Last week, Senate Majority Leader Chuck Schumer presented a cloture motion on the nomination of Mustafa Kasubhai, a magistrate judge nominated to the District of Oregon. A cloture vote is set up for today, followed by a vote on the nomination this afternoon if cloture is invoked. Kasubhai was only reported to the Senate in November by a party-line vote of the Judiciary Committee—over strenuous protest by Republican members. Since Senator Joe Manchin announced a few months ago that he would not support a judicial nominee who lacked any Republican support, Schumer is likely relying on GOP absences to help confirm Kasubhai.
Recall just how extreme this nominee is. This is someone with a history of early Marxist statements, such as discussing the need for a “creative struggle toward redefining property” in a law school writing, and who more recently gave a speech entitled “Reflections on Equity and Privilege” that Senator Ted Cruz branded as “Marxism in 2020.” In a 2021 interview, Kasubhai added that “We have to set aside conventional ideas of proof when we are dealing with the personal and interpersonal work of equity, diversity and inclusion.” Last year, he called DEI “the heart and soul of the court system” in a presentation to the Oregon State Bar.
Kasubhai encouraged counsel before him as a magistrate to declare their pronouns and honorifics, including Ms., Mx., and Mr., and instructed them to use the declared pronouns and honorifics of the other litigants. Then he had the nerve to claim, “Those were not requirements and rules, those were suggestions and invitations for people to use.” As Senator John Kennedy pointed out, that practice is “not voluntary,” but “oppressive.”
Kasubhai issued a ruling holding to be unconstitutional curfews imposed during the 2020 riots, in which a Portland federal courthouse was firebombed. And when questioned during his hearing, he refused to describe the violence and property damage in Eugene, Oregon, as a “riot.”
The nominee’s early writings include a 1996 article entitled “Destabilizing Power in Rape: Why Consent Theory in Rape Law Is Turned on Its Head.” There Kasubhai approvingly discussed the radical professor Catharine MacKinnon’s theory “that sexuality itself is a power web in which heterosexual relations per se are infused with violence and control.” On the bench, he has shown leniency in cases involving violent crimes against children. In a decision unanimously reversed by the Oregon Court of Appeals while he was serving as a state judge, he would not terminate the parental rights of a father with a history of domestic violence and drug dependency who had been recently released from prison.
No wonder Chairman Richard Durbin overrode protesting Republican senators and would not permit debate when the Judiciary Committee convened for the November vote on Kasubhai’s nomination. Now Schumer is depending on Republican absences in the full Senate to jam this nomination through. Hopefully, Republican senators, a number of whom happen to be on the vice-presidential short list, will come out to the Senate floor in full force to vote against this awful nominee.