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Senators Debate Marijuana Use By Judges

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How many times should judicial nominees be allowed to consume marijuana before they are confirmed to the federal bench?

That’s a question United States senators spent roughly half an hour debating on Thursday.

“Over time, there’s been an evolving attitude in our society towards marijuana,” Senate Judiciary Committee Chairman Charles Grassley (R-IA) said. “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.”

The statement is significant, coming from Grassley, long one of Congress’s most vocal opponents of cannabis law reform. He has, for example, blocked bipartisan medical marijuana bills from even getting a hearing in his committee.

The Judiciary panel, which held a business meeting on Thursday, is preparing to pare back a long-held standard on prior marijuana use by judicial nominees.

Previously, any use of marijuana after passing a bar exam would disqualify a nominee under the committee’s rules, though waivers have sometimes been granted, seemingly depending on which party controls the Senate and the White House.

“I thought that standard and that unwritten rule in the committee was unfair, unwise” Sen. Dick Durbin (D-IL) said. “I saw…how good people because of a mistake they made in a young part of their lives were disqualified from a lifetime of federal service on the bench. I just think it was wrong.”

Durbin recounted previous cases where President Obama’s nominees were blocked under the rule by objecting GOP senators.

“I know of some who would have been top-notch federal judges [and] were disqualified and stopped by Republican senators,” he said.

Now, he pointed out, Republicans seem to be in favor of a “more permissive standard for President Trump’s judicial nominees… I’m not opposed 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.”

Sen. Patrick Leahy (D-VT) shared the concern.

“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,” he said.

Grassley replied that he hopes waivers aren’t “related to who’s president, but I don’t blame you for drawing that conclusion.”

Sen. Dianne Feinstein (D-CA) who, along with Grassley has been one of Congress’s most ardent drug warriors, said she too supports easing committee’s policy.

“The rule has had real consequences,” she said. “For my part, and I was opposed to legalization of marijuana in California, I believe that the rule should change.”

(As an aside, Feinstein incorrectly stated several times during the meeting that 29 states have legalized marijuana for recreational purposes. Grassley attempted to correct her by rightly pointing out that that’s the number of states that allow medical cannabis use, but added further confusion by saying only two states have legalized recreational marijuana. The correct number is eight.)

The committee hasn’t finalized the new standard yet, but the public discussion by its members provided an indication of where they may end up.

Durbin asked Grassley whether they would set a “reasonableness standard that has some flexibility or are we going to set a numeric standard?”

The chairman replied that he’s “aware of the ranking member [Feinstein] having a view, that it ought to be a very hard rule, and I probably have taken a rule of a reasonable approach.”

Feinstein seemed somewhat taken aback by the comment, and Grassley then told her, “I thought your rule was a little harder than my rule.”

After an interlude from Sen. Patrick Leahy (D-VT) about using “discretion” in enforcing rules, Feinstein said, “My understanding is that we have agreement that the post-bar reasonable standard is one to two uses [of marijuana].”

Grassley confirmed, “That is so.”

It is unclear when the committee will finalize and formally announce the new policy.

In 1987, Supreme Court nominee Douglas Ginsberg was forced to withdraw his name from consideration after it was revealed that he had smoked marijuana.

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Tom Angell is the editor of Marijuana Moment. A 15-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he serves as chairman of the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

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