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Republican Rule Change Allows Marijuana Use By Judge Nominees



For the past several decades, the U.S. Senate has blocked judicial nominees who have used marijuana after taking the bar exam from being confirmed. But now, under a rule change made quietly by Republicans, those restrictions are being scaled back. And Democrats, who say they have no problem in principle with the move, are criticizing their GOP counterparts for reducing judicial cannabis discrimination only now that Republicans control the Senate and the White House.

“Since at least the Clinton administration, Judiciary Committee Republicans did not clear background investigations of judicial nominees who reported to the FBI that they had ever used marijuana after taking the bar exam,” Democrats on the Judiciary Committee wrote in a new report. “Because of this Republican policy, a number of judicial nominees were either blocked or never nominated in the first place.”

But under a new policy enacted by Chairman Chuck Grassley (R-IA), candidates to be judges can have consumed marijuana up to two times after taking the bar exam if the use was at least five years prior to the date of their nomination to the federal bench.

“While Democrats did not object to the policy change on the merits,” the minority party’s new report says, “Republicans only made this change because of a political change to Republican control of the presidency and Senate.”

The move was the subject of a debate during a Judiciary Committee meeting last November.

“Over time, there’s been an evolving attitude in our society towards marijuana,” Grassley said at the time, defending the rule change. “And I suppose as I’ve looked at it over a period of time in which I’ve had this absolute prohibition attitude that I’ve demonstrated maybe not in public but in private about it, I’ve come to the conclusion that sometime down the road — and we may be down the road there now — that we, if [marijuana use is] the sole judgement of whether somebody ought to have a judgeship or not, or maybe any other position, we may not be able to find people to fill those positions.”

Senators Debate Marijuana Use By Judges

Democrats argued that the timing of the change seemed too convenient for Republicans.

“I know of some who would have been top-notch federal judges [and] were disqualified and stopped by Republican senators,” Sen. Dick Durbin (D-IL) said, referring to Obama-era nominees. “I am not opposed to a different standard, but we should not have a double standard for nominees who are presented under a Democratic president and nominees that are presented under a Republican president. And we need to be transparent about what we are doing and why we are doing it.”

Sen. Patrick Leahy (D-VT) agreed, saying, “There’s seems to be one standard with a Republican administration [and] a different one with a Democratic administration. It’s tougher on the Democrats. I’m just saying, let’s have one standard. It may evolve.”

Democrats included their complaints about the marijuana use rule change as part of a larger 61-page report they issued on Thursday criticizing what they see as Republican efforts to “stack” federal courts.

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Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy.


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