Nominee for Oregon’s judicial opening draws Republican scrutiny

October 6, 2023 5:30 am

Magistrate Judge Mustafa Kasubhai being grilled by Republicans during U.S. Senate hearing. (Screenshot)

Oregon will get a new district judge, and probably soon. But how soon and who it might be depends on when and whether Democrats recapture a voting majority in the U.S. Senate Judiciary Committee. 

When California Democratic Sen. Dianne Feinstein, who was a member of that committee, died last month, that vacancy left Democrats and Republicans on the panel tied. That may change with a new Democratic appointment to the panel, though Republicans could try to stop the appointment. If there is solid Republican opposition to a nominee, the appointee would not be approved.

The federal district court, with 11 judges, covers a large number and a vast range of cases, including many of the most controversial, such as a recent gun rights case and numerous environmental, criminal and economic cases, and notably cases involving constitutional rights. 

This appointment emerged on Sept. 4 when five Biden Administration nominees for federal district judge seats appeared in a two-hour joint confirmation hearing before the Senate Judiciary Committee. Four of them – two from Hawaii and one each from New Jersey and Texas – were barely noticed and received few questions. 

Almost all of the attention and rough questioning was reserved for the other nominee: Mustafa T. Kasubhai of Oregon.

Kasubhai was nominated by the White House to replace U.S. District Judge Marco A. Hernandez, who is scheduled to transition to senior status next Aug. 21. Since 2018, Kasubhai has been a federal magistrate judge based at Eugene and was the first Muslim American on the federal bench. Before that he served as a state circuit court judge for more than a decade. Those appointments followed years of private practice at Eugene and Klamath Falls. He has received a number of bar awards over the years, and within Oregon he has not been notably controversial. His parents were immigrants from Mumbai in India. Oregon Sens. Ron Wyden and Jeff Merkley gave him warm introductions at the hearing.

He quickly became a hot topic among the Senate Republicans, however. Texas Sen. Ted Cruz (who didn’t bother questioning the Texas nominee) told Kasubhai, “I think your fellow nominees owe you a debt of gratitude, because many Biden nominees have been extreme, but your record is so far out of the mainstream that you have attracted virtually all of the questions.”

Of the judge’s 400 or so court decisions, only one drew the attention of the Republican senators: A ruling in the case Boudjerada v. City of Eugene, invalidating a citywide curfew during 2020 rioting and protests. The ruling did stop the curfew, since it followed the actual disturbance by about three years. The judge did not criticize a curfew set by the city in the downtown area, where the disruption occurred, but did say the citywide restriction went too far, “such that application of that citywide curfew could have criminalized people’s behavior of just trying to get home.”

Republican Sens. Mike Lee of Utah and Lindsey Graham of South Carolina blasted the ruling. Lee asked “how does a seven-hour curfew in the middle of the night in the wave of such destruction and terror prevent ample means of communication?” Neither referenced the narrower curfew that was left undisturbed. 

Elsewhere, the senators pulled quotes from more distant writing, some from college days, painting the picture of the judge as having radical tendencies. They also seized on his posting of “pronoun usage” on his court’s web page. 

Graham bore into a book which Kasubhai referenced in an article. From “How to Be an Anti-Racist,” Graham quoted the writer Ibram X. Kendi, “the only remedy to present discrimination is future discrimination.” He asked Kasubhai, “do you agree with that?” The judge said he didn’t. 

Cruz spoke of a “flirtation with Marxism,” and Sen. Thom Tillis of North Carolina at one point tossed his glasses aside and said, “you seem to be obsessed with race and sexuality … how are litigants going to be able to trust you?”

By contrast, the Democrats on the committee came to Kasubhai’s defense. Cory Booker of New Jersey asked, “you don’t care what their pronouns are when you’re applying the law?”

“No, senator,” the judge replied. 

The committee’s chair, Illinois Democrat Dick Durbin, remarked in apparent rebuke to the Republicans: “Isn’t it interesting today that when we considered your life’s work and whether you’re prepared for the federal bench the only reference made was to a case in which you issued an opinion as a magistrate which was accepted by the district court?”

No votes were taken at the hearing, and more time is allowed for written questions and answers. But the hearing made clear that Kasubhai has become the latest exhibit in political culture wars, likely a familiar name in conservative media, a Republican cause celebre.

His confirmation may hinge on the question of how many Democrats are sitting on the Judiciary Committee when that vote comes. That leave Oregon’s federal judiciary in the balance in the meantime. 


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Randy Stapilus

Randy Stapilus has researched and written about Northwest politics and issues since 1976 for a long list of newspapers and other publications. A former newspaper reporter and editor, and more recently an author and book publisher, he lives in Carlton.