Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Committee on the Judiciary
Executive Business Meeting
Thursday, December 8, 2011
With regard to the nominations, we ask that Brian Wimes, who is on the agenda for the first time, be held over.
We’re prepared to vote on Kathryn Keneally, who is nominated to be the Assistant Attorney General for the Tax Division at the Department of Justice. And I’ll say a few words about her now.
I asked Ms. Keneally a number of questions during her hearing. After the hearing, I asked her additional questions in writing. Her responses demonstrated her command of the subject matter.
I think it’s fair to say that Ms. Keneally is much more qualified for this position than the President’s previous nominee.
I’m prepared to vote in favor of her nomination in Committee. However, given the lack of cooperation I’m getting from the Department of Justice, I can’t commit to moving forward with her nomination on the Senate floor.
I spoke yesterday on the Floor regarding the Fast and Furious investigation. As my colleagues may be aware, I’ve reached the conclusion that Mr. Lanny Breuer should resign from his post at the Justice Department.
I have not reached that conclusion lightly. And I will not take the time now to go over all the reasons that lead me to that conclusion.
But I would note that this investigation will continue. Unfortunately, the Justice Department still refuses to fully cooperate with our investigation.
The Justice Department, through a letter it sent on Tuesday, is refusing to provide several Justice Department staff for transcribed interviews.
This letter explicitly goes back on the assurances I received when I consented to proceed with the confirmation of three senior Justice Department officials earlier this year.
One of my conditions for agreeing to proceed with those nominations was that officials who agreed to voluntary interviews in this investigation would have either a personal lawyer present or a Department lawyer present, but not both.
I personally met with the Attorney General and he had that condition listed on a piece of paper in front of him.
It looked as if he had read it and was familiar with it, yet he never objected to that condition.
Dozens of witness interviews have been conducted under that understanding without any problems.
The only difference now is that instead of ATF witnesses, we are now seeking to interview Justice Department witnesses.
I was relying on the Attorney General and the other officials at the Department to honor their agreement.
Based on the letter they sent me this week, that’s not going to happen.
As I said yesterday, I’ll take whatever steps I can here in the Senate to encourage the Department to reconsider its position. The Department should stick to its original agreement.
I mention this now because I want my colleagues to be aware, that although I’m willing to move Ms. Keneally’s nomination out of Committee, I will reserve all of my rights on the Senate Floor.
On the legislation on the agenda, we request that S.1821, the Temporary Bankruptcy Judgeships Extension Act and S.1236, the Border Tunnel Prevention Act, which are both on the agenda for the first time, be held over.
We’re prepared to vote on S.1886, the Counterfeit Drug Penalty Enhancement Act and S.678, the Economic Espionage Penalty Enhancement Act. And I believe that those can be voice votes.
On the Counterfeit Drug bill, I agree that there should be enhanced penalties for trafficking in counterfeit drugs and I’m pleased to be a cosponsor of the bill with the Chairman.
I laid out my objections to Ms. Halligan’s record at length on the floor on Tuesday. But given that some appear to be fixated on talking about it today, I have a lot to say.
I firmly believe that by any fair measure, Ms. Halligan’s record falls well outside of the mainstream. On a host of issues, she consistently came down on the side of the far left. And she consistently advocated an activist and extreme approach to the law.
For instance, there can hardly be any debate that Ms. Halligan has taken an extreme approach on issues related to the Second Amendment. I know that many of my Democrat colleagues may have a very different view of the Second Amendment than those of us on this side do. But it is an important issue for us.
Ms. Halligan was leading the charge in suing gun manufacturers for the criminal acts committed by third parties. She wasn’t just representing some client. This was an activist action. Those lawsuits, of course, were based on meritless legal theories, and were specifically designed to drive gun manufacturers out of business. Those lawsuits were not in the mainstream. The American people overwhelmingly supported Congress’s effort to curb them.
Thankfully, the New York appellate court explicitly rejected her legal theory. The New York Court explained that it had “never recognized [the] common-law public nuisance cause of action” that Ms. Halligan advanced. I want my colleagues to think about that. The court said that New York had “never recognized the common-law public nuisance” theory she was advocating.
That’s the very definition of activism on her part.
This is what was happening with these lawsuits back then. Lawyers were trying to come up with new and novel legal theories in an attempt to hold gun manufacturers liable for the actions of third parties.
Those lawyers were hoping that they could get one or two like-minded activist judges to adopt their theory. And if that happened, then you could sue the industry into extinction. That’s what was going on with those lawsuits.
It’s no wonder that the appellate court described what Ms. Halligan was trying to do as “legally inappropriate.” Some of my friends on the other side have compared Ms. Halligan’s litigation practices to that of the Chief Justice. But I can assure you that no court ever described any claim or defense asserted by Chief Justice Roberts as being “legally inappropriate.”
The reason her claims were “legally inappropriate” is because these types of social policy decisions are supposed to be made by the Legislative and Executive branches, not by unelected judges.
And that is why, when the New York Court rejected her legal theory, the court correctly concluded that “the Legislative and Executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.”
At the end of the day, the fact of the matter is that when the Congress was debating how to address these bogus law suits, she was pursuing them. And, she then opposed the legislation we were considering in Congress precisely because it would stop the type of lawsuit she was pursuing.
She described her opposition in a speech she delivered in 2003. She said, “[i]f enacted, this legislation would nullify lawsuits brought by nearly 30 cities and counties –including one filed by my office—as well as scores of lawsuits brought by individual victims or groups harmed by gun violence . . . . Such an action would likely cut off at the pass any attempt by States to find solutions – through the legal system or their own legislatures – that might reduce gun crime or promote greater responsibility among gun dealers.”
That view is simply not in the mainstream.
There was another aspect of that same speech that is really troubling. I mentioned this on the floor, but it bears repeating. Ms. Halligan expressed her view of the law and legal system when she said, “courts are the special friend of liberty. Time and time again we have seen how the dynamics of our rule of law enables enviable social progress and mobility.”
I think this statement is quite telling because it reveals what many of us have been saying for years about how extreme activists approach the law. Over and over again, activists on the far left try to use the courts to mandate, by judicial fiat, social policy changes that they are unable to achieve through the ballot box.
That is part of the reason why those nuisance lawsuits against gun manufacturers are so troubling. They were an attempt by those on the left to have a judge do for them what they could not accomplish through their elected representatives. That is why I said on Tuesday that those lawsuits represented not only bad policy, but more broadly, a radical activist approach to the law. The fact of the matter is that Ms. Halligan was one of those leading the way.
But the troublesome aspects of Ms. Halligan’s record are not limited to the Second Amendment. I am also concerned about her views on the War on Terror and the detention of enemy combatants. As a nominee for the D.C. Circuit where many of these issues are heard, this is especially troublesome.
As we have discussed at length, the report that Ms. Halligan signed onto in 2004 made a number of claims regarding the War on Terror that I find extremely troublesome.
Now, at her hearing, Ms. Halligan said she did not recall reading that report, or signing on to it. As I said on the floor, I recognize that memories fade over time. But, as I assess her testimony, I must also consider the fact that at least 4 other members of that committee abstained from the final report. Ms. Halligan did not.
Moreover, I have to consider the fact that she co-authored an amicus brief, pro bono, before the Supreme Court in the 2009 case of Al-Marri v. Spagone.
Ms. Halligan’s brief in that case took a position similar the 2004 report with respect to military detention of terrorists.
The fact that Ms. Halligan co-authored this brief, pro bono, suggests to me that she supported the conclusions reached by the 2004 report. And again, this issue is particularly troublesome for a nominee to the D.C. Circuit, where many of these questions are heard.
On issue after issue, Ms. Halligan’s record demonstrates an activist approach to the law.
For instance, as New York’s Solicitor General, Ms. Halligan was responsible for recommending to Attorney General Spitzer that the state intervene in several high profile Supreme Court cases.
She filed amicus briefs that consistently took activists positions on controversial issues such as abortion, affirmative action, immigration, and federalism.
-In Scheidler v. National Organization for Women, she supported NOW’s claim that Pro-Life protestors had engaged in extortion. Ms. Halligan’s position was rejected by the Supreme Court 8 to 1.
That was not a mainstream position by her.
-In the affirmative action cases of Grutter and Gratz, she argued that the use of race in college and law school admissions was not only appropriate, but constitutional.
-In Hoffman Plastics v. NLRB, she argued that the National Labor Relations Board should have the authority to grant back-pay to illegal aliens, even though federal law prohibits illegal aliens from working in the United States.
These are not mainstream positions.
As much as my colleagues may wish to characterize Ms. Halligan’s record as “mainstream,” the evidence makes clear that the exact opposite is true.
I would also like to take a minute to respond to some of the criticisms that I heard over the last couple days regarding the use of the filibuster on judicial nominations.
Based on what I’ve been hearing, I think some of my colleagues have extremely short – if not selective – memories. So I think just a bit of history is in order.
I was amazed to hear some of my colleagues suggest that with Tuesday’s vote, somehow we have broken new ground.
During the last Administration, my colleagues on the other side truly established a whole new set of ground rules.
In fact, during the first 3 years of President Bush’s first term, my colleagues successfully filibustered 6 Circuit Court nominees a total of 16 times.
The fact of the matter is members of this committee voted against cloture all 16 times. And that was only during the first 3 years. By contrast, during the first 3 years of this President’s term, we have filibustered 2 of his nominees. That’s it: 2.
But my friends on the other side did not stop in 2003. In 2004, they continued to filibuster exceptional nominee after exceptional nominee.
There has also been some discussion recently about the so-called “gang of 14” agreement. Now, as an initial matter, that agreement by its own terms doesn’t exist anymore. So I don’t understand how it is possible that Tuesday’s vote could have ended the agreement.
Regardless, the facts are that prior to that so-called agreement, the Democrats filibustered 10 circuit court nominees a total of 20 times.
And, the Democrat members of this committee who were here at the time voted against cloture every single time. Again, that was 20 times, on 10 circuit nominees.
And even after the so-called agreement, Democrats continued to attempt filibusters on nominees. For instance, 30 Democrats voted against cloture on Brett Kavanaugh’s nomination in 2006. 35 Democrats voted against cloture on Leslie Southwick’s nomination.
And even on the nomination of Judge Alito for Associate Justice of the Supreme Court, 25 Democrats voted against cloture. The Democrats tried to filibuster a Supreme Court nominee. Again, these attempted filibusters occurred well after the so-called “gang of 14” agreement.
So, given this history, I take offense at the suggestion that those of us on this side have somehow broken new ground.
The fact of the matter is that we are operating under the ground rules the Democrats established. Only, we have shown restraint and respect, while the other side has not.