Trump Appeals Court Nominee Bennett Went 2-0 at Supreme Court

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By Patrick L. Gregory

Mark J. Bennett is a Trump federal appeals court nominee with an impressive appellate record: He’s won two unanimous decisions in cases he argued at the U.S. Supreme Court.

The nomination of Bennett, whose confirmation hearing was April 11, is a rare example where President Donald Trump and Senate Democrats appear to have found common ground.

Bennett, who served as Hawaii’s attorney general from 2003 to 2010, received praise from both of the state’s democratic senators upon his nomination to the U.S. Court of Appeals for the Ninth Circuit. Some of Trump’s judicial nominees have been criticized for lacking experience or not having the support of their state’s senators.

Bennett also served twice as Hawaii’s acting governor.

He’s “well-qualified,” with “extensive experience practicing law in the public and private sectors in Hawaii and at the federal level,” Sen. Mazie Hirono (D-Haw.) said in a joint press release with Sen. Brian Schatz (D-Haw.) announcing his Feb. 12 nomination.

Bennett declined to comment.


Bennett successfully argued that the U.S. Supreme Court needed to reconsider a test often used in regulatory takings cases in 2005, in Lingle v. Chevron U.S.A. Inc.

It was a case in which he was sued in his official capacity as Hawaii’s attorney general, along with the state’s governor.

The dispute involved a Hawaii law limiting how much rent oil companies could charge to those who leased their gas stations.

Chevron USA Inc. sued, arguing that it was an unconstitutional taking.

The lower courts relied on a 1980 U.S. Supreme Court decision which said government regulation of private property constitutes a taking if it doesn’t “substantially advance legitimate state interests,” Agins v. City of Tiburon.

Bennett argued that this language had “taken on a life of its own” and that courts were having “a great deal of difficulty” trying to determine what it meant.

The proper test would examine the economic burden of the regulation to determine if a taking occurred, he argued.

The high court agreed. “Today we correct course,” it said in a unanimous decision by Justice Sandra Day O’Connor.

“We hold that the ‘substantially advances’ formula is not a valid takings test,” the court said, overruling Agins.

Another SCOTUS Win

A controversy involving a congressional apology to Hawaii gave Bennett another unanimous win at the high court in 2009, in Hawaii v. Office of Hawaiian Affairs.

Congress’s 1993 Apology Resolution apologized for the U.S.'s role in overthrowing the Hawaiian monarchy, the court said.

The resolution said nothing in it was intended to settle claims against the U.S.

Relying on the resolution, the Hawaii Supreme Court enjoined the state from transferring a certain piece of land to third parties until it could be determined whether any native Hawaiians had valid claims to the land.

But the resolution was “a simple apology, and no more,” Bennett argued before the high court.

The land passed with “perfect title” to Hawaii when it was admitted to the U.S. in 1959, he argued.

The Supreme Court ruled in Hawaii’s favor, in a unanimous decision by Justice Samuel A. Alito Jr.

The resolution “would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after” it became a state, the court said.

Loss, Residency Requirement

Bennett defended Hawaii’s in-state residency requirement for applying for state or county employment, but a district court ruled against him in 2006, in Walsh v. City & County of Honolulu.

Massachusetts resident Lydia Hill alleged that she hadn’t completed an employment application because it was clear she would be rejected based on her residency status, the U.S. District Court for the District of Hawaii said in a decision by Judge David Alan Ezra.

She challenged the requirement in a suit that included Bennett in his capacity as attorney general as a defendant, along with the city and county of Honolulu, the court said.

Hill argued that she couldn’t bear the financial burden of moving to Hawaii without knowing if she would be employed, the court said.

Bennett and the city argued that the requirement furthered a legitimate goal of assuring that job applicants had a commitment to the state and had “knowledge of local problems,” the court said.

The requirement violated the U.S. Constitution’s right to interstate migration, the court held.

It was a thinly veiled attempt to discourage migration to Hawaii by targeting “the natural aversion of people to relocate in the absence of a firm job offer,” the court said.

‘Yankee Day’ Declaration

Bennett was Hawaii’s acting governor for several days in 2004 and 2008.

He took over while the state’s governor and lieutenant governor were on the mainland, on both occasions.

Bennett took advantage of his first stint as acting governor by declaring Sept. 1 as “New York Yankee Day” in honor of his favorite baseball team.

Quiz Show Winner

Bennett’s confirmation hearing highlighted some of his other personal interests.

He runs marathons, “is a formidable bridge player,” and once appeared on the “Jeopardy!” game show, Schatz noted.

Bennett said he won on one episode of the show and lost on another.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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