Superior native testifies before U.S. Senate committee

Professor Carl Tobias: “I think his chances of getting committee recommendation are excellent.”

Superior-native Toby Heytens testifies during a hearing held by the U.S. Senate Committee on the Judiciary on Wednesday, July 28, 2021. Heytens was nominated to the bench in the U.S. Court of Appeals in the 4th Circuit by President Biden.

A Superior-native testified Wednesday, July 28, before the U.S. Senate Committee on the Judiciary.

Toby Heytens, a 1993 graduate of Superior Senior High School, was nominated to serve as a judge on the U.S. Court of Appeals in the 4th Circuit by President Joe Biden in June.

The hearing Wednesday was part of the confirmation process.

Sen. Chuck Grassley, R-Iowa, and ranking member of the judiciary committee said Heytens nomination is what he would expect from a Democratic president.

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“In many ways, he reminds me of a Trump nominee,” Grassley said, adding Heytens graduated from a good law school, worked on the Supreme Court and had experience in private practice, academia and public service.

Heytens started his career as a law clerk for Edward R. Becker, a 3rd Circuit U.S. Court of Appeals judge, and later clerked for Justice Ruth Bader Ginsberg. He also worked in private practice and for the U.S. Department of Justice. He is on leave from his job as a law professor at the University of Virginia and currently serves as the solicitor general for the Commonwealth of Virginia.

Carl Tobias, professor and Williams Chair in Law at the University of Richmond in Virginia, watched Wednesday’s hearing. Tobias said he doesn’t know Heytens personally, but he does know of him by reputation.

He said as the state’s lead lawyer, Heytens has won some big, hard-to-win cases.

During the hearing, Grassley expressed his support for the pick.

“If he is confirmed as a judge, I bet I don’t agree with his politics, but I believe he could serve as a moderating force on the 4th Circuit, which is an activist court well outside of the mainstream of federal appeals courts,” Grassley said. “… I’m not sure that we can hope for anything better than a smart, experienced liberal with the misfortune of extensive experience before the increasingly erratic 4th Circuit.”

Overall, Tobias said Heytens did well during a hearing that was shorter than usual for an appellate court judge at 19 minutes long.


“I think there was some genuine praise for the nominee’s abilities that Grassley recognized,” Tobias said. “He didn’t ask very difficult questions of Heytens. Partly, I think he was satisfied from the paper record and was glad to speak with him … Also, I think that maybe Grassley has a sense that this is someone from the Midwest who has midwestern sensitivities and sensibilities and is likely to be a very fine judge.”

Prior to the hearing, Heytens submitted a 55-page summary of his career, service to organizations, published writings, speaking engagements, awards and other accomplishments.

“You have an extraordinary background, very impressive, not only clerking but as a distinguished academic and an accomplished litigator, having argued 10 cases before the United States Supreme Court and serving most recently as Virginia Solicitor General,” said Sen. Richard Blumenthal, D-Connecticut, who stood in for committee chairman, Sen. Richard Durbin, D-Illinois.

During the hearing, Heytens had opportunities to answer questions from senators of both parties about what he’s learned during his career and the role of a judge.

“The role of a judge is to listen to the arguments, analyze the record and apply the law to reach a correct outcome, and I am absolutely committed to doing that if I am fortunate enough to be confirmed.” Heytens said.

Sen. John Kennedy, R-Louisiana, said he attended law school with one of Heytens’ colleagues at the University of Virginia, Paul Stephan, who “tells me that you are a rock star.”

“I’ve been listening to you carefully,” Kennedy said. “You don’t sound to me like you’re much of a politician. I like that.”

Kennedy said he was more concerned with Heytens' well-established intellect than his politics and gave Heytens the opportunity to address “some of the nominees that have appeared before us, I believe, see their role as a federal judge to try to rewrite the constitution and/or our statutes every other Thursday.


“I don’t get the impression that you’re like that,” Kennedy said.

“I think the role of a judge is very important, but I think it is a limited one,” Heytens said. “The judge has the important role to apply the law to the facts that are before him or her.”

Kennedy, who asks hard questions people can’t always answer, seemed satisfied with Heytens, Tobias said.

Tobias said he doesn’t expect Heytens will get a unanimous recommendation from the 22-member judiciary committee, but Heytens may have persuaded some Republican members to vote in favor of his confirmation.

“I have a lot of respect for him,” Tobias said of Heytens. “He also has a lot of qualities that we want to have in a judge. He’s very smart. He’s very careful. He’s thorough. He sees both sides of issues.

“I think his chances of getting committee recommendation are excellent,” Tobias said.

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