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May 11, 2011

Executive Session

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NOMINATION OF EDWARD MILTON CHEN TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

The PRESIDING OFFICER. Under the previous order, the Senate will proceed to executive session to consider the following nomination, which the clerk will report.

The legislative clerk read the nomination of Edward Milton Chen, of California, to be United States District Judge for the Northern District of California.

The PRESIDING OFFICER. Under the previous order, there will be 3 hours of debate equally divided in the usual form.

The Senator from Iowa is recognized.

Mr. GRASSLEY. We are on the nomination; is that right?

The PRESIDING OFFICER. The Senator is correct.

Mr. GRASSLEY. Mr. President, I rise today to speak in opposition to Magistrate Judge Chen, the President's

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nominee for the Northern District of California. Before I address Judge Chen's nomination, I wish to say a few words about our progress on judicial nominations.

At the beginning of this Congress, I told the chairman that I would work with him to process consensus nominees at a fair and reasonable pace. Thus far this Congress, I have worked very hard and in good faith to do just what I promised. We have confirmed consensus nominees with a particular focus on nominees in so-called judicial emergencies. I made that commitment to the chairman, and I have kept it.

The Senate has been in session for only 46 days this Congress. In that short period, we have confirmed 20 judges. We confirmed three judges last week. In fact, thus far we have taken positive action on 43 of 71 nominees who have been submitted to this Congress by the President--20 have been confirmed, 13 have been reported out of committee, and 10 have had hearings in the committee. All totaled, we have taken positive action, then, on 61 percent of the judicial nominees submitted by the President during this Congress.

Despite my good-faith efforts, my colleagues from the other side continue to accuse us of not moving quickly enough. And, I might add, the White House Counsel continues to state publicly that we are not moving fast enough. Recently, the President's top lawyers spoke to a group of ABA members and asked them to ``bring home the impact or the effects of gridlock.'' The President's lawyer neglected to tell the American Bar Association that the problem begins at the White House. In other words, the Senate cannot act on nominees for judicial appointments if the President has not processed them and sent them to the Senate. The President has failed to send to the Senate a nomination for 50 percent of the current judicial nominees. Yet we have his White House Counsel telling the American Bar Association: Get on top of the Senate and tell them to get their job done, when we have processed 61 percent of the ones who are up here and done it in the 46 days we have been in session. Somehow they expect us to process nominees who have not been submitted to the Congress. That is not possible. This statistic certainly does not indicate a sense of urgency on the part of the White House--in other words, the fact that the Senate has not even received 50 percent of the nominees for those vacancies.

Notwithstanding my efforts to work together, the majority insists on taking detours and throwing up roadblocks to this cooperative effort. For example, last week, after moving forward with two district court judges, the majority leader filed cloture on one of President Obama's most controversial nominees, Mr. Jack McConnell. This week, the majority leader has turned to two more of the President's controversial nominees. Last night, we defeated a cloture motion for Mr. Cole, the President's nominee for Deputy Attorney General, and today we turn to Judge Chen. Of course there are noncontroversial nominees the Senate could turn to. We could confirm additional district judges as we have been doing. But rather than continuing to move forward with the consensus nominees, the other side has chosen to turn to the President's most controversial nominees.

I must say this makes it extremely difficult to continue to work in a good-faith effort to move forward on noncontroversial nominees. From our perspective, it appears that the more we try to work with the majority, the more we are accused of not moving fast enough. The test, I guess, is in the pudding and the general counsel for the White House telling the American Bar Association lawyers to get on the Senate to get more nominees confirmed. The more we try to move consensus nominees, the more the other side insists on moving the President's most objectionable nominees.

Judge Chen is not a consensus nominee. His nomination was considered during the last Congress and was voted out of committee on a party-line vote. The nomination was returned to the President on more than one occasion. Despite our repeated and consistent opposition, the nomination was resubmitted this year. Again it was reported out on a 10-to-8 party-line vote. Yet, despite the unanimous Republican opposition to the nominee, we have agreed to a short time agreement rather than engage in extended debate on this nomination.

With that, I have some remarks regarding Judge Chen's nomination. At the outset, let me emphasize the basis of my opposition. It is based on Mr. Chen's judicial philosophy, on his own statements, and on his record. It is absolutely critical that our judges remain impartial. That is the independence of the judiciary. That is why it is independent. Their job is to interpret law, not to make law. Our system depends upon this independence and impartiality. For that reason, when judges put on a robe for the first time, they take a solemn oath that they will remain impartial. They swear that they will administer

justice ``without respect to persons and do equal right to the poor and to the rich.'' That is why we want to make sure judges we confirm will set aside their personal opinions. We do not want their personal views to influence how they do their job. They are supposed to decide cases based on facts and on law and nothing else.

Unfortunately, there are some who believe that this notion of impartiality is somehow just plain old-fashioned and outdated. They believe judges should not be limited to the facts and the law. Instead, they believe judges should look at the litigants themselves. The President seems to take this view. This is the heart of the so-called empathy standard. The problem, of course, is that empathy for one litigant is a bias against the other. But Mr. Chen appears ready and willing to adopt and to apply the so-called empathy standard. He appears to be a member of the camp who believes that being completely impartial is just an old-fashioned view of judging.

In 2003, as a sitting Federal magistrate judge, he wrote an article that summed up his view, and I want to quote it. It is fairly long.

Judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experiences. Such experiences inform assumptions that affect legal decisions. ..... Simply put, a judge's life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide. These determinations require a judge to draw upon something that is not found in case reports that line the walls of our chambers. Rather, judges draw upon the breadth and the depth of their own life experience, upon the knowledge and understanding of people, and of human nature.

I am sure John Marshall would turn over in his grave if he heard that about modern 20th-century and 21st-century judges.

The problem with this approach is that it is the exact opposite of what judges are supposed to be. Judges are supposed to determine the facts and apply the law. That is what their oath demands, and that is what judges must do for our judicial system to remain independent and impartial.

In addition to allowing empathy to affect his decisionmaking, Judge Chen appears willing to inject his personal views into judging. Both his writing and public comments while as a magistrate judge suggest that Judge Chen believes judges should interpret the law according to their personal understandings and preferences. This is a classic definition of judicial activism.

For example, in discussing his work as a magistrate judge, he stated in a speech in 2007 before the American Constitution Society that he finds ``most rewarding ..... contributing to the development of the law via published opinion, especially if it comports with my view of justice.'' Again, the problem here is that a judge's view of justice is very irrelevant. Judges are not policymakers. That is what we are in the Congress of the United States. Judges are called on to decide the facts and to apply the law. Their own view of justice is simply not relevant.

Given that Judge Chen believes a judge's personal views and experiences impact their decisions, it becomes important for us to understand his views and how they were shaped. Prior to becoming a magistrate judge, Judge Chen worked as a staff attorney at the ACLU for over 15 years. He was a advocate for the ACLU. He took very liberal positions on a variety of issues. I would like to name just a few. He opposed private drug testing, he opposed antigang injunctions, he defended affirmative action, he harshly criticized English-

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only measures, and he argued that Alabama should be forced to give driving tests in languages other than English.

Those who have defended Judge Chen's nomination have argued that we should not consider his work for the ACLU. As I said, we have confirmed other nominees with strongly held personal views. But when a nominee says that personal views and experiences should and will influence how they approach cases, it becomes difficult to overlook their work on behalf of an organization such as the ACLU.

Judge Chen's advocacy on behalf of the ACLU is not disqualifying in and of itself. But it is hard to imagine why Judge Chen would devote so much of his professional career to the ACLU causes if he did not believe in them deeply. More importantly, given that in Judge Chen's view, personal views and personal experiences should influence how a judge decides cases, we have no choice but to examine Judge Chen's personal views and experiences, including his work at that organization.

For these reasons and others, I oppose this nomination. If Judge Chen is confirmed today, I sincerely hope he will prove me wrong. I sincerely hope he will set aside his personal views and make decisions based solely on the facts and on the law. But based on the record before this Senator, I fear he will not be able to do so. Therefore, I will vote no on his confirmation.

I yield the floor.

(Senate - May 10, 2011)

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