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Sessions: Statement on Obama's Court Picks
Sessions Delivers Statement on President Obama's Controversial Court Picks
“President Obama’s empathy standard is not grounded in law, but in lawlessness. It is bias and politics, not law. It must and should be rejected. It is plainly contrary to the oath that each judge must take.”
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, delivered remarks today at a Committee meeting to consider a number of President Obama’s judicial nominations, including five of his most controversial picks who were recently renominated: Goodwin Liu, Robert Chatigny, Edward Chen, Louis Butler, and Jack McConnell.
Text of Sessions’ remarks, as prepared, follow:
“Mr. Chairman, yesterday on the Senate floor I spoke at length about activism in our federal courts. The litany of cases I described was not comprehensive. Those cases are not anomalies. This is a troubling pattern and the American people don’t like it. They know what’s being done by activist judges, and they are going to hold them and Senators accountable for the judges they have confirmed and the superb ones they have blocked.
The President has nominated and will continue to nominate judges who believe in such activism. He has made no secret of his flawed judicial philosophy. It is terribly flawed. In a speech on the Senate floor opposing the nomination of Chief Justice John Roberts, then-Senator Obama said that in the “truly difficult” cases judges cannot rely on precedent or “rules of statutory or constitutional construction.” Instead, he argued, judges must base their rulings on “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In a speech to Planned Parenthood, a pro-abortion organization, he said he hoped judges would reach decisions based on “their broader vision of what America should be.” And when Justice Stevens retired, he said that he would look for a nominee to the Supreme Court with “a keen understanding of how the law affects the daily lives of the American people.” These are not misstatements of the moment. They represent a view of judging that is foreign to the American tradition.
President Obama’s empathy standard is not grounded in law, but in lawlessness. It is bias and politics, not law. It must and should be rejected. It is plainly contrary to the oath that each judge must take, which states:
“I… do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…”
America needs judges on the bench who are honorable, intelligent, capable, and, most importantly, who understand that their role is to enforce the law as written, not judges who will render rulings that go beyond the plain meaning or manipulate words to give them new and different meanings in order to promote their vision of what America should be.
According to a recent Rasmussen poll, most Americans reject this activism. Fifty-three percent of voters believe judges have their own political agenda, while only twenty-nine percent believe they are generally impartial.
Why should they not, when the President openly advocates for such judges? We Republicans, and those Democrats who believe in the American heritage of impartial judges, have a right to ask questions, and even oppose bad nominees. Surely our Democrat colleagues, with their history, won’t object to that. We are talking about lifetime appointments to the Federal bench with essentially no opportunity to reexamine a nominee once confirmed. This body has a Constitutional duty to thoroughly vet each and every nominee that comes before us.
We have been and will be fair, courteous, and honest, but we will not be a rubber stamp or a potted plant.
So, I ask my Democrat colleagues: Will you stand by and rubberstamp a nominee simply because he or she has been nominated to one of the lower federal courts? Will you not fulfill your duty to thoroughly examine each nominee’s record and consider each nominee on his or her own merits simply because he or she was nominated by a president of your own party?
The real problem is that we have no choice but to assume that the President chooses his nominees on the basis he has openly stated: because they share his own flawed judicial philosophy. And, indeed, a common theme has surfaced in many of their records: They look outside of the law in judging and their policy preferences are outside the mainstream of American political thought.
There is no question that the President, a former liberal law professor, intends to pack the courts with as many activists who will promote his vision of what America should be as he can. But Republicans will not stand quietly by and allow the rule of law in America to be historically altered by a federal judiciary that is agenda-oriented. If anything, we have been far too generous with our consent. Any judge who is not faithful to and will not subordinate his personal views, liberal or conservative, to the law and the Constitution should not sit on the bench. I will not support them and no Senator should support them.
In this vein, President Obama has nominated (and re-nominated) a string of very controversial nominees, including some to the district courts, who are far outside of the mainstream: Goodwin Liu for the Ninth Circuit; Robert Chatigny for the Second Circuit; Louis Butler for the Western District of Wisconsin; Jack McConnell for the District of Rhode Island, and Edward Chen for the Northern District of California. For each of these nominees, Republicans have repeatedly voiced very specific objections and detailed concerns. These five nominees were returned with the hope that the President would reconsider; yet the President persists. So I would like to highlight just some of those concerns:
Goodwin Liu, nominated to the Ninth Circuit—the most activist liberal court in the country—does not believe judges must apply the Constitution according to its original meaning, but rather are free to “adapt” the Constitution “in light of changing needs, conditions, and understandings of our society.”
He believes the Constitution is a “living document,” is “indeterminate,” and subject to “socially situated modes of reasoning that appeal… to… culturally and historically contingent meanings.”
He has written that “expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit” are positive Constitutional rights.
And he believes that it is acceptable for American judges to use foreign law in interpreting our Constitution, saying that “the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.”
As a federal district court judge in Connecticut, Robert Chatigny did everything in his power to prevent the execution of confessed serial killer Michael Ross (the “Roadside Strangler”), who was convicted of the kidnapping, rape, and murder of six Connecticut girls and young women ages 15 to 25.
After granting two stays of execution, which were both reversed on appeal, he bullied the defendant’s lawyer into filing an additional stay because, after almost 20 years on death row, the defendant didn’t want to appeal anymore. Judge Chatigny argued that the defendant suffered from death row syndrome and was not competent to waive further appeals. He also called the serial killer the “least culpable person on death row,” said that he “never should have been convicted,” and that his sexual sadism should have been treated as a mitigating factor.
After the case concluded, the prosecutors discovered that Judge Chatigny previously was involved in the case as a private attorney. His actions resulted in seven state prosecutors filing an ethics complaint against him and a Connecticut congressman calling for his impeachment. Apparently, President Obama thinks this conduct warrants a promotion to the Second Circuit Court of Appeals.
Judge Chatigny’s involvement in the Ross case is but one of the troubling examples of his activism in cases involving vulnerable victims. He declared Connecticut’s Megan’s Law unconstitutional—a decision unanimously reversed by the U.S. Supreme Court—and has repeatedly departed downward to grant low sentences to sex offenders—sentences well below the levels prescribed by the U.S. Sentencing Commission.
The nominee for the District Court for the Western District of Wisconsin, Louis Butler, is such a judicial activist that Wisconsin voters twice rejected his candidacy for a seat on the state’s supreme court; yet, President Obama now insists on imposing Mr. Butler on the people of Wisconsin by nominating, and re-nominating him, to the federal district court in that state.
While on the Wisconsin Supreme Court, he notoriously authored and joined activist opinions, disregarding the policy decisions of the legislature and binding precedent, and instead inserting his own policy preferences.
In one case, he held that a manufacturer could be liable for injuries from a product that, as the dissent aptly put it, the manufacturer “may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when [the manufacturer was] not even part of the relevant market.”
In another case, a Butler court majority somehow interpreted a voter-approved constitutional amendment clearly written to expand gun-carrying rights as instead limiting those rights.
As a practitioner, he earned, and publicly embraced, the nickname “Loophole Louie,” for winning reversals of his clients’ criminal convictions on technicalities.
Jack McConnell, nominee for the District Court for the District of Rhode Island, has pioneered the controversial practice of private attorneys representing State Attorneys General on contingency-fee contracts. At the same time, he has taken the unseemly step of contributing substantial amounts of money to the political campaigns of the very Attorneys General awarding those contingency-fee contracts to him—arrangements that raise serious questions of pay-to-play.
After Mr. McConnell’s questionable theory of liability against lead paint manufacturers was unanimously rejected by the Rhode Island Supreme Court, he publicly attacked the decision as letting “wrongdoers off the hook,” revealing his preference for outcome-driven judicial decisions. Moreover, with respect to his involvement in these types of lawsuits, Mr. McConnell said “there are wrongs that need to be righted, and that’s how I see the law.”
His own home state Senator (Reed), confirmed Mr. McConnell’s viewpoint, stating that Mr. McConnell “could add balance to the large number of corporate lawyers on the federal bench” and that he “cares about the little guy,” apparently referring to Mr. McConnell’s lawsuits against manufacturers of asbestos, tobacco, and lead paint.
The United States Chamber of Commerce, which has never taken a position on a district court nominee, has publicly opposed this nomination, citing Mr. McConnell’s “actions during his career as a personal injury lawyer and past statements [that] demonstrate his disregard for the rule of law, an activist judicial philosophy and obvious bias against businesses.”
[Sessions alluded to his comments about Edward Chen from last week’s executive business meeting, but did not repeat them today.]
It is clear that the President has chosen to ignore the seriousness and extent of our concerns. If President Obama is going to insist on nominating and re-nominating controversial individuals like those before us today, then there will be delays in the confirmation process. Not only do these nominations cause delay in and of themselves, but they cause Senators to be more cautious about giving the President the benefit of the doubt on other nominations.”
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