Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Opposing the Nomination of Pamela Harris
to be Circuit Judge for the
United States Court of Appeals for the Fourth Circuit
Thursday, July 24, 2014

Today I’d like to discuss my opposition to the nomination of Professor Pamela Harris to the Fourth Circuit.   

Contemplating my vote on this nominee has been a particularly memorable process for me.  That’s because as I reviewed the professor’s writings, statements, and legal briefs, it seemed like I was reviewing the record not of one nominee but of two.  And the size of those two nominees’ records were rather unequal.  

You see, on the one hand, there’s the record of the pre-nomination Professor Harris.  That’s a record reaching all the way back to her graduation from law school in 1990.  A record rich in public statements and writings.  A record long enough to develop a distinct and stridently left-wing philosophy.  

That’s the one record.  

But then, on the other hand, there’s the record of the post-nomination Professor Harris.  It’s a dramatically shorter record.  That record only began a few weeks ago, at the professor’s confirmation hearing on June 24.  It’s a record that consists of the professor’s testimony before our Judiciary Committee and her responses to questions for the record from my colleagues and me.

It’s the record of a jurist who will be faithful to statutory text and constitutional precedent.  A record with comments that could be mistaken for those of Justice Scalia or Justice Thomas.  But what’s so unbelievable to me, is how totally at odds the record of the pre-nomination professor is with the record of the post-nomination professor.  

Like I said before, it’s as if there were two entirely distinct nominees vying for this single seat on the Fourth Circuit.  

So, for the next few minutes, I’d like to share with my colleagues some excerpts from the record of the pre-nomination Professor Harris and some excerpts from the post-nomination professor.  

There’s no question that the professor spent her entire legal career – before her nomination to the federal bench, that is – consistently and aggressively advocating for a liberal interpretation of the Constitution that is well outside the mainstream of constitutional jurisprudence.  

That’s the pre-nomination record.

But, like I said, that all changed when she testified before the committee.
Let’s start with the professor’s pre-nomination views on constitutional interpretation.  

She has spoken with unusual clarity and forthrightness on this topic.  That’s in part because she served for many years on the board of the left-wing American Constitution Society.  That ironically named group spends a lot of time developing theories of interpretation that are designed to attack and redefine key constitutional principles.  And the professor was at the forefront of those discussions for many years.  

So how exactly did the pre-nomination Professor Harris view the sources of constitutional meaning?

Here’s a statement she made before the American Constitution Society in 2008:  

“I just don’t think that any account of the Constitution that even seems to privilege the Constitution as it was originally ratified is consistent with the way we should think about the Constitution.  Yes, the values, the principles, on some level of generality, are there at the beginning, but they take their meaning—and they should take their meaning—from what comes after.”  

Let me pause here for a moment because she’s said a lot in that quote.  

First, we hear how the professor rejects out of hand the idea that the Constitution as originally ratified should guide its interpretation.  Instead, she sees only ambiguous principles.  Those principles, according to the professor, are more or less empty and meaningless by themselves.
That’s because those principles, as she formulates them, take their meaning primarily from subsequent developments.  

And then the professor goes on to specify exactly which subsequent developments she’s talking about.  She explains that her interpretive “source of legitimacy, most particularly,” is “what the People do” at what she calls “critical junctures,” including “the civil rights movement, the women’s movement, the gay rights movement.”  These movements, according to Professor Harris, “reconstitute what it is we’re talking about when we talk about American constitutional tradition, when we say words like equality and liberty, when we change what they mean.”

Let me pause again to unpack that.  

First, the professor explicitly identifies for herself a “source of legitimacy” to be used in constitutional interpretation.  It’s not the constitution’s text.  Nor its structure.  Nor its history.  Nor its original intent.  Nor any other established interpretive method.  

It’s something outside the law altogether.

It’s social and political movements.  

Or, let me put it this way.

They’re the social and political movements that Professor Harris chooses for inspiration.

They’re the social and political movements that Professor Harris decides have risen to constitutional status.  

It’s these extra-legal sources that she says change the scope of the Constitution’s guarantees of equality and liberty.  

I’m not making this up.

The professor literally said that.

“We change what they mean.”  

So, who’s the “we” she’s talking about?  I suspect it’s the people in social movements that Professor Harris finds particularly inspirational.  I suspect it’s also the people who share her views that the constitution’s original guarantees are merely empty vessels that can be filled with whatever political or social ideas a judge might “privilege,” as Professor Harris puts it.  
In other contexts, Professor Harris has said that the meaning of the Constitution changes based on things like “an evolving and changing public understanding,” “the consequences of constitutional rulings,” and “the circumstances on the ground.”  

Note the absence of any legal standards in that list.  

Let me finish up with the professor’s quote.  

“I think that constitutional legitimacy comes, even in part, from the fact that it does reflect these social movements and what happens at these particular moments when the people come together and force this kind of change in the way we think about ourselves and what it means to be American.   And I think there’s something about originalism at least as it’s commonly understood that’s inconsistent with that.  And that’s why I’m not an originalist, even now.”  

So let’s recap.  

The Constitution derives some of its “legitimacy,” as the professor puts it, from social movements at “particular moments.”  

Again, how are we to know which “particular moments” rise to the level of constitutional significance?  

We’ll have to ask Professor Harris, because there is absolutely no principled or objective way of making that kind of decision.  And it’s certainly not a legal decision.  It’s a matter of personal preference.  

What else can we take away from the quote?  
Well, we also learned that the Professor is definitely not an originalist.  She literally says: “I’m not an originalist.”  

Keep that in mind.

Let’s turn now to what the post-nomination Professor Harris thinks about constitutional interpretation.  

As I said before, the contrast is so striking that it’s almost like we’re dealing with two different nominees.

Does the post-nomination professor still think constitutional principles change with the times?  In her responses to my questions for the record, Professor Harris wrote:

“I do not believe that the Constitution’s provisions and principles change or evolve, other than by the amendment process of Article Five.  They are fixed and enduring and judges are not free to change them whether by incorporating public preferences or their own policy views.”  

That’s really quite astounding – it’s like a night and day difference with the judicial philosophy I previously quoted.  And it’s totally incompatible with that philosophy which Professor Harris has developed for decades.
 
Now, suddenly, we hear that the professor believes in unchanging and fixed – dare I say, eternal – principles that cannot be changed except by an Article Five amendment.  

No more social movements.  

No more “critical junctures.”  

No more “what the People do.”  

No more “privileging” or “reconstituting” constitutional meaning.  

No, now the meaning’s fixed.  

And all that other stuff she said is in the rearview mirror.  

Now judges are forbidden from incorporating public preferences to change constitutional principles.  Public preferences as interpreted by the judge, of course.  A few years ago, that was at the very core of her interpretive philosophy!  

Here’s another post-nomination quote.  

“I would never suggest that a justice of the Supreme Court, or any judge, should change his or her opinions based on public opinion.  That is not the way I view the role of the judge.”  

The post-nomination Professor Harris added that courts should be “especially cautious on social issues when the political branches and political institutions are deeply and rapidly engaged in those issues” and “leave as much to the democratic process.”  

That’s also a massive sea-change.  

For the pre-nomination professor, the democratic process went hand-in-glove with judicial decisionmaking.  Now, however, with a confirmation on the line, the post-nomination professor sees a wall between politics and the courts.  

Let’s return to the pre-nomination Professor Harris for another quote on her approach to judicial decisionmaking.  Here’s what she candidly told a gathering of the American Constitution Society about that in 2009.  

“I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution.  It’s pretty close to where I am.”  

So, where exactly is the Constitution in her view?  She tells us flatly: “I think the Constitution is a profoundly progressive document.  I think it’s born of a progressive impulse.”  

Well, if that’s where the Constitution is, where then is the professor?  

Again, there’s no mystery here because she’s very upfront with that answer.  

“I’m a profoundly liberal person so we” – she’s talking about herself and the Constitution – “we match up pretty well.  I make no apologies for that.”  

Think for a moment about just what the professor is saying there.  I, frankly, cannot recall a judicial nominee who has actually expressed her belief that the Constitution embodies the nominee’s personal political philosophy.  But that’s exactly what Professor Harris does in that statement.  

Think about how she put it: the Constitution is pretty much where she is as a liberal.  It’s almost in sync with her own views.  That was the crystal-clear explanation of how the pre-nomination Professor Harris viewed her beliefs and the Constitution.  

So what does the post-nomination Professor Harris have to say?  At her hearing, she told our Judiciary Committee:

“I do not believe that it is the view of a judge ever to import his or her personal values into judicial decision making.”  

Again, the post-nomination statement is strikingly at odds with the pre-nomination views.  

Or, perhaps we should actually take the post-nomination statement at face value.  After all, Professor Harris doesn’t need to import her own views when interpreting the Constitution.  
As she explained, it just happens to be almost as liberal as she is already, so that’s a fortunate coincidence, I suppose.  

What about the professor’s views on particular judicial philosophies?  

Remember earlier her pre-nomination criticism of originalism and her assertion that she’s definitely not an originalist?  That’s out the window now, too.   

Here’s the post-nomination testimony: “I do not reject originalism as an interpretive method.”

Those are just a few of the contradictory quotations from pre- and post-nomination Professor Harris that illustrate striking, almost unbelievable inconsistencies, in her judicial philosophy and understanding of constitutional interpretation.  

The quotations also point to issues that are deeply troubling about this nominee.  

Let me discuss a few of them.

First, this nominee has made many statements suggesting that, if confirmed, she would pursue a results-oriented, whatever-it-takes approach to deciding cases.  From this nominee’s past commentary, we know that not only is she a devoted liberal but that she also would strive to move the courts leftward to suit her ideological preferences.  

So, for example, in discussing the Warren Court, the professor said that she wondered “whether we almost have, by now, a stunted sense of what the legal choices really are, what really is a liberal legal outcome.”  

Just listen to that phrasing again: “liberal legal outcome.”  

Is there any doubt that this nominee views the courts as a third political branch?  

Let me continue with the quote.  

“If Chief Justice Warren came out a certain way, that must be as liberal as it gets.  That’s not right!  I think that we’ve stunted the spectrum of legal thought in a way that removes the possibility that there could have been more progressive readings of the Fourth Amendment and the Fifth Amendment.”  

It seems that Professor Harris doesn’t think the Warren Court was nearly liberal enough.  That’s a fairly astonishing view in itself.

I often hear liberals and some of our nominees talk about a so-called living Constitution.  Well, it’s clear to me that this nominee sees not a living Constitution, but a profoundly political Constitution.  

She’s said so herself.  

She sees judges as proxies engaged in a tug-of-war who use judicial power as an instrument of political control.  Her statements, as I explained a few minutes ago, also are a clear indication of her belief that the role of a judge is to reflect those political and social forces.  

For example, speaking about Justice Kennedy’s stance on gay marriage, the professor said that the Justice “should be changing the same way the whole country is changing.”  That is the language of politics, not of law.  She’s said so many things to this effect, I find myself asking: will this nominee even consider the law when deciding a case or is it all progressive outcomes, social movements, and critical junctures?

So it’s clear that there are two Professor Harrises.  

The pre-nomination professor and the post-nomination professor.  

Let’s not be naïve about which Professor Harris will sit on the federal bench, for life, if she is confirmed.  Because no one else is being naïve about that question.

Take, for example, an article published last May in the New Republic gushing that the professor is a “champion of liberal jurisprudence” and will be a “sympathetic vote for liberal causes.”  We know that will be the case from the pre-nomination professor’s long record of impassioned liberal advocacy.  The article also observes, accurately in my view, that Professor Harris “clearly has an interest in using her voice to project a liberal jurisprudential perspective.”  

That pretty much sums it up.  

All anyone needs to do to confirm that claim is to read the pre-nomination professor’s public statements.  They’re all out there.  It’s not a secret what this nominee thinks about the law and the courts.  And it’s no secret what kind of a judge this nominee will be if she takes the bench.

So, it seems pretty clear to me that the timing of the vote on this nominee is not coincidental.  
We know this because of yesterday’s Obamacare decisions handed down by the D.C. Circuit and the Fourth Circuit.  

Last November, when the Majority changed the cloture rule on judicial nominees, I told my colleagues that the decision was a blatant attempt to stack the D.C. Circuit with judges who would view sympathetically the administration’s arguments in upcoming Obamacare lawsuits.  

The other side dismissed the notion that the rules change was designed to tilt the courts in the President’s direction and salvage Obamacare.  
Well, as we all know, a three-judge panel of the D.C. Circuit decided the Halbig case yesterday, against the administration.  

And it only took the administration about an hour to announce that it would seek rehearing by the en banc D.C. Circuit, which now includes four of the president’s nominees.  

As we all know, the Majority Leader rushed through three of those four immediately after the rules change.  And yesterday the Majority Leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear.

He said: “I think if you look at simple math, it does.”  

So, the Majority Leader isn’t even trying to disguise his intent any more.

And that’s exactly what’s happening here with this nominee, on her way to the Fourth Circuit.  This nomination is being considered ahead of other circuit nominees on the Executive Calendar.  

Why is this Fourth Circuit nomination being fast-tracked?

Why fast-track one of the most liberal nominees we have considered to date?  

If history is any guide, the answer is simple.

It’s all about saving Obamacare.

The other side wants to stack the Fourth Circuit just like they did the D.C. Circuit.  Because the Fourth Circuit hears a disproportionate number significant cases involving federal law and regulations, just like the D.C. Circuit.

So my colleagues should understand that a vote for this nominee is also a solid vote for Obamacare as the cases make their way through that court.     

I’m voting no on this nominee and urge my colleagues to do the same.    

-30-Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Opposing the Nomination of Pamela Harris
to be Circuit Judge for the
United States Court of Appeals for the Fourth Circuit
Thursday, July 24, 2014

Today I’d like to discuss my opposition to the nomination of Professor Pamela Harris to the Fourth Circuit.   

Contemplating my vote on this nominee has been a particularly memorable process for me.  That’s because as I reviewed the professor’s writings, statements, and legal briefs, it seemed like I was reviewing the record not of one nominee but of two.  And the size of those two nominees’ records were rather unequal.  

You see, on the one hand, there’s the record of the pre-nomination Professor Harris.  That’s a record reaching all the way back to her graduation from law school in 1990.  A record rich in public statements and writings.  A record long enough to develop a distinct and stridently left-wing philosophy.  

That’s the one record.  

But then, on the other hand, there’s the record of the post-nomination Professor Harris.  It’s a dramatically shorter record.  That record only began a few weeks ago, at the professor’s confirmation hearing on June 24.  It’s a record that consists of the professor’s testimony before our Judiciary Committee and her responses to questions for the record from my colleagues and me.

It’s the record of a jurist who will be faithful to statutory text and constitutional precedent.  A record with comments that could be mistaken for those of Justice Scalia or Justice Thomas.  But what’s so unbelievable to me, is how totally at odds the record of the pre-nomination professor is with the record of the post-nomination professor.  

Like I said before, it’s as if there were two entirely distinct nominees vying for this single seat on the Fourth Circuit.  

So, for the next few minutes, I’d like to share with my colleagues some excerpts from the record of the pre-nomination Professor Harris and some excerpts from the post-nomination professor.  

There’s no question that the professor spent her entire legal career – before her nomination to the federal bench, that is – consistently and aggressively advocating for a liberal interpretation of the Constitution that is well outside the mainstream of constitutional jurisprudence.  

That’s the pre-nomination record.

But, like I said, that all changed when she testified before the committee.
Let’s start with the professor’s pre-nomination views on constitutional interpretation.  

She has spoken with unusual clarity and forthrightness on this topic.  That’s in part because she served for many years on the board of the left-wing American Constitution Society.  That ironically named group spends a lot of time developing theories of interpretation that are designed to attack and redefine key constitutional principles.  And the professor was at the forefront of those discussions for many years.  

So how exactly did the pre-nomination Professor Harris view the sources of constitutional meaning?

Here’s a statement she made before the American Constitution Society in 2008:  

“I just don’t think that any account of the Constitution that even seems to privilege the Constitution as it was originally ratified is consistent with the way we should think about the Constitution.  Yes, the values, the principles, on some level of generality, are there at the beginning, but they take their meaning—and they should take their meaning—from what comes after.”  

Let me pause here for a moment because she’s said a lot in that quote.  

First, we hear how the professor rejects out of hand the idea that the Constitution as originally ratified should guide its interpretation.  Instead, she sees only ambiguous principles.  Those principles, according to the professor, are more or less empty and meaningless by themselves.
That’s because those principles, as she formulates them, take their meaning primarily from subsequent developments.  

And then the professor goes on to specify exactly which subsequent developments she’s talking about.  She explains that her interpretive “source of legitimacy, most particularly,” is “what the People do” at what she calls “critical junctures,” including “the civil rights movement, the women’s movement, the gay rights movement.”  These movements, according to Professor Harris, “reconstitute what it is we’re talking about when we talk about American constitutional tradition, when we say words like equality and liberty, when we change what they mean.”

Let me pause again to unpack that.  

First, the professor explicitly identifies for herself a “source of legitimacy” to be used in constitutional interpretation.  It’s not the constitution’s text.  Nor its structure.  Nor its history.  Nor its original intent.  Nor any other established interpretive method.  

It’s something outside the law altogether.

It’s social and political movements.  

Or, let me put it this way.

They’re the social and political movements that Professor Harris chooses for inspiration.

They’re the social and political movements that Professor Harris decides have risen to constitutional status.  

It’s these extra-legal sources that she says change the scope of the Constitution’s guarantees of equality and liberty.  

I’m not making this up.

The professor literally said that.

“We change what they mean.”  

So, who’s the “we” she’s talking about?  I suspect it’s the people in social movements that Professor Harris finds particularly inspirational.  I suspect it’s also the people who share her views that the constitution’s original guarantees are merely empty vessels that can be filled with whatever political or social ideas a judge might “privilege,” as Professor Harris puts it.  
In other contexts, Professor Harris has said that the meaning of the Constitution changes based on things like “an evolving and changing public understanding,” “the consequences of constitutional rulings,” and “the circumstances on the ground.”  

Note the absence of any legal standards in that list.  

Let me finish up with the professor’s quote.  

“I think that constitutional legitimacy comes, even in part, from the fact that it does reflect these social movements and what happens at these particular moments when the people come together and force this kind of change in the way we think about ourselves and what it means to be American.   And I think there’s something about originalism at least as it’s commonly understood that’s inconsistent with that.  And that’s why I’m not an originalist, even now.”  

So let’s recap.  

The Constitution derives some of its “legitimacy,” as the professor puts it, from social movements at “particular moments.”  

Again, how are we to know which “particular moments” rise to the level of constitutional significance?  

We’ll have to ask Professor Harris, because there is absolutely no principled or objective way of making that kind of decision.  And it’s certainly not a legal decision.  It’s a matter of personal preference.  

What else can we take away from the quote?  
Well, we also learned that the Professor is definitely not an originalist.  She literally says: “I’m not an originalist.”  

Keep that in mind.

Let’s turn now to what the post-nomination Professor Harris thinks about constitutional interpretation.  

As I said before, the contrast is so striking that it’s almost like we’re dealing with two different nominees.

Does the post-nomination professor still think constitutional principles change with the times?  In her responses to my questions for the record, Professor Harris wrote:

“I do not believe that the Constitution’s provisions and principles change or evolve, other than by the amendment process of Article Five.  They are fixed and enduring and judges are not free to change them whether by incorporating public preferences or their own policy views.”  

That’s really quite astounding – it’s like a night and day difference with the judicial philosophy I previously quoted.  And it’s totally incompatible with that philosophy which Professor Harris has developed for decades.
 
Now, suddenly, we hear that the professor believes in unchanging and fixed – dare I say, eternal – principles that cannot be changed except by an Article Five amendment.  

No more social movements.  

No more “critical junctures.”  

No more “what the People do.”  

No more “privileging” or “reconstituting” constitutional meaning.  

No, now the meaning’s fixed.  

And all that other stuff she said is in the rearview mirror.  

Now judges are forbidden from incorporating public preferences to change constitutional principles.  Public preferences as interpreted by the judge, of course.  A few years ago, that was at the very core of her interpretive philosophy!  

Here’s another post-nomination quote.  

“I would never suggest that a justice of the Supreme Court, or any judge, should change his or her opinions based on public opinion.  That is not the way I view the role of the judge.”  

The post-nomination Professor Harris added that courts should be “especially cautious on social issues when the political branches and political institutions are deeply and rapidly engaged in those issues” and “leave as much to the democratic process.”  

That’s also a massive sea-change.  

For the pre-nomination professor, the democratic process went hand-in-glove with judicial decisionmaking.  Now, however, with a confirmation on the line, the post-nomination professor sees a wall between politics and the courts.  

Let’s return to the pre-nomination Professor Harris for another quote on her approach to judicial decisionmaking.  Here’s what she candidly told a gathering of the American Constitution Society about that in 2009.  

“I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution.  It’s pretty close to where I am.”  

So, where exactly is the Constitution in her view?  She tells us flatly: “I think the Constitution is a profoundly progressive document.  I think it’s born of a progressive impulse.”  

Well, if that’s where the Constitution is, where then is the professor?  

Again, there’s no mystery here because she’s very upfront with that answer.  

“I’m a profoundly liberal person so we” – she’s talking about herself and the Constitution – “we match up pretty well.  I make no apologies for that.”  

Think for a moment about just what the professor is saying there.  I, frankly, cannot recall a judicial nominee who has actually expressed her belief that the Constitution embodies the nominee’s personal political philosophy.  But that’s exactly what Professor Harris does in that statement.  

Think about how she put it: the Constitution is pretty much where she is as a liberal.  It’s almost in sync with her own views.  That was the crystal-clear explanation of how the pre-nomination Professor Harris viewed her beliefs and the Constitution.  

So what does the post-nomination Professor Harris have to say?  At her hearing, she told our Judiciary Committee:

“I do not believe that it is the view of a judge ever to import his or her personal values into judicial decision making.”  

Again, the post-nomination statement is strikingly at odds with the pre-nomination views.  

Or, perhaps we should actually take the post-nomination statement at face value.  After all, Professor Harris doesn’t need to import her own views when interpreting the Constitution.  
As she explained, it just happens to be almost as liberal as she is already, so that’s a fortunate coincidence, I suppose.  

What about the professor’s views on particular judicial philosophies?  

Remember earlier her pre-nomination criticism of originalism and her assertion that she’s definitely not an originalist?  That’s out the window now, too.   

Here’s the post-nomination testimony: “I do not reject originalism as an interpretive method.”

Those are just a few of the contradictory quotations from pre- and post-nomination Professor Harris that illustrate striking, almost unbelievable inconsistencies, in her judicial philosophy and understanding of constitutional interpretation.  

The quotations also point to issues that are deeply troubling about this nominee.  

Let me discuss a few of them.

First, this nominee has made many statements suggesting that, if confirmed, she would pursue a results-oriented, whatever-it-takes approach to deciding cases.  From this nominee’s past commentary, we know that not only is she a devoted liberal but that she also would strive to move the courts leftward to suit her ideological preferences.  

So, for example, in discussing the Warren Court, the professor said that she wondered “whether we almost have, by now, a stunted sense of what the legal choices really are, what really is a liberal legal outcome.”  

Just listen to that phrasing again: “liberal legal outcome.”  

Is there any doubt that this nominee views the courts as a third political branch?  

Let me continue with the quote.  

“If Chief Justice Warren came out a certain way, that must be as liberal as it gets.  That’s not right!  I think that we’ve stunted the spectrum of legal thought in a way that removes the possibility that there could have been more progressive readings of the Fourth Amendment and the Fifth Amendment.”  

It seems that Professor Harris doesn’t think the Warren Court was nearly liberal enough.  That’s a fairly astonishing view in itself.

I often hear liberals and some of our nominees talk about a so-called living Constitution.  Well, it’s clear to me that this nominee sees not a living Constitution, but a profoundly political Constitution.  

She’s said so herself.  

She sees judges as proxies engaged in a tug-of-war who use judicial power as an instrument of political control.  Her statements, as I explained a few minutes ago, also are a clear indication of her belief that the role of a judge is to reflect those political and social forces.  

For example, speaking about Justice Kennedy’s stance on gay marriage, the professor said that the Justice “should be changing the same way the whole country is changing.”  That is the language of politics, not of law.  She’s said so many things to this effect, I find myself asking: will this nominee even consider the law when deciding a case or is it all progressive outcomes, social movements, and critical junctures?

So it’s clear that there are two Professor Harrises.  

The pre-nomination professor and the post-nomination professor.  

Let’s not be naïve about which Professor Harris will sit on the federal bench, for life, if she is confirmed.  Because no one else is being naïve about that question.

Take, for example, an article published last May in the New Republic gushing that the professor is a “champion of liberal jurisprudence” and will be a “sympathetic vote for liberal causes.”  We know that will be the case from the pre-nomination professor’s long record of impassioned liberal advocacy.  The article also observes, accurately in my view, that Professor Harris “clearly has an interest in using her voice to project a liberal jurisprudential perspective.”  

That pretty much sums it up.  

All anyone needs to do to confirm that claim is to read the pre-nomination professor’s public statements.  They’re all out there.  It’s not a secret what this nominee thinks about the law and the courts.  And it’s no secret what kind of a judge this nominee will be if she takes the bench.

So, it seems pretty clear to me that the timing of the vote on this nominee is not coincidental.  
We know this because of yesterday’s Obamacare decisions handed down by the D.C. Circuit and the Fourth Circuit.  

Last November, when the Majority changed the cloture rule on judicial nominees, I told my colleagues that the decision was a blatant attempt to stack the D.C. Circuit with judges who would view sympathetically the administration’s arguments in upcoming Obamacare lawsuits.  

The other side dismissed the notion that the rules change was designed to tilt the courts in the President’s direction and salvage Obamacare.  
Well, as we all know, a three-judge panel of the D.C. Circuit decided the Halbig case yesterday, against the administration.  

And it only took the administration about an hour to announce that it would seek rehearing by the en banc D.C. Circuit, which now includes four of the president’s nominees.  

As we all know, the Majority Leader rushed through three of those four immediately after the rules change.  And yesterday the Majority Leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear.

He said: “I think if you look at simple math, it does.”  

So, the Majority Leader isn’t even trying to disguise his intent any more.

And that’s exactly what’s happening here with this nominee, on her way to the Fourth Circuit.  This nomination is being considered ahead of other circuit nominees on the Executive Calendar.  

Why is this Fourth Circuit nomination being fast-tracked?

Why fast-track one of the most liberal nominees we have considered to date?  

If history is any guide, the answer is simple.

It’s all about saving Obamacare.

The other side wants to stack the Fourth Circuit just like they did the D.C. Circuit.  Because the Fourth Circuit hears a disproportionate number significant cases involving federal law and regulations, just like the D.C. Circuit.

So my colleagues should understand that a vote for this nominee is also a solid vote for Obamacare as the cases make their way through that court.     

I’m voting no on this nominee and urge my colleagues to do the same.    
 

-30-