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April 04, 2019

Feinstein Decries Disregard of Blue Slips for Ninth Circuit

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today spoke against Judiciary Committee moving forward with two Ninth Circuit nominations without a single blue slip returned for either. Video of her remarks is available here.

            “Today, we have two Ninth Circuit California nominees, Ken Lee and Dan Collins.

            I think I’ve spoken on several occasions about both Lee and Collins. Given that neither nominee has blue slips from Senator Harris or myself, I had hoped we would never come to a point where Mr. Lee and Mr. Collins received a vote in the committee. But unfortunately, their nominations are proceeding.

            I want to start today by returning to a topic that I’ve had to address too many times since President Trump took office – and that is the majority’s decision to no longer honor the blue slips of home-state Democratic senators. I guess I do this in hope that if you drop water on sand long enough, it might blow away, or move away.

            We have seen in the last two-plus years an unmistakable, steady escalation of a kind of majority disregard for what had been norms and traditions of the committee.

            For instance, we have seen an increasing number of hearings with two circuit [court] nominees held over the objection of the minority. Stacking hearings in this way makes it difficult, if not impossible, for senators on this committee to thoroughly vet those nominated for lifetime tenure. And that’s even more problematic given the administration’s apparent failure to do its own adequate vetting.

            We have also seen unilateral changes from the majority in the standards applied to clearing FBI background investigations and a willingness to move forward with nominations even before the American Bar [Association] has had an opportunity to rate nominees.

            But most troubling – and, at least as I see it, most damaging to this committee and to this institution – is the majority’s needless disregard for blue slips.

            I shared a statistic at last week’s markup that I’m going to repeat today in hopes that it percolate inwards.

            Before President Trump took office, the blue slip had been a Senate practice for a century. And during the past 100 years, before this presidency, the Senate confirmed only five judges with only one blue slip, and the last one was 1989 – it has never confirmed a judge without two blue slips.

            Further, no Democratic majority has ever held a hearing or confirmed a judicial nominee over the objection of a Republican senator who refused to return a blue slip. It’s never happened.

            Since President Trump took office, Republicans have held hearings for 12 circuit court nominees and voted to confirm seven over the objection of home-state Democrats.

            Now, with Mr. Lee and Mr. Collins eligible for a vote today, that number climbs to nine.

            It’s bad enough that the majority has refused to honor blue slips for so many of my colleagues, including several senators on this committee.

            But with a hearing on these two Ninth Circuit nominees – and now a committee vote on both – we are seeing a new low. I have said this before, but it needs to be repeated – never before has a judicial nominee received a hearing over the objection of the committee’s ranking member. Never.

            I think this breakdown in Senate traditions is really harmful. And of course, one thing we’ve learned, what goes around, comes around.

            As I have highlighted before, Democratic Senators have been willing to work with the White House to find consensus picks for the circuit courts. That was true of Senators Durbin and Duckworth when it came time to fill Seventh Circuit vacancies. It was true of Senators Hirono and Schatz for a Ninth Circuit Hawaii seat. It has been true of numerous Democrats.

            And it’s no less true for Senator Harris and myself. But sadly, that willingness to work with this administration has not been met and, in particular, I think, all senators of this committee deserve this kind of comity, but it just isn’t there..

            At last week’s markup, I briefly discussed a claim made by a number of my Republican colleagues that the 2013 rules change has led us to where we are today. I think it’s important to set the record straight, for this is not true.

            When then-Majority Leader Harry Reid changed the threshold to invoke cloture, he did so only after five years of record Republican obstruction to President Obama’s nominees.

            On average, President Obama’s nominees to the circuit courts waited 98 days from a committee vote to a floor vote. Compare that to President Trump’s circuit court nominees, who have only waited an average of 26 days.

            But perhaps, I think more importantly, even after the cloture threshold was lowered, the Democratic chairman of this committee —Senator Leahy – continued to honor blue slips.

            The rules change was a reasonable response to a problematic nominations impasse. But that response never undermined the core prerogative that the blue slip affords to home-state senators to help select the judges – district and circuit – who will sit in their states for a lifetime.

            Finally, Mr. Chairman, I want to address the records of Mr. Collins and Mr. Lee.

            I use an in-state screening commission. It’s bipartisan and it vets potential nominees to California district and Ninth Circuit seats. As I noted when this committee held a hearing on these two nominees, my in-state bipartisan commission raised concerns about Mr. Collins’s temperament, rigidity and history of taking positions in litigation that aim to overturn precedent and push legal boundaries.

            This concerns me as his role is to be an impartial arbiter, not an advocate, not someone who has an agenda. It also concerns me because of what it says about his respect for precedent.

            Apart from these concerns raised by my in-state commission, I also believe that Mr. Collins’s record on women’s reproductive rights, executive power, civil liberties and criminal justice matters puts him far outside the judicial mainstream.

            For example, Mr. Collins was a strong advocate for the Bush administration’s use of military commissions to try enemy combatants held at Guantanamo Bay. He even went so far as to argue that the president’s authority as commander in chief allowed him to bypass Congress and create these commissions without congressional approval.

            He also wrote a law review piece in which he argued that Miranda v. Arizona – a longstanding Supreme Court precedent that protects the rights of criminal defendants – should be overturned. Mr. Collins advocated that Miranda should be “jettisoned ... in favor of the constitutional text.”

            For the last decade, he also defended numerous chemical and energy companies in lawsuits brought by homeowners, tribes and local governments arguing that these companies contributed to climate change and its effects – such as increasing the severity of storms and causing sea levels to rise.

            In several of these lawsuits, Mr. Collins cast doubt on the fact that climate change is even real. For example, in a case representing Shell Oil, Mr. Collins wrote “climate change allegedly results from the aggregate effects of greenhouse gas emissions from billions of sources around the world accumulating in the global atmosphere over the course of centuries, and thus it cannot be attributed to” energy companies.

            At his hearing, Mr. Collins claimed that he wrote “allegedly” because of the “procedural posture” of the case. But in questions for the record, he refused to acknowledge that climate change is real and that human activity contributes to it.

            I am also troubled that at his hearing, Mr. Collins was willing to answer questions from Republicans on his personal views, but not answer similar questions from Democrats. For instance, when asked how he “feel[s] about the First Step Act,” Mr. Collins said: “I think that the First Step Act ... appeared to me to be a balanced approach to reform some of the sentencing provisions which seemed unduly harsh.”

            But when asked by Senator Blumenthal as to whether he believed Brown v. Board of Education was correctly decided, Mr. Collins refused to answer.

            Nominees should not be able to answer Republican questions and evade Democratic ones. The same standard must govern responses to questions asked by both parties.        

            I cannot support this nominee. I believe he’s outside the legal mainstream

            Mr. Lee likewise has a troubling record, and his failure to disclose problematic writings to my and Senator Harris’s in-state commissions – and to this committee – raises concerns about his candor and judgment.

            Mr. Lee was a vocal critic of affirmative action while at Cornell University, writing, “I believe that portraying oneself as a victim (and asking for preferential treatment) is demeaning and counterproductive.”

            Mr. Lee has not backed away from his positions against affirmative action. In a 2003 piece – written while he was a practicing attorney – Mr. Lee criticized the Supreme Court’s opinion in the Bakke case, which upheld the use of race as one of several criteria to be considered in college admissions. I think we’re all familiar with it. Mr. Lee wrote that “[t]he Supreme Court can no longer hide behind the wishful thinking of Bakke,” which he said “was based on the naïve assumption that universities would consider race merely as a tie-breaker.”

            This led the Congressional Black Caucus to write a letter opposing Mr. Lee’s nomination. And that letter states: “While many of [Mr. Lee’s] most disturbing writings have come from when he was in college and law school, there is every indication that these views were well-settled and carried throughout his career.”

            Reasonable minds can certainly differ as to the merits, but I think the comment he made about undocumented immigrants [is troubling]: “By describing illegal immigrants as ‘hard-working men and women’ who are pursuing ‘better lives,’ [President Bush] blurs the distinction between illegals and those who came to America following the rules,” that’s his statement.

            I will vote no on the nominations of Mr. Collins and Mr. Lee. And I hope that all of those who value this institution will do the same.”

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