On Wednesday, Missouri GOP Senator Josh Hawley grilled Holly Thomas, President Joe Biden&#8217;s nominee for the U.S. Court of Appeals for the Ninth Circuit, on her past actions in which she signed briefs that alleged that concerns about having biological males in girls bathrooms were unfounded. Thomas repeatedly dodged when Hawley asked if she stood by her comments in two separate briefs when she served as an advocacy lawyer.
<blockquote class="twitter-tweet" data-width="500" data-dnt="true">
Judge Holly Thomas has a deep understanding of and commitment to civil and human rights and would bring much needed professional diversity to the bench.
Her background in state &amp; federal civil rights law is notable, and we strongly support her nomination. <a href="https://t.co/yhNFKSUu72">https://t.co/yhNFKSUu72</a> <a href="https://t.co/6G2KRMKnQW">pic.twitter.com/6G2KRMKnQW</a>
&mdash; The Leadership Conference (@civilrightsorg) <a href="https://twitter.com/civilrightsorg/status/1450833006726352900?ref_src=twsrc%5Etfw">October 20, 2021</a></blockquote>
Hawley charged, “Do you stand by your comments in these briefs that there is no evidence of violence or crime in restrooms by allowing biological males to use biological females&#8217; restrooms?”
Thomas answered, “In every case that I had as an advocate, it was my duty to represent the views of my clients.”
Hawley persisted, “Do you agree, still today, that there is no data, evidence in support of the claim that allowing people to use bathrooms corresponding with their gender identity will lead to increased violence or crime in restrooms.  Do you think that&#8217;s accurate?  You signed those statements. You filed that brief.  Do you think that that&#8217;s right?”
“At the time that I filed the briefs I was representing clients zealously as I was ethically bound to do,” Thomas dodged.
Still later, Hawley gave Thomas one last chance: “I just want to be clear; you stand by these comments. You stand by what you filed in these multiple different cases. You don&#8217;t think you were wrong about that? You haven&#8217;t changed your view.  You wouldn&#8217;t change anything that you said that you filed, that you put your name to?”
Thomas replied, “I was an advocate, represented my client. I did not represent my personal views about issues in the same way that my personal views don&#8217;t come into what I do as a judge.”
The exchange went like this:
Hawley:
<blockquote>I want to come back to an issue that Senator Grassley raised and I just want to make sure I understand your position. I&#8217;m thinking about these briefs that you signed in two different cases, one in North Carolina, one in Texas. Let me ask you about the North Carolina case first. You argued there that Title VII prohibits disadvantaging someone because of gender non-conformity, regardless of the birth assigned gender or current gender identity. The brief also suggests that the privacy and safety concerns underlying North Carolina&#8217;s proposed bathroom separation of boys and girls are unfounded and that the state had not demonstrated any public safety risk. 
In the Texas litigation, you said there was no data or tangible evidence in support of the claim that allowing people to use bathrooms corresponding with their gender identity will lead to crime in restrooms. I have to ask you, in light of what we are seeing in Loudoun County, there are reports about this in other places but it&#8217;s particularly troubling in light of the recent events in Loudoun County, where a boy in late May sexually assaulted a ninth grade girl in her school&#8217;s restroom after he identified as being gender-fluid. He was transferred to another school where a second assault occurred just earlier this year.  Do you stand by your comments in these briefs that there is no evidence of violence or crime in restrooms by allowing biological males to use biological females&#8217; restrooms? </blockquote>
Thomas:
<blockquote>As I explained to Senator Grassley, in every case that I had as an advocate, it was my duty to represent the views of my clients. And that&#8217;s what I did in those briefs which were filed when I worked for the New York State Solicitor General&#8217;s Office.  Now, I was not familiar before this morning with the Loudoun County incident, but again, what I would say is this: that I understand well being a judge now, the difference between being an advocate, advocating for your clients, and being a judge who is duty-bound, who takes an oath, and one that I take very seriously, to apply the law to the facts and the record and to review each matter individually as it comes before you. That&#8217;s what I would do were that issue to come before me if confirmed.</blockquote>
Hawley:
<blockquote>I&#8217;m just curious if you stand by these comments. Do you agree, still today, that there is no data, evidence in support of the claim that allowing people to use bathrooms corresponding with  their gender identity will lead to increased violence or crime in restrooms.  Do you think that&#8217;s accurate?  You signed those statements. You filed that brief.  Do you think that that&#8217;s right?</blockquote>
Thomas:
<blockquote>Again, at the time that I filed the briefs I was representing clients zealously as I was ethically bound to do, and in a new case on new facts, I would have to analyze it based upon what was presented to me or if sitting on appeal based on the record.</blockquote>
Hawley:
<blockquote>I&#8217;m asking you to do that now. I think that this is important. You were actually counsel of record in the North Carolina case. You signed the brief in the Texas case. Now I understand you were representing clients but of course I also understand you have a duty not to sign briefs that you think are unethical or that misrepresent facts so I assume that you think that the arguments made in these briefs are correct and accurate or you wouldn&#8217;t have signed them; certainly you wouldn&#8217;t have been counsel of record. 
These are quite dramatic claims that you made in both of these cases and now we have reports in various parts of the country but Loudoun County most immediately, and most publicly, about assault by a biological male on a ninth grade girl and then a second assault happening. It&#8217;s exactly what you said in these briefs wouldn&#8217;t happen. I&#8217;m just wondering what you would say to the parents of this girl who was assaulted in a restroom at school. She&#8217;s in ninth grade. Would you maintain to them that their concerns are unfounded and that they shouldn&#8217;t be concerned about what happened. Is that the message? </blockquote>
Thomas: “Sitting here as a judge my duty is to review the cases that come before me on the evidence that comes before me. I can&#8217;t comment on a case that&#8217;s pending, on a case that might come into my court —” 
Hawley: “Well, this case isn&#8217;t pending before you.”
Thomas: “I can&#8217;t comment on a case that&#8217;s pending anywhere per the California code of judicial ethics. So the only thing that I can tell you is that again, I understand —”
Hawley: “I just want to be clear; you stand by these comments. You stand by what you filed in these multiple different cases. You don&#8217;t think you were wrong about that? You haven&#8217;t changed your view.  You wouldn&#8217;t change anything that you said that you filed, that you put your name to?”
Thomas: “Again, I as an advocate, represented my client. I did not represent my personal views about issues in the same way that my personal views don&#8217;t come into what I do as a judge. I understand the difference between that advocacy role that I had then and the judicial role that I hold now.”
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