November 02, 2017

Feinstein Statement on Judicial Nominees

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today released the following statement on President Trump’s efforts to remake federal courts with controversial nominees:

"Last Thursday, Leader McConnell filed cloture on four circuit court nominees—including two nominees who had been voted out of the Judiciary Committee that very morning.

Voting on four controversial circuit court nominees in one week is highly unusual, as is voting on nominees just days after they’ve moved out of committee.

Senators who aren’t on the Judiciary Committee deserve time to consider nominees, review their backgrounds and make an informed decision for their vote.

But that’s not what’s happening in the Senate this week. Instead, Republican Senate leadership is pushing President Trump’s judges through as quickly as possible.

Jamming through as many controversial judges as possible in as short a time as possible—to lifetime appointments, no less—is irresponsible. I cannot remember a time when we had cloture votes on four circuit court nominees in one week.

It’s important to understand the context in which we find ourselves.

After failing to repeal the Affordable Care Act, and with the Republican tax reform plan facing opposition within his own party, President Trump has turned more and more to executive orders to influence policy.

But as we’ve seen, move after move has run into opposition in federal courts. So it’s really no surprise that Republicans are trying to stack those courts with ideological judges whom they hope and expect will uphold the president’s harmful policies.

Consider how many Trump actions have or will see time in the courtroom, and you begin to understand why Republicans are rushing to fill these vacancies—after allowing countless vacancies to remain unfilled at the end of the last Administration.

In each of the following cases, the President and Senate Republicans seem to hope that the outcome will be different with a transformed judiciary.

The president’s Muslim travel ban has been struck down by multiple courts who ruled that the ban is based on religion and suspending the refugee program is discriminatory, with no basis in fact. The President went so far as to personally insult some of the judges who heard arguments on the travel ban.

The president’s decision to end the DACA program is also likely to find its way into the courtroom. Beginning on March 5, 2018, it’s estimated that around 1,000 DACA recipients per day will lose their protection from deportation. By ending the program and thrusting 690,000 young people into legal limbo, the president ensured that lawsuits would be filed. And he certainly is hopeful that conservative judges are on the stand to hear the cases.

We’ve also seen the Trump administration make moves to restrict women’s access to health care. One woman had to go to federal court twice to challenge the government’s efforts to restrict her access to reproductive care. The full D.C. Circuit chided the attempt to “bulldoze over constitutional lines” and deny this 17-year-old young woman court-approved reproductive care. Republicans tried to block three of President Obama’s nominees to this same court, and now are rushing to fill its one vacancy as quickly as possible—that’s not a coincidence.

President Trump’s voter fraud commission will also certainly end up in legal battles. At least eight lawsuits have been filed against the president’s Presidential Commission on Election Integrity, created to investigate false claims that 3 million people voted illegally last year. It’s possible the commission has already violated federal laws with regard to how it handled sensitive information. This is already the subject of ongoing litigation.

These are just a handful of Trump actions that will see time in court. They highlight not only what’s at stake, but also why the president is so anxious to hurry judges that he has selected on the bench.

I would add that Republicans are now rushing to fill judicial vacancies for this President after spending years blocking President Obama from filling many of these same vacancies. It actually is the most egregious effort I have ever seen.

This record of obstruction dates back to 2001 during the Clinton Administration. Senate Republicans used secret holds on nominees to prevent judicial nominees from receiving Committee hearings or floor votes.  This resulted in Republicans “pocket filibustering” nearly 70 of President Clinton’s circuit and district court nominees, preventing their confirmation. As discussed by Senator Leahy when he served as Chair and Ranking Member of the Committee, Republicans would block nominees through “pocket filibustering” which meant they would deny nominees hearings or up-or-down votes in Committee. This is a chart that lists those nominees.

In the first five years of the Obama Administration, Republicans forced Obama’s district court nominees to wait nearly three times as long and circuit court nominees nearly twice as long as Bush nominees for confirmation votes. And during the final two years of his presidency, Senate Republicans engaged in a historic blockade of judicial nominees.

And it wasn’t just the unprecedented decision to block Chief Judge Merrick Garland for the Supreme Court.

During the final two years of President Obama’s administration, only 22 judicial nominees were confirmed—and just nine in the final year.

 That’s the lowest number of judges confirmed in a two-year Congress since President Truman was in office. Contrast this with the last two years of the Bush Administration when Democrats were in the Senate majority and still confirmed 68 of his nominees.

In the last two years under President Obama, there were 53 Article III judicial nominees pending in the Senate at the end of 2016. That’s 53 nominees who Republicans either refused to hold hearings on or refused to confirm once they were on the floor.

In fact, of those 53 nominees, 25 had been voted out of Committee and were waiting for confirmation on the Senate floor. All they needed was for the Republican leadership to bring them up for a floor vote.

And 23 of those 25 nominees had been unanimously voice voted out of committee with overwhelming bipartisan support. Still Republicans refused to confirm them.

And since my colleagues have spent some time noting that three of the circuit court nominees we’re considering this week are women, I’d like to note that half of the nominees Republicans blocked from becoming circuit and district court judges last year were women.

Here’s the point: Republican leadership wanted those seats – including the Supreme Court—left open in the hopes that a Republican would be elected president and pick new judges. They ignored the needs of country and the judiciary for their own political wants.

Two of the nominees we’re considering this week—Amy Coney Barrett and Stephanos Bibas—are filling seats that President Obama had nominated African-American women to. Neither were confirmed because Republican home-state senators didn’t return blue slips. And that’s a fact.

Judge John Bush, who now sits on the Court of Appeals for the Sixth Circuit, was likewise confirmed only because Leader McConnell refused to return a blue slip on a well-qualified woman, Kentucky Supreme Court Justice Lisabeth Tabor Hughes, whom President Obama had nominated last year.

Republicans exploited the blue slip process during the Obama presidency. But today, we hear constant rumors that Republicans want to do away with the process—another tool allowing them to ram through more judges.

It’s worth noting that even though Democrats had sincere, legitimate concerns about the writings of John Bush—which included him equating slavery and abortion—his nomination was rushed through by Leader McConnell.

John Bush was confirmed just 73 days after he was nominated. In fact, President Trump’s first four circuit court nominees waited just 84 days, on average, from nomination until confirmation. By contrast, President Obama’s first four circuit court nominees waited an average of 213 days. That’s nearly three times longer.

The hypocrisy we’re seeing on display is stunning. With that in mind, I want to say a few words about the nominees themselves.

Our nation’s appellate courts are the final deciders of the vast majority of cases. So a nominee’s experience matters a great deal to me. However, the first nominee we voted on, Professor Amy Barrett, who has now been confirmed to the Seventh Circuit, had very limited experience.

She did not have any experience as a judge and she only worked on one trial before becoming a professor.

Practically speaking, this meant the only record on which we could judge her was her academic writings. In those writings, I was especially troubled by her position that Supreme Court precedents can simply be set aside when a justice disagrees with them.

The National Women’s Law Center wrote that these writings “raise serious concerns” about how Professor Barrett, if confirmed, “would interpret, apply, and follow precedent, including Supreme Court precedent.” In fact, they point out that Professor Barrett’s “prior writings consistently suggest that she believes precedents like Roe and Casey should be considered weaker and are susceptible to challenge….”

That is why I was unable to support Professor Barrett’s nomination.

The second nominee we voted on was Justice Joan Larsen for the Sixth Circuit. Justice Larsen, who currently serves on the Michigan Supreme Court, has deeply troubling views on presidential powers.

In fact, she advocated for the Bush administration’s view that the President had the authority to disregard a law that Congress had just passed, which prohibited the U.S. Government from using torture.

So it is no surprise that President Trump, who has shown contempt for the other coequal branches of government, nominated Justice Larsen. And her views are undoubtedly part of why the President included Justice Larsen on his short list of Supreme Court nominees last year.

President Trump repeatedly made clear that he was only considering nominees for the Supreme Court who passed his litmus tests—including to overturn Roe v. Wade. Recall President Trump’s interview with 60 Minutes immediately after he won the election. He said, “I’m pro-life. And the judges are going to be pro-life.”

He added that his judges were going to be “very pro-Second Amendment.”

We heard from 30 groups who were concerned about Justice Larsen’s nomination, and several highlighted the danger of this litmus test.

As Lambda Legal wrote, “A decision by this Committee to advance her nomination will be rightfully understood as not only a threat to Roe but also to the LGBT cases that were built upon Roe’s foundation.”

I opposed Justice Larsen’s nomination.

The third nominee we are considering is Justice Allison Eid for the Tenth Circuit, was also included on President Trump’s short list of Supreme Court nominees last year.

Since 2006, Justice Eid has served on the Colorado Supreme Court. A review of her opinions shows why The Denver Post wrote in September before her hearing: “On the state’s high court, Eid has earned a reputation as one of its most conservative members.” Here are just a couple of examples.

In 2014, the Colorado Supreme Court held that a worker who fell down a flight of stairs at her workplace—and suffered multiple aneurysms as a result—deserved to be compensated under the state’s workplace compensation law. Justice Eid dissented, arguing that the employee did not deserve any compensation for her injuries. (City of Brighton v. Rodriguez)

In 2012, Justice Eid was the lone dissenting vote when the Colorado Supreme Court upheld a new redistricting map that was drawn to protect residents’ constitutional right under the “one person, one vote” standard. The old map had unequal populations and was redone with the extensive work of a trial court.

On appeal, Justice Eid was the only dissenting judge, and she argued to throw out the trial court’s work because she believed it had not given “adequate weight” to one entirely optional factor.

Justice Eid’s record has also led a number of organizations to oppose her nomination, including the AFL-CIO, the Leadership Conference on Civil and Human Rights (LCCR), and Planned Parenthood.

I opposed Justice Eid’s nomination.

The final nominee we will vote on is Professor Stephanos Bibas for the Third Circuit. Like Professor Barrett, much of his legal career has been spent in academia, so our job in reviewing his record is to carefully consider his writings.

Professor Bibas’ writings have focused on criminal law, and he has pushed forward controversial ideas about punishment. His most troubling proposals were set out in a paper he wrote in 2009.

In it, he argued that for a wide variety of crimes, “the default punishment should be non-disfiguring corporal punishment, such as electric shocks.”

Bibas also suggested “putting offenders in the stocks or pillory, where they would sit or stand for hours bent in uncomfortable positions. Bystanders and victims could jeer and pelt them with rotten eggs and tomatoes (but not rocks).”

For more severe crimes, he advocated “multiple calibrated electroshocks or taser shots,” with medical personnel on hand to ensure “that the offender’s health could bear it.”

These views are shocking and outside of the mainstream. A few years before Professor Bibas wrote his article, this body had already debated and passed the Detainee Treatment Act in 2005, which prohibited “cruel” and “degrading” punishment of prisoners.

I appreciate that Professor Bibas testified to the Judiciary Committee that he now understands that his views on use of corporal punishment for prisoners are, in his words, “wrong and deeply offensive.”

But he came to this conclusion only after he repeatedly made public presentations on his paper, including one to a Federalist Society Chapter entitled, “Corporal Punishment, Not Imprisonment: The Shocking Case for Hurting Criminals.”

I cannot support Professor Bibas’ nomination and will vote no.

In closing, as my colleagues consider how they will vote on these—and other—nominees, I would urge them to consider the broader context in which we are considering this President’s judicial nominees.

We have a president who has demonstrated contempt for the rule of law, and for the independence of the federal judiciary. I am deeply concerned that this president expects the courts to just rubberstamp his policy preferences.

For every judicial nomination, we have to consider carefully the nominee’s record and reflect on whether they can truly be fair, independent, and impartial—whether they will respect the rule of law. For these reasons and the records of the four nominees I have just discussed, I cannot support them.”

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