Kennedy to Biden Nominee Eumi Lee: 'Oh, Now, All of a Sudden, You Can't Answer It' (September 6, 2023)

Sen. John Kennedy, R-La., had a simple question for President Joe Biden’s judicial nominee Eumi Lee: Should a male prisoner be allowed to claim he is transgender to get assigned to a women’s prison? When Lee said the issue was being litigated and might come before her, Kennedy pounced. “Oh, now, all of a sudden, you can’t answer it. You answered it in your law review article,” he said [1].

The video above shows the exchange from the Senate Judiciary Committee’s Sept. 6, 2023, confirmation hearing, where Lee, a California state judge, was up for a seat on the federal bench in the Northern District of California. Quotes are from the official hearing record, Senate Hearing 118-29, Part 9 [1].

”Do You Think Biological Male Prisoners Should Be Placed” in Women’s Prisons?

Sen. Mike Lee, R-Utah, raised the article first. In a piece in the Hastings Race and Poverty Law Journal, he said, the nominee had criticized the prison system because it “relies heavily on a dichotomous sex-based means of classification,” meaning “prisoners are classified by their biological attributes, or attributes rather than their gender identification” [1].

“Do you think biological male prisoners should be placed in female women’s—in prisons set aside for women?” he asked [1].

Judge Lee said the piece summarized a panel she had moderated 13 or 14 years earlier, and that the question of prison designations involved “live issues which are happening across the country in our courts” [1].

”Oh, Now, All of a Sudden, You Can’t Answer It”

Kennedy read her the article’s conclusion, which said that transgender inmates and other groups “traditionally has been marginalized by American society” and “are often further distanced from and marginalized by society upon incarceration.” “Did you say that?” he asked. “That’s what was written,” she answered [1].

Then he asked it straight: “Do you think that a male prisoner convicted in a court of law on a final judgment, should be allowed to claim that he is transgender in order to be assigned to a female prison?” [1]

“Senator, as discussed earlier, the issue of assignment in facilities and such is one which is being actively litigated in California and maybe come before me, if I were to be confirmed,” Judge Lee said [1].

That is when Kennedy cut in. “You were for it. But now you can’t answer it. Is that your testimony?” he asked. She said the article was more than 13 years old and that as a judge her duty was to rule “fully, faithfully, and impartially.” Kennedy pressed again: “The truth is, you believe that a male prisoner should be able to allow, at the sentencing phase, to claim that he is transgender in order to be assigned to a female prison. Now, you believe that. Don’t you?” [1]

“A Desire to Eradicate LGBT Identities”

Kennedy turned to the law journal at Georgetown that Lee had helped found. “One of the first articles was entitled—that you picked, was entitled, quote, ‘The Politics of Eradication and Future of LGBT Rights.’ And in that article, you accused Repub—or, the article you chose, accused Republicans of being influenced by, quote, ‘a desire to eradicate LGBT identities.’ Is that accurate?” he asked [1].

“I do not recall. I do not know whether or not I wrote—I edited that,” she said, explaining that she was an articles editor for the first edition [1].

He read another title from the journal: “Gender is Fake: The Ongoing Need for an Equal Rights Amendment.” Then he gave his verdict: “I don’t think you’ve been honest with this Committee. Because I’ve read your writings, and I’d respect you a lot more if you stepped up to the plate and said, ‘This is what I believe’” [1].

”Not Salvation”

Committee Chairman Dick Durbin, D-Ill., stepped in. “I might say to the Senator from Louisiana, my goal is to run the Committee and not salvation. I believe the judge can speak for herself,” he said [1].

Democratic Sen. Alex Padilla of California then defended the nominee, saying the paper “did not actually take any stance on any of these efforts.” Judge Lee agreed: “That is correct, Senator” [1].

By the Numbers

13 years: how old Judge Lee said the article was [1].
2: Republican senators who pressed her on housing male inmates in women’s prisons, Kennedy and Mike Lee [1].
50-49: the Senate vote confirming her in 2024 [2].
March 20, 2024: the date she was confirmed, after being renominated in January [2].

What Happened Next

She was confirmed, barely. After Biden renominated her on Jan. 8, 2024, the Senate confirmed Lee to the U.S. District Court for the Northern District of California on March 20, 2024, by a 50-49 roll call vote, according to the Federal Judicial Center [2].

Trump settled the question. On Jan. 20, 2025, his first day back in office, President Donald Trump signed an executive order directing that “the Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s detention centers” [3].

For another of Kennedy’s quizzes of a Biden judicial nominee, see HYGO News’ page on Judge James Simmons.