nomination of U.S. District Judge Gustavo Gelpi to serve on the 1st U.S. Circuit Court of Appeals on Thursday advanced to the full U.S. Senate over Republican objections to his criticism of the U.S. Supreme Court's "insular cases" from the early 20th century.

The U.S. Senate Judiciary Committee backed Gelpi's nomination in a party-line 12 to 10 vote.

If confirmed, Gelpi, a federal judge in Puerto Rico since 2006, would become the second judge of Hispanic origin to serve on the Boston-based appeals court. Circuit Judge Juan Torruella, the 1st Circuit's first Hispanic judge, died in October 2020.

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President Joe Biden's administration has made diversifying the federal bench a main focus.

Democrats and Republicans on the Judiciary committee were divided over Gelpi's criticism of a series of rulings in the early 1900s by the Supreme Court that many legal experts contend created a "subclass" of U.S. citizens living in unincorporated territories without full constitutional protections.

Torruella was a leading critic of the cases and urged the Supreme Court in a 2014 speech to "disavow" them.

"Both liberal and conservative legal scholars have criticized the insular cases," Senate Judiciary Chairman Dick Durbin (D-IL) said on Thursday. "This is a line of Supreme Court decisions, from over 100 years ago, which held that U.S. citizens living in unincorporated territories like Puerto Rico may lack some of the same constitutional rights as U.S. citizens living in the states."

Durbin called Gelpi an example of the “exceptionally qualified” attorneys Biden has nominated as part of his drive to diversify the bench.

U.S. Sen. Chuck Grassley, the Iowa Republican, said he was troubled by Gelpi's views. "He's opined on it in his opinions. He wrote a book about it. Judge Gelpi has taken the remarkable step of calling the Supreme Court cases wrongly decided and calling for their overturning," Grassley said. "That's not unprecedented. But it's highly unusual. And frankly, it's probably inappropriate coming from a trial judge."

In written responses submitted to the judiciary committee, Gelpi said "notwithstanding my academic criticism, the Insular Cases doctrine constitutes binding Supreme Court precedent." He said he was bound, as all judges are, "to adhere to it whenever applicable."

Before joining the federal bench, Gelpi's career in the law included a stint as a federal public defender in Puerto Rico from 1993 to 1997. He is a graduate of Suffolk University Law School, where he has served as an adjunct professor since 2012. The American Bar Association unanimously said Gelpi was "well qualified" for the appeals court.

Gelpi was first approached by the Obama White House about a possible nomination to the 1st Circuit in April 2012, according to a questionnaire he submitted after Biden nominated him in May.

The committee also advanced the nominations of Massachusetts Superior Court Judge Angel Kelley to serve on the U.S. District Court for the District of Massachusetts, and Christine O'Hearn, a labor and employment partner at New Jersey's Brown & Connery, to be a judge on the U.S. District Court for the District of New Jersey.

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