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For Immediate Release
January 16, 2014

Grassley Statement at Judiciary Exec

Concerns with Barron Nomination

Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Committee on the Judiciary
Executive Business Meeting
On the Nominations of:
Carolyn B. McHugh, to be United States Circuit Judge for the Tenth Circuit
John B. Owens to be United States Circuit Judge for the Ninth Circuit
Michelle T. Friedland, to be United States Circuit Judge for the Ninth Circuit
Nancy L. Moritz, to be United States Circuit Judge for the Tenth Circuit
David Jeremiah Barron, to be United States Circuit Judge for the First Circuit
Jeffrey Alker Meyer, to be United States District Judge for the District of Connecticut
Timothy L. Brooks, to be United States District Judge for the Western District of Arkansas
James Donato, to be United States District Judge for the Northern District of California
Beth Labson Freeman, to be United States District Judge for the Northern District of California
Pedro A. Delgado Hernandez, to be United States District Judge for the District of Puerto Rico
Pamela L. Reeves, to be United States District Judge for the Eastern District of Tennessee
Vince Chhabria, to be United States District Judge for the Northern District of California
James Moody, Jr., to be United States District Judge for the Eastern District of Arkansas
Matthew Leitman, to be United States District Judge for the Eastern District of Michigan
Judith Ellen Levy, to be United States District Judge for the Eastern District of Michigan
Laurie J. Michelson, to be United States District Judge for the Eastern District of Michigan
Linda Vivienne Parker, to be United States District Judge for the Eastern District of Michigan
Christopher Reid Cooper, to be United States District Judge for the District of Columbia
M. Douglas Harpool, to be United States District Judge for the Western District of Missouri
Gerald McHugh, Jr., to be United States District Judge for the Eastern District of Pennsylvania
Edward G. Smith, to be United States District Judge for the Eastern District of Pennsylvania
Sheryl H. Lipman, to be United States District Judge for the Western District of Tennessee
Stanley Allen Bastian, to be United States District Judge for the Eastern District of Washington
Manish S. Shah, to be United States District Judge for the Northern District of Illinois
Daniel D. Crabtree, to be United States District Judge for the District of Kansas
Cynthia Ann Bashant, to be United States District Judge for the Southern District of California
Jon David Levy, to be United States District Judge for the District of Maine
Theodore David Chuang, to be United States District Judge for the District of Maryland
George Jarrod Hazel, to be United States District Judge for the District of Maryland
Peter Joseph Kadzik, to be an Assistant Attorney General
Bills:
S.619, Justice Safety Valve Act of 2013 (Leahy, Paul)
S.1410, Smarter Sentencing Act of 2013 (Durbin, Lee, Leahy, Whitehouse)
S.1675, Recidivism Reduction and Public Safety Act of 2013 (Whitehouse, Portman)
Thursday, January 16, 2014


Mr. Chairman,

Today, we have a very large agenda and I hope to work with you to vote on everything in a reasonable amount of time, but I do have some concerns with several of the nominees that I need to share. We will be asking for roll call votes on approximately eight of the thirty nominees.

Regarding the legislation on the agenda, it is my understanding that we are still not ready to move forward with it and that it will be held over.

Regarding the nominations, I understand our staffs have worked together so we can proceed in an organized fashion since there’s a lot to do on the agenda today.

To start, let me say a few words about the nominees who received a vote in committee last session. I won’t repeat everything that I’ve already said, but I do want to share my concerns with some of these nominees.

First, regarding Mr. Chhabria: I didn’t support his nomination last session, and I won’t be supporting him today.

I’d like to note that I try to give a great deal of deference to the home state senators, particularly on district court nominees. I have voted for over 90 percent of the President’s nominees. These include a number of nominees who have advocated for legal standards and policy preferences that I disagree with profoundly.

But I also take my role of “advise and consent” seriously. Unfortunately, in this case, I have concluded that this nominee’s views are so firmly and deeply held that he won’t be able to set them aside in a judicial setting.

I am concerned about his advocacy against religious liberty and his limited view of Second Amendment rights.

I have some other concerns about this nominee that I won’t elaborate on here, but I am not convinced that he’ll be able to set aside his policy preferences and to serve as a fair and impartial jurist.  I expect Mr. Chhabria will be confirmed, and I hope he proves me wrong.

So, we request a roll call vote on Mr. Chhabria, and with regret, I will vote No. And I have a longer statement I’d like to submit for the record on Mr. Chhabria.

We’re also considering again the nomination of Mr. Kadzik to be an Assistant Attorney General. I opposed Mr. Kadzik’s nomination last session and I’ll be opposing him today. I remain concerned about how forthcoming Mr. Kadzik was during his nomination hearing.  And I also have concerns about his approach to the congressional oversight process.

The Justice Department’s Office of Legislative Affairs has a lot of work to do to rebuild trust and confidence after the false letter it sent to me and later withdrew on Fast and Furious.  

I wish I could say that Mr. Kadzik had demonstrated the kind of serious recommitment to open, honest, and forthright cooperation with congressional oversight that the office needs.  Unfortunately, in my opinion, he hasn’t.  Therefore, I will vote no on his nomination. I have a longer statement I’d like to submit for the record on Mr. Kadzik.

I understand that the remaining nominees who were considered by the committee last year can be considered by voice vote today.

With regard to the new nominations today, I would like to say a few words about several of them, and we will be requesting roll call votes on a few of the nominees as well.

David Barron
I will be voting “no” on the nomination of Professor Barron. I have a number of concerns with Professor Barron’s record. Based on my review of his record, I don’t believe he’ll be able to impartially fulfill the duties of circuit court judge. Over his career, Professor Barron has taken policy positions and advocated for political agendas that are far outside the mainstream. I’d like to mention just a few.
    
First, I’d like to note that, according to an article in the New York Times, as the head of the Office of Legal Counsel, he authored the memo providing the legal justification for targeted killings via drone strikes on American citizens abroad.

I’d also note that last year, ten liberal organizations, including the American Civil Liberties Union and Amnesty International, wrote a letter to the President expressing their concern over the targeted killing policy. Among the issues raised was a more open and robust discussion of the legal justification for the policy, and a request that Department of Justice documents be released to the public. Given the opposition these groups have expressed to the drone policy, I’m surprised we haven’t heard any of them weigh in on Professor Barron’s nomination.  

Based on my review of his record, I believe he would have no problem crafting opinions that are designed to reach a desired result, rather than simply apply the law to the facts. His record suggests he doesn’t believe that judges should be bound by the judicial restraints we expect of judges. For example, when reviewing a 2006 opinion authorized by Chief Justice Roberts, Professor Barron criticized him for a style in which he only cited opinions and statutes and did not cite law reviews, treaties, or casebooks. He called this style “awfully cramped and technical, in which the only guideposts are past cases… lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture.”

Professor Barron told this committee that he if was confirmed he would be bound to follow precedent. But he has also said “any good lawyer knows how to distinguish a precedent, if you need to.” Presumably, any good judge can also pick and choose the precedent that he wants to follow. I am concerned that Professor Barron would cleverly tailor only precedent he agrees with when writing his legal opinions. I am also concerned whether he will faithfully follow Supreme Court precedent that he doesn’t agree with: after losing an argument in the Supreme Court, Professor Barron told an interviewer that he thinks the “Court’s decision is incorrect and that our brief had it right.”

This is particularly troublesome when you consider his unapologetic embrace of the “progressive view” of the Constitution, and his criticisms of originalism. He has praised what he calls “progressive federalism” and said it would “promote a different view of Congress’s enumerated powers” and that “Federalism is what we make of it.  Rehnquist and his conservative colleagues have been making the most of it for more than a decade.  It’s time for progressives to do the same.” Professor Barron sees leaders of a court as able to move the court in certain “directions” and says that Roberts and Stevens have different ways they want to “take the Court.” I’m concerned that Mr. Barron will have a way he would like to take the First Circuit, if he is confirmed.

I have other concerns with Mr. Barron’s record that I don’t have time to go into here, but what I have outlined here is enough to cause any Senator to think long and hard before voting for him. I’m sure Professor Barron is a fine individual, but I urge my colleagues to vote no.

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