President Donald Trump’s nominee to the Denver-based federal appeals court declined to say who won the 2020 presidential election during his appearance before the U.S. Senate Judiciary Committee on Wednesday, and defended his recent rulings in immigration detention cases.

U.S. District Court Chief Judge Daniel D. Domenico, who Trump appointed during his first term to Colorado’s federal trial court, is seeking to fill a vacancy on the U.S. Court of Appeals for the 10th Circuit, which hears appeals in federal cases arising from Colorado and five neighboring states. The court has seven Democratic and five Republican appointees among its 12 full-time judges, and Domenico’s appointment would not alter that balance.

During Domenico’s Senate hearing, Sen. Richard Blumenthal, D-Conn., asked Domenico who won the 2020 election, which is a routine question he poses to Trump’s judicial nominees. Domenico, like other nominees, did not acknowledge that former President Joe Biden had prevailed.

“I was not told what to say,” Domenico responded when Blumenthal suggested that the White House had coached him on the topic, although Domenico acknowledged he “did engage with the Justice Department.”

When asked who won the popular vote, Domenico responded that “commenting on a matter of political debate like that is inappropriate for a sitting judge and referenced U.S. Supreme Court Justice Ketanji Brown Jackson’s response during her 2022 confirmation process.

At the time, replying to a written question about whether she had “commented, publicly or otherwise, on the results of the 2020 election,” Jackson wrote that it would be inappropriate under the judicial code of conduct to weigh in on “any subject of political debate.”

Domenico further declined to say whether the Jan. 6, 2021, attack on the U.S. Capitol by Trump’s supporters was an “attack on the Capitol,” but he acknowledged that participants “attacked police officers” and engaged in violence and vandalism.

“I’m willing to say that if I were in your courtroom and I gave these kinds of answers to you as a judge on the federal bench,” said Blumenthal, “you would throw me out of your courtroom.”

History on the bench

Domenico hopes to succeed Judge Timothy M. Tymkovich on the 10th Circuit, who is taking a form of semi-retirement known as “senior status.” Domenico was one of Tymkovich’s first clerks after graduating from Georgetown University and the University of Virginia’s law school. He then became Colorado’s solicitor general under Republican Attorney General John Suthers. He argued two cases before the Supreme Court and otherwise represented the state until he entered private practice in 2015.

According to the questionnaire Domenico submitted to the Senate Judiciary Committee for his district court nomination, he was originally interested in succeeding now-Justice Neil M. Gorsuch on the 10th Circuit after Gorsuch joined the Supreme Court in Trump’s first term. The White House, however, chose to nominate Domenico for a district court vacancy.

As a trial judge, Domenico has handled cases of high political significance. He blocked Colorado from enforcing a ban on “abortion reversal” treatment against a Catholic health clinic; required the state to accept a Christian preschool into its universal pre-kindergarten program despite its policies conflicting with the state’s non-discrimination requirements; exempted two Denver-area churches from certain health restrictions early in the COVID-19 pandemic; and permitted a Castle Rock church to circumvent zoning restrictions for faith-based reasons.

One case he handled, involving Colorado’s effort to regulate interest rates charged by out-of-state banks to Colorado residents, is destined for a rare full-court review by the 10th Circuit in August, after a 2-1 decision overturned his preliminary injunction last year.

Recently, he became the only federal judge in Colorado to rule that the government is empowered to detain people in immigration custody without a bond hearing when they have been present in the country for years. Domenico has also waited much longer than his colleagues to issue decisions in detention challenges and has sided with the government more often, a recent Colorado Politics analysis found.

Sen. Dick Durbin, D-Ill., pressed Domenico on his decision-making.

“Overwhelmingly, district court judges, appointed by both presidents Republican and Democrat, have held that mandatory detention of these individuals is illegal,” he said. “You, however, are an outlier, which even you’ve acknowledged in several of your opinions.”

Durbin asked how Domenico could be “a neutral arbiter presiding over challenges to this administration’s action?”

“I have ruled in favor of petitioners in a number of those cases on separate bases. So, I take those cases very seriously,” Domenico responded. “I think the best interpretation (of the government’s detention authority) is the one that I’ve adopted. On other issues, I have, in fact, ruled against the federal government’s position and granted petitions a number of times.”

Endorsements

Sen. Ted Cruz, R-Texas, wrote a statement introducing Domenico, which was read by committee chair Sen. Chuck Grassley, R-Iowa. Cruz knew Domenico when each was the solicitor general of his respective state.

“Even lawyers who disagreed with him on questions of policy respected him as a serious lawyer who approached every case with professionalism, preparation and intellectual honesty,” Cruz wrote. “Since taking the bench as a federal district judge, Judge Domenico has continued to demonstrate the qualities that made him such an effective advocate: diligence, fairness, humility and respect for the proper role of the judiciary.”

The committee received several letters endorsing Domenico’s nomination. Suthers, the former attorney general, wrote that he “always believed (Domenico) was best suited for the appellate bench.”

“His allegiance is to the law and he will conduct himself free of partisan influence. He understands the importance of an independent judiciary to our system of government,” Suthers added.

Two former governors, Republican Bill Owens and Democrat Bill Ritter, wrote that Domenico “earned a reputation across the Colorado legal community for his intellectual rigor, fairness and fidelity to the law. He does not approach cases with an eye toward political outcomes but follows precedent, applies the law as written and respects the proper role of the judiciary in our constitutional system.”

The committee also heard from former law clerks of Tymkovich, Colorado attorneys, six former solicitors general of other states, Domenico’s former law clerks and a former 10th Circuit judge from Utah.

Sen. Michael Bennet, who voted for Domenico’s confirmation to the district court in 2019 and who played a major role in filling Colorado-based judicial vacancies during the Biden administration, submitted a letter to the committee about Domenico’s circuit nomination. Neither Bennet’s office nor the committee could immediately provide Colorado Politics with the letter after the hearing.

Other questions

Domenico also fielded questions about what he learned as a trial judge, about his experience and about his demeanor. Grassley alluded to recent reporting about federal judges who exhibited poor behavior in their chambers and asked Domenico about his thoughts on treating clerks with “dignity and respect.”

“I think that’s perhaps one thing we can thank, in part, Judge Tymkovich for. He was an example of that. … He treated us all with respect and dignity,” Domenico said. “A judge has incredible power over what will happen to them in their careers. There is a real power dynamic there that can be abused. And avoiding that sort of abuse is important to me.”

Sen. Mike Lee, R-Utah, asked Domenico about his views on the role dissenting opinions play in appellate courts.

“A large part of the reason that we judges write written opinions is to explain our position, to serve a public purpose,” he said. “I think there’s that value. It can perhaps lay out reasons why the court should, in the future, reconsider things.”

Finally, Durbin asked whether the due process guarantees of the U.S. Constitution, which apply to any “person,” are limited to citizens. Domenico said the right is “mostly for citizens,” but there are protections for others “under binding current precedent.”