Biden judicial nominee takes heat over recommendation for transgender inmate, answer on sex

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McConnell says Biden judicial nominee 'wilted' under GOP questioning

Senate Minority Leader Mitch McConnell, R-Ky., torched President Biden's judicial nominee Sarah Netburn for engaging in "political activism from the bench" after transferring a transgender convicted rapist to a women's prison.

Judge Sarah Netburn, nominated by President Biden to one of the most prestigious federal courts in the country, faces a rocky path forward, as the Senate Judiciary Committee passed up two opportunities Thursday to move forward on her advancement. The apparent delay comes after Republicans highlighted her decision to move a transgender individual, who is also a sex offender, into a women's prison. 

Biden nominated Netburn to the U.S. District Court for the Southern District of New York, one of the most prestigious and busiest federal courts in the country.

During remarks on the Senate floor Thursday, Senate Minority Leader Mitch McConnell, R-Ky., said the Judiciary Committee "has received almost a hundred letters – from liberals – opposing Judge Netburn’s activism." 

"Apparently, it’s not enough for Senate Democrats to rubber-stamp radicals to the courts. They desperately don’t want the American people to know about it," McConnell said. "The cat is out of the bag." 

Netburn ordered the transfer of inmate July Justine Shelby, who was imprisoned under the name William McClain, to a women's prison, against the recommendation of Bureau of Prisons officials. 

Sen. John Kennedy, R-La., criticized Netburn during a May hearing, labeling her a "political activist." 

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Magistrate Judge Sarah Netburn testifies before the Senate Judiciary Committee. (Senate Judiciary Committee)

While grilling Netburn before the House Judiciary Committee last month, Kennedy noted that Shelby, who was incarcerated at the Federal Correctional Institution in Otisville, New York, had been convicted for molesting a nine-year-boy and raping a 17-year-old girl, as well as sending child porn to other sex offenders. 

"I issued a report and recommendation to the district judge recommending that the district judge transfer the petitioner to a women's facility," Netburn said at the hearing. "My recommendation was that the petitioner's serious medical needs were being denied by keeping her in a men's facility." 

Sen. Ted Cruz, R-Texas, accused Netburn of being "willing to subjugate the rights of individuals to satisfy [her] political ideology." 

Cruz pressed Netburn on whether the other women incarcerated had a right not to have a six-foot-two "serial child rapist with male genitalia" put in as their cellmate. 

At her nomination hearing, Netburn was repeatedly questioned over her 2022 recommendation that Shelby "be immediately transferred to a women’s facility" over the objections of the Bureau of Prisons.

Judge Anne Hwang, Judge Sarah Netburn, Judge Michelle Court, Stacey Neumann and Judge Cynthia Valenzuela in a Senate Judiciary Committee nomination hearing. (Senate Judiciary Committee)

Ranking member Lindsey Graham, R-S.C., asked, "In your Report & Recommendation, you open your ‘Factual Background’ section by stating: ‘At birth, people are typically assigned a gender.’ … Is it possible to determine a person’s sex by only analyzing their chromosomes?"

Netburn responded, "I have never studied biology, and therefore I am unqualified to answer this question."

McConnell slammed how Democrats ran last month's fiery confirmation hearing in remarks on the Senate floor Thursday. 

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"Soon the Judiciary Committee will consider promoting a magistrate in New York, Sarah Netburn, to the district court after a less-than-judicious committee process," McConnell said. "Judge Netburn’s hearing was a contentious affair. You should go watch it. My friends, the junior senators from Louisiana and Texas, had the judge dead to rights on her judicial activism from the bench." 

"She was clearly prepared for their line of questioning. But by the end, she wilted under the withering fire from my colleagues," he continued. "That’s when the acting chairwoman of the committee got involved. After Republicans were finished questioning Judge Netburn, she invited the nominee to defend herself. Her defense, of course, flatly contradicted her written opinion as a judge." 

Senate Minority Leader Mitch McConnell ripped Biden nominee Judge Sarah Netburn during remarks on the Senate floor Thursday. (AP Photo/J. Scott Applewhite)

"Committee Republicans rightly objected. It’s one thing to give a nominee the chance to rehabilitate herself, but giving her the last word as she lied to the committee is a different matter entirely," McConnell continued. "After the nominee gave two different explanations for why she had engaged in political activism from the bench, committee Democrats blocked further questions and closed the hearing." 

"It sounds an awful lot like the way another nominee, Adeel Mangi, explained his policy views to liberal interest groups only after the committee was finished questioning him. Judge Netburn got the last word, here," McConnell added, then referencing Kennedy's remarks: "As the junior senator from Louisiana said, it looks an awful lot like a cover-up." 

The Senate Judiciary Committee was expected to vote on Netburn's nomination Thursday. 

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If approved, Senate Majority Leader Chuck Schumer, D-N.Y., would have to decide when or if he'll bring the nomination up for a floor vote – a move that would put vulnerable Democrats on the spot. 

The Senate Judiciary Committee held a business meeting on Thursday slated to discuss pending nominations, but lawmakers did not bring up Netburn. 

Netburn has served as a magistrate judge for 12 years.

Fox News' Louis Casiano contributed to this report.