A U.S. Senate panel on Thursday narrowly rejected one of President Joe Biden's judicial nominees in New York after Republicans strenuously objected to a decision she issued as a magistrate judge recommending that a transgender inmate convicted of child sex abuse be transferred to a women's prison.
Senator Jon Ossoff of Georgia broke with his fellow Democrats on the Senate Judiciary Committee and joined with Republicans on a 10-11 vote to reject advancing U.S. Magistrate Judge Sarah Netburn's nomination to become a life-tenured district court judge for the full chamber's consideration.
The election year vote marked the first time during Biden's presidency that the panel had ever voted to reject one of his nominees. While some past nominations have stalled out or been blocked before the committee could consider them, the panel had never before voted down one of Biden's judicial nominees.
The panel rejected Netburn even as it voted in favor of advancing eight other nominees, including Embry Kidd, a magistrate judge in Florida for a seat on the Atlanta-based 11th U.S. Circuit Court of Appeals. The Democratic-led Senate has already confirmed 202 of his judicial nominees.
Asked why Ossoff voted no, a spokesperson for the senator in a statement said he applies "rigorous and independent judgment on behalf of his constituents." Netburn and the White House did not respond to requests for comment.
Debate in the hearing focused entirely on Netburn, who for nearly 13 years has served as a magistrate judge in Manhattan, and a decision she issued in 2022 recommending the transfer of a 58-year-old inmate transgender woman to a female facility.
Republican Senator Ted Cruz of Texas said Netburn's decision put women in the prison in danger. The inmate had nearly three decades earlier pleaded guilty to raping a 17-year-old girl and molesting a 9-year-old and served an 18-year prison sentence in Indiana.
"I have to say this is an issue everyone on this committee knows this isn't right," Cruz said. "Every one of us, every one of us would be horrified if a loved one found out she was the cellmate of a six-foot-two man who was a serial rapist."
The inmate at age 51 was diagnosed with gender dysphoria and subsequently began identifying as a woman and receiving treatment to transition her gender, during which time she was sentenced to 15 years in federal prison for distributing child pornography.
In her ruling, Netburn concluded the bureau's refusals to transfer her to a women’s facility to further her gender transition, despite knowing the condition of her physical and mental health, violated the inmate's rights under the U.S. Constitution's Eighth Amendment, which bars cruel and unusual punishments.
Senator Dick Durbin, the panel's Democratic chair from Illinois, said that Netburn had acknowledged the inmate's crimes were "horrific" but that her decision appeared sound, noting her recommendation was later adopted by a district court judge.
"From what I can see, Judge Netburn did the right thing in applying the facts and the law to the case before her to the best of her ability, and the district judge agreed with her analysis," he said.
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