Sen. Jon Ossoff (D-Ga.) voted with Republicans on Thursday to block the nomination of Judge Sarah Netburn, who garnered significant controversy after ruling a transgender woman convicted of sex crimes should be transferred to a federal women’s prison.
It marked a rare instance of a Democrat breaking with the majority to bottle up one of President Biden’s judicial nominees in committee.
Netburn came under sharp criticism from Republican senators after she told Sen. Lindsey Graham (R-S.C.), the ranking member of the Judiciary Committee, that she didn’t know whether it is possible to determine a person’s sex by analyzing their chromosomes.
When asked about determining sex by chromosomal analysis, the nominee told Graham, “I have never studied biology and therefore I am unqualified to answer this question.”
Carl Tobias, the Williams Chair in Law at the University of Richmond Law School, said Ossoff’s vote is the only “no” vote cast against a judicial nominee by Democratic senator on the Judiciary Committee since Biden became president.
“I have watched all of the discussions and votes in every Exec. Business Mtg. held by the [Senate Judiciary Committee] in Pres. Biden’s tenure, and I believe that this is the only no vote cast by a Democrat on Biden’s 200+ judicial nominees,” he said.
Republicans criticized Netburn’s handling of the transfer request of July Justine Shelby, who was sentenced to a 15-year term at the Otisville Federal Correctional Institution, a men’s prison.
Netburn, a magistrate judge, recommended that Shelby, who began publicly identifying as a woman at the age of 51, be transferred to a federal women’s prison, despite the objections of the Bureau of Prisons.
“Putting political ideology over justice and reality, magistrate Judge Netburn recommended that Shelby be transferred immediately to a woman’s facility,” Sen. Ted Cruz (R-Texas) said before the vote.
“This judge is ruling the Constitution requires that biological men who wake up one day and say I’m a woman have to be housed with female prisoners. This judge also ruled in effect that female prisoners have no rights,” Cruz added.
Judiciary Committee Chairman Dick Durbin (D-Ill.) noted at the hearing that Netburn as a magistrate judge only had the authority to recommend a transfer to a women’s prison but the final decision was made by a district court judge.
“I think that Chair Durbin was accurate when he stated that the District Judge, not nominee Sarah Netburn, had the final authority to make the ruling in the case that GOP senators criticized,” Tobias said.
Updated: 1:10 p.m.