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Judiciary hearing: Nominee Mike Drescher defends litigation choices in immigration-related cases
Summary
At a Jan. 13 Senate Judiciary Committee session, nominee Mike Drescher said he did not defend visa revocations and framed his work as facilitating judicial review in habeas cases involving individuals identified in the record as Ozturk and Badawi; senators pressed him on prosecutorial discretion, possible resignation and his judicial philosophy.
Mike Drescher, the nominee and former acting U.S. attorney, told the Senate Judiciary Committee during a Jan. 13 confirmation hearing that his litigation in high-profile immigration habeas cases was aimed at ensuring judicial review, not defending the State Department's decision to revoke visas.
"I did not prosecute them. I did not prosecute them," Drescher said in response to senators who asked whether his office had sought to punish speech or otherwise target petitioners. He acknowledged the court file included a State Department memo that referenced an op-ed as a material factor in a visa revocation and said he was aware of that memo.
Drescher described prosecutorial discretion as a multistage concept that properly governs criminal charging, case management and sentencing choices, and said civil litigation defending the government requires distinct ethical judgments. "The system cannot work without lawyers on both sides," he told the committee, adding that he sought to present serious, ethical arguments so a judge could resolve unsettled statutory and jurisdictional issues.
Several senators pressed him on whether he could have declined to participate in litigation or resigned on moral grounds. Drescher said the revocations were actions taken by the State Department and Department of Homeland Security and that his office did not control those decisions. He testified that resigning would not have changed the petitioners' status or the progress of the lawsuits and could have delayed proceedings by forcing a replacement counsel to step in.
Committee members also questioned whether his recent federal-service background left him less experienced with state-court practice, given the nominee is being considered for a state high court position. Drescher said he had substantial state-law experience in federal civil litigation, had taken state-law appeals and had participated in state-agency proceedings earlier in his career.
On broader questions about the role of the judiciary, Drescher said a state supreme court should decide cases on their merits with an eye toward protecting individual liberties, recognize systemic imperfections and, where appropriate, "speak the truth to what's going on." He said he would advocate for measures such as implicit-bias review if confirmed.
The committee chair left the record open for about a week, inviting witness testimony from both critics and supporters and saying documents submitted would be forwarded to the nominee and he would be given an opportunity to respond. The hearing resumed after a short break.
