Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Executive Business Meeting
On the Nominations of:
Pamela Harris, to be United States Circuit Judge for the Fourth Circuit
Pamela Pepper, to be United States District Judge for the Eastern District of Wisconsin
Brenda K. Sannes, to be United States District Judge for the Northern District of New York
Patricia M. McCarthy, to be Judge of the United States Court of Federal Claims
Jeri Kaylene Somers, to be Judge of the United States Court of Federal Claims
Thursday, July 17, 2014

Mr. Chairman,
On today’s agenda we have a number of judicial nominations that are ripe for consideration.  I believe we can consider the district court nominees and the two nominees for the Court of Federal Claims by voice vote.

I’d like to speak for just a couple minutes on the nomination of Professor Harris to the Fourth Circuit and explain why I will vote no.

I’ve looked closely at Professor Harris’s record. And I’ve closely examined the many public statements about the Constitution and constitutional interpretation that she’s made over the years.
There is no question that Professor Harris has spent her legal career consistently and aggressively advocating for left-wing constitutional theories.

At least, that was her approach before she was nominated to the federal bench.  Because her views on constitutional interpretation have been so clear and unapologetic, I expected Professor Harris to embrace and defend her record during her hearing.

But she didn’t. Instead, she obscured her record, evaded my questions, and offered statements to the committee that I view as inconsistent with her record.

Let me give you a couple examples:

While on academic panels discussing constitutional interpretation, Professor Harris has made consistent claims about how judges should look to values and norms “whose meaning may change over time . . . in response to changed understandings about what a word like equality really means.”

She has explicitly rejected originalism.

She argued, “I just don’t think that any account of the Constitution that even seems to—even seems to—privilege the Constitution as it was originally ratified . . . [is] consistent with the way we most people do—and the way we should—think about the Constitution. . . . And that’s why I’m not an originalist, even now.”

This was a standard claim she made about how the Constitution should be interpreted.

And, in 2009 she said that she is often asked where her “personal policy preferences diverge from the Constitution,” she said: “I think the Constitution is a profoundly progressive document. . . . I’m a profoundly liberal person so we match up pretty well.”

So, when I questioned Professor Harris about these statements, I expected that, while I would disagree with her assessment, we would have a frank conversation about her views of the Constitution.

But despite how clearly she has embraced these views in the past, during her hearing she refused to embrace, endorse, or defend those same views.  Instead, she offered statements that appear to flatly contradict her earlier statements.

Here are a couple of examples of what she said to me:

She told me that she now believes that “in issuing a decision, whether narrow or broad, the role of any court is to apply law and precedent to the facts, without regard to public opinion on the underlying issue or whether that decision will be popularly received.”

And, despite her earlier statements explaining unequivocally why she rejects originalism she told me: “I do not reject originalism as an interpretive method.”

And, contrary to her earlier statements discussing the “importance of interpreting the Constitution in light of the evolving values of American society”, she now says “I do not believe that the Constitution’s provisions and principles change or evolve, other than by the amendment process of Article V; they are fixed and enduring, and judges are not free to change them.”

These are just a few examples of the statements she made to the Committee I find inconsistent.

So, while I find Professor Harris’ prior statements extremely troubling because they indicate a judicial philosophy that is unmoored from the constitutional text, I also find her statements to the committee troubling for a different reason. They are exceptionally difficult to square with her prior, and clearly expressed, views.

For these reasons, and others that I won’t take time to go into now, I cannot support her nomination.

We request a roll call vote on Professor Harris’ nomination.
 

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