Senate Proceeding 05-10-11 on May 10th, 2011 :: 0:01:40 to 0:15:15
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0:01:35 to 0:01:55( Edit History Discussion )

Chuck Grassley: district of california. before i address judge chen's nomination, i want 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.

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Speech By: Chuck Grassley

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Chuck Grassley: thus far this congress, i have worked very hard and in good faith to do just wha promised. we've confirmed consensus nominees with a particular focus on nominees in so-called judicial emergencies. i made that commitment to the chairman and i've kept it. the senate has been in session

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Chuck Grassley: 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 that have been submitted to this congress by the president.

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Chuck Grassley: 20 have been confirmed, 13 have been reported out of committee, and 10 have had hearings in the committee. all total, we have taken positive action, then, on 61% of the judicial nominees submitted by the president during this congress. despite my good-faith efforts,

0:03:01 to 0:03:22( Edit History Discussion )

Chuck Grassley: 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 lawyer spoke to a group of aba members and asked them -- quote -- "to bring home the

0:03:23 to 0:03:43( Edit History Discussion )

Chuck Grassley: impact or the effect 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 can't act on nominees for judicial appointments if the president has not processed them and sent

0:03:44 to 0:04:04( Edit History Discussion )

Chuck Grassley: them to the senate. the president has failed to send to the senate a nomination for 50% of the current judicial nominees and 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

0:04:05 to 0:04:26( Edit History Discussion )

Chuck Grassley: processed 61% of the ones that are up here and done it in 46 days that we've been in session and somehow they expect us to process nominees that have not been submitted to the congress. that is not possible. this statistically certainly does not indicate a sense of urgency on the part of the white

0:04:27 to 0:04:49( Edit History Discussion )

Chuck Grassley: house. in other words, the fact that the senate has not even received 50% 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

0:04:50 to 0:05:11( Edit History Discussion )

Chuck Grassley: court judges, the majority leader filed cloture on one of president obama's most controversial nominees, mr. jack mcdonald. and now this week, the majority leader has turned to two more of the president's controversial nominees. last night, we defeated a cloture petition for mr. cole, the president's nominee for deputy attorney general, and

0:05:12 to 0:05:33( Edit History Discussion )

Chuck Grassley: today we turn to judge chen. of course, there noncontroversial nominees that the senate could turn to. we could confirm additional district judges that we have -- 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.

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Chuck Grassley: i must say this makes it extremely difficult to continue to work in 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 that we're accused of not moving fast enough. and the -- the pudding -- the

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Chuck Grassley: test i guess is in the pudding in the general counsel for the white house telling the american bar association lawyers to get on the senate to get more nominees confirmed. so the more we try to move consensus nominees, the more the other side insists on moving the president's most objectionable nominees.

0:06:20 to 0:06:40( Edit History Discussion )

Chuck Grassley: 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

0:06:41 to 0:07:01( Edit History Discussion )

Chuck Grassley: year. again it was reported out on a 10-8 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.

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Chuck Grassley: with that, i have some remarks regarding judge chen's nomination. at the outset, let me emphasize the basis of my opposition. it's based on mr. chen's judicial philosophy statements, and on his record.

0:07:23 to 0:07:44( Edit History Discussion )

Chuck Grassley: it is absolutely critical that our judges remain impartial. that's the independence of the judiciary. that's why it's 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 the robe for the first time,

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Chuck Grassley: they take a solemn oath that they will remain impartial. they swear that they will administer justice -- quote -- "without respect to persons and do equal right to the rich and the poor." that is why we want to make sure that judges we confirm will set aside their personal opinions.

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Chuck Grassley: 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

0:08:28 to 0:08:49( Edit History Discussion )

Chuck Grassley: plain old-fashioned and outdated outdated. they believe that 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.

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Chuck Grassley: the problem, of course, is that empathy for one litigant is a biased 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 that believes that being completely impartial is just an

0:09:13 to 0:09:36( Edit History Discussion )

Chuck Grassley: 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. fairly long -- quote -- "judges have to make determinations that draw not so much upon legal acumen but on an understanding

0:09:37 to 0:09:57( Edit History Discussion )

Chuck Grassley: of people and of human experiences. such experiences inform assumption as that affect legal decisions. simply put, a judge's life experiences affect the willingness to credit testimony or understand the human impact

0:09:58 to 0:10:18( Edit History Discussion )

Chuck Grassley: 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 chamber. rather, judges draw upon the breadth and the depth of their own life experience, upon the

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Chuck Grassley: knowledge and understanding of people, and of the human nature." i'm sure that john marshall would be overturning -- turning over in his grave if he heard that about modern 20th century and 21st century judges.

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Chuck Grassley: 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

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Chuck Grassley: for our judicial to be -- remain independent and impartial. in addition to allowing empathy to affect his decision making, judge chen appears willing to inject his personal views into judging. both his writing and public comments while as a magistrate

0:11:25 to 0:11:45( Edit History Discussion )

Chuck Grassley: judge suggests 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

0:11:46 to 0:12:08( Edit History Discussion )

Chuck Grassley: before the american constitution society that he finds -- quote -- "most rewarding contributing to the development of the law via public -- published opinions, especially if it comports with my view of justice." again, the problem here is that

0:12:09 to 0:12:30( Edit History Discussion )

Chuck Grassley: a judge's view of justice is very irrelevant. judges are not policy-makers. that's 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.

0:12:31 to 0:12:55( Edit History Discussion )

Chuck Grassley: given that judge chen believes that 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

0:12:57 to 0:13:18( Edit History Discussion )

Chuck Grassley: years. he was an advocate for the aclu. he took very liberal positions on a variety of issues. i'd like to name just a few. he he opposed antigang injunctions. he defended affirmative action.

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Chuck Grassley: he harshly criticized english-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 he should not consider his work for the aclu. and as i said, we have confirmed

0:13:40 to 0:14:02( Edit History Discussion )

Chuck Grassley: 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 like the aclu. judge chen's advocacy on behalf

0:14:03 to 0:14:23( Edit History Discussion )

Chuck Grassley: of the aclu is not disqualifying in and of itself, but it is hard to imagine any -- 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

0:14:24 to 0:14:44( Edit History Discussion )

Chuck Grassley: 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

0:14:45 to 0:15:06( Edit History Discussion )

Chuck Grassley: oppose this nomination. if judge chen is confirmed today, i sincerely hope that he will prove me wrong. i sincerely hope that 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 that he

0:15:07 to 0:15:16( Edit History Discussion )

Chuck Grassley: will not be able to do so. therefore, i will vote "no" on his confirmation. i yi mr. alexander: mr. president? the presiding officer: the