Sarah Netburn, a magistrate judge for the last 12 years, has been nominated by President Biden to be a judge on the U.S. District Court for the Southern District of New York. This is yet another attempt to put a movement leftist on the bench as payback to the dark-money interests that elected him. Early in her career, Netburn interned for the Brennan Center for Justice and the Center for Reproductive Law & Policy (now the Center for Reproductive Rights), and she worked as a program associate at the Lawyers Committee for Human Rights (now Human Rights First), a group that opposes border security measures and pushes for the immigration system to admit more refugees.
As a magistrate judge, she has shown her willingness to issue activist rulings that flout the Constitution even when it means jeopardizing the safety of vulnerable women. Take the case of William McClain, a serial rapist and pedophile. In 1994, McClain pled guilty to molesting a nine-year-old boy and raping a 17-year-old girl, for which he spent 18 years in prison, followed by six years for violating his parole. After he was released in 2015, he started cross-hormone injections. In 2016, McClain, now identifying as “July Justine Shelby,” was arrested for the distribution of child pornography, and was sentenced to 15 years at Otisville Federal Correctional Institution. He appealed for transfer to a women’s facility, which the Bureau of Prisons (BOP) opposed out of concern that he would sexually harass female inmates.
Enter Sarah Netburn. In a 48-page report and recommendation, she overturned the BOP’s transfer rejection, declaring, “The overwhelming evidence suggests that BOP’s decision to deny Petitioner [McClain] a transfer to a women’s facility is based on bias and fear and not evidence.” The “concern that Petitioner will hurt someone” she dismissed as “hypothetical.” Netburn’s conclusion: “The BOP has violated Petitioner’s Eighth Amendment rights by refusing to transfer her to a women’s facility, and that refusal is not reasonably related to legitimate penological interests.”
Apparently being a convicted serial child rapist and distributor of child pornography was not enough evidence for Netburn. Instead, she twisted the meaning of the Eighth Amendment to allow for a biological male to be transferred to a female prison despite sex crimes convictions.
That is not judging; it is political activism. This was brought out during Netburn’s May 22 hearing before the Senate Judiciary Committee. Senator John Kennedy grilled Netburn, “What were you thinking in saying it’s only hypothetical” that Shelby “would reoffend?” Netburn replied that “the facts of the case were that the Petitioner had last engaged in a contact offense 30 years ago.” Yet the facts showed McClain was a serial repeat child offender. Netburn just chose to ignore it.
Indeed, as Senator Ted Cruz pointed out in his questioning, the Bureau of Prisons had argued “that if you put this person in a female prison, there will be a risk of sexual assault to the women.” But Netburn’s order suggests otherwise, stating “there are no signs that Petitioner is at risk of re-offending,” and a “theoretical risk of sexual assault . . . cannot support the BOP’s position.” “In what universe,” Cruz continued, “is someone who is a serial repeat child rapist not at a risk of reoffending?”
Cruz pressed Netburn on whether the other women in the prison “have the right not to have a 6’2” man who is a repeat serial rapist put in as their cellmate,” to which Netburn replied that “every person who’s incarcerated has the right to be safe in their space.” Netburn was in denial about how she had undermined that very principle, but consider that her report and recommendation began its section on factual background with the statement, “At birth, people are typically assigned a gender.” In her post-hearing questions for the record, Ranking Member Lindsey Graham asked Netburn what she meant by that: “Is it possible to determine a person’s sex by only analyzing their chromosomes?” The nominee replied, “I have never studied biology and therefore I am unqualified to answer this question.” Is her ignorance willful or by (lack of) training?
Back to reality: Studies have shown that many incarcerated women have experienced some form of trauma in their lifetime prior to their incarceration, with a large majority having endured physical or sexual violence in childhood. Being forced to live in prison alongside men who have histories of predatory conduct violates women’s physical safety. The sexual assaults by biological males incarcerated in women’s prisons should come as no surprise—except to those who are blinded by ideology. Such blindness in Netburn’s case translates to real harm for women—brought about by the abuse of the Constitution that comes naturally for leftist political activists who are placed on the bench. It is a disgrace that President Biden deems Netburn worthy of a lifetime appointment to the federal judiciary. Her nomination is making its way to a vote of the Judiciary Committee and first appeared on the agenda for the markup scheduled today, which was cancelled. Whenever they hold a vote, Republican members should take a strong stand against this nomination.