Prepared Statement of Ranking Member Chuck Grassley
Senate Committee on the Judiciary
Executive Business Meeting
Thursday, July 14, 2011
Nominations
Mr. Chairman:
The advice and consent function of the Senate is a critical step in the appointment of federal judges. In the Federalist Papers, Number 76, Alexander Hamilton wrote “To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
In other words, the Senate has role in preventing the appointment of judges who are simply political favorites of the President, or of those who are not qualified to serve as federal judges.
Let me remind my colleagues of what then-Senator Obama stated about this duty. In connection with the attempted filibuster of Janice Rogers Brown, he stated:
“Now, the test for a qualified judicial nominee is not simply whether they are intelligent. Some of us who attended law school or were in business know there are a lot of real smart people out there whom you would not put in charge of stuff. The test of whether a judge is qualified to be a judge is not their intelligence. It is their judgment.”
A few months later, when debating the Alito nomination, then-Senator Obama stated:
“There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record.”
Mr. Chairman, our inquiry of the qualifications of nominees must be more than intelligence, a pleasant personality, or a prestigious clerkship. At the beginning of this Congress, I articulated my standards for judicial nominees.
I want to ensure that the men and women who are appointed to a lifetime position in the federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence.
In applying these standards, I have demonstrated good faith in ensuring fair consideration of judicial nominees. I have worked with the majority to confirm consensus nominees. However, as I have stated more than once, the Senate must not place quantity confirmed over quality confirmed. These lifetime appointments are too important to the federal Judiciary and the American people to simply rubber-stamp them. This is not a pro-forma process we are engaged in.
I am becoming increasingly concerned about some of the judicial nominations being sent to the Senate. In a few individual cases it is very troublesome. Perhaps the White House as grown tired of my observation that, for most of this President’s term, a majority of vacancies had no pending nominee. But in their rush to remedy that situation, I would hope that they would stop sending up nominees who lack appropriate experience or who otherwise fail to meet the standards I previously mentioned.
Two nominees on our agenda today, Ms. Nathan and Judge Hickey give me concern about their qualifications. They have limited experience in the courtroom. They fail to meet even the minimum qualifications that the ABA says it uses in its rating process. The ABA Standing Committee’s guidelines provide that, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.” The ABA committee also considers “substantial courtroom and trial experience as a lawyer or trial judge is important.”
In Ms. Nathan’s case, she graduated from law school only eleven years ago, and has been admitted to practice law for only 8 years. Her questionnaire states she served as associate counsel on approximately six trial court litigation matters. Most of the significant litigation she lists is from her current position in the New York Solicitor General’s Office.
Judge Hickey has served as a state court judge for less than a year. Her questionnaire indicates she has presided over two criminal bench trials – a speeding/DWI case and a second speeding case. Prior to that, she spent about seven years as a Senior Law Clerk in the Western District of Arkansas. Early in her career, 1981 – 1984, she was a staff attorney with Murphy Oil Company. Altogether I am not sure we can get to twelve years of legal/judicial experience. Furthermore, Judge Hickey has no litigation experience – she has tried no cases.
I want to be very clear here – I am not denigrating the career choices of these nominees, nor am I arguing that the experience they have is unrelated to service as a federal judge. What I am saying is they do not have enough experience. Being appointed a federal District Judge should be the capstone of an illustrious career. Federal judges should have significant courtroom and trial experience as a litigator or judge. This is not the place for on-the-job training.
Despite my concerns regarding the qualifications of these two nominees, I will not block or delay the process of reporting them out of committee. I will vote to report them out, with the understanding that there will be a second opportunity to fully examine their records. I will not deprive the full Senate from having the opportunity to express its will on these nominations.
A significant factor in reaching this conclusion is the home state Senator support for these nominees. That is not the end of my inquiry, but it is enough for now to move forward on these nominations.
I understand fully how Senators may reach a different conclusion. There are other factors to consider in whether or not to ultimately confirm these nominations. I am concerned about Ms. Nathan’s views on the death penalty, Second Amendment, on the use of foreign law, and on the appropriate handling of terrorism cases.
Similarly, I was troubled by a response of Ms. Hickey at her confirmation hearing. Given her lack of experience, I asked her if there were any skills or experiences that she did not have, that she thought were necessary for a federal judge to have. I asked her how she planned to make up for any lack of experience. I was surprised by her answer. She stated “I do not believe that I have any skills that are lacking to be a District judge.”
An important attribute of the judiciary is an understanding of one’s limitations and a sense of humility. Clearly that was not reflected in her response. Most nominees who come before us understand their limitations and are eager to utilize all resources to improve their knowledge, skills and ability to handle the rigorous and complex docket of a federal judge.
So, Mr. Chairman, I will vote to report these nominations. I do so with reluctance. But I also do so with the hope that these individuals, if ultimately confirmed, will understand their limitations and work diligently to overcome them. I hope they become good judges.
In the meantime, I ask the President to refrain from sending us nominees who have limited experience, or who fail to meet the standards I have previously discussed.
I thank the chair and my colleagues.
The Second Chance Reauthorization Act
Mr. Chairman, the vast majority of prisoners will someday be released. It is worthwhile to provide effective assistance to these offenders to reduce the chances that they will commit additional crimes upon reentering society.
I appreciate that our staffs have worked together to try to reach agreement on this bill. I regret that agreement was unable to be reached. I expect to vote against reporting this bill.
I will be offering amendments to try to improve the bill in Committee. There is always hope that a bill such as this can be improved. But its flaws are many.
We are in tight budgetary times. Even if we were not, we should not authorize additional money for programs that have not been demonstrated to be effective. This is the case with the Second Chance Act.
Spending money on prisoner reentry programs is not a new idea. If there were effective ways to reduce recidivism, it would be cost-effective to fund them. But a vote for this bill is a vote to fund programs that have not been demonstrated to be effective.
Just last year, the Department of Justice Office of Inspector General issued a report that audited the Office of Justice Programs’ previous prisoner reentry grant programs. The Inspector General found that OJP did not establish an effective system for monitoring those grants or whether they were meeting program goals. There was no documentation of grant monitoring activities. OJP did not require grantees to identify the baseline recidivism rates that would be needed to calculate whether the programs reduced recidivism. Therefore, neither OJP nor the OIG could evaluate effectiveness.
In 2008, Congress passed the Second Chance Act. Apart from funding prisoner reentry programs, the goal of the law was to gather information on which programs were effective. As we sit here today, being asked to reauthorize this bill, there is very little data available on whether these programs are effective. Certainly, NIJ has produced no such data. Any partial data is suspect because so little time has elapsed to see whether prisoners have reoffended. It will be 2014 at the earliest before meaningful data is generated.
Yet, we are being asked to reauthorize this law to find out which programs work. As the old song goes, “It seems to me I’ve heard that song before.”
When we do not know what works, spending money on programs to fight recidivism is not the same as spending money on actually reducing reoffending. Moreover, the funding levels authorized in this bill are enormous, about $600 million through 2016.
Priorities need to be set in this environment. The programs under the Second Chance Act have never been funded in an amount more than $100 million. The current fiscal year’s appropriation is $83 million. House appropriators are funding Second Chance at $70 million for next year. In light of all the pressures on the budget, the authorization amounts contained in this bill are grossly excessive – more than twice the appropriations. I have other concerns about this bill as well.
At the appropriate time, Mr. Chairman, I will be offering a number of amendments that I believe would improve the bill.
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