Chuck Grassley

United States Senator from Iowa

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Judiciary Executive Business Meeting: Bolden, Bough, 2nd Chance Act, Runaway and Homeless Youth and Trafficking Prevention

Sep 18, 2014

Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Executive Business Meeting
I. Nominations
Madeline Cox Arleo, to be a United States District Judge for the District of New Jersey
Wendy Beetlestone, to be a United States District Judge for the Eastern District of Pennsylvania
Victor Allen Bolden, to be a United States District Judge for the District of Connecticut
Armando Omar Bonilla, to be a Judge of the United States Court of Federal Claims
Stephen R. Bough, to be a United States District Judge for the Western District of Missouri
David J. Hale, to be a United States District Judge for the Western District of Kentucky
Mark A. Kearney, to be a United States District Judge for the Eastern District of Pennsylvania
Joseph F. Leeson, Jr., to be a United States District Judge for the Eastern District of Pennsylvania
Gerald J. Pappert, to be a United States District Judge for the Eastern District of Pennsylvania
Gregory N. Stivers, to be a United States District Judge for the Western District of Kentucky
II. Bills
S.1690, The Second Chance Reauthorization Act of 2013
S.2646, The Runaway and Homeless Youth and Trafficking Prevention Act
S.2520, The FOIA Improvement Act of 2014
H.R.1447, The Death in Custody Reporting Act of 2013
Thursday, September 18, 2014

Mr. Chairman,

We would like to hold over two bills that appear on the Committee agenda for the first time today.  Those are S. 2520, the FOIA Improvement Act and H.R. 1447, the Death in Custody Reporting Act.

On today’s agenda we have a number of judicial nominations that are ripe for consideration.  Before we vote, I’d like to speak on a couple of them.

First, I’d like to make a few comments on Mr. Bolden’s nomination to the Connecticut District Court.  I’ll vote “no” on Victor Bolden, and I’d like to explain why.

At Mr. Bolden’s hearing, I raised the issue of a law-review article the nominee wrote a number of years ago.  The article described the nominee’s judicial philosophy and the principles he argued define good judicial decision making.  

Among those principles, the nominee wrote that judges should tip the scales in favor of particular demographic groups and should focus on the social consequences of their decisions instead of strictly following the law.  

Now, I appreciate that the nominee wrote that article back in the 1990s and that he’s done a lot of lawyering since then.  Nonetheless, I remain troubled by some general tendencies I’ve seen in the nominee’s legal work over the years that echo the themes he developed early in his career.  

Let me cite a few examples.  

In cases involving race-based school assignments, the nominee has advocated an interpretation of the 14th Amendment that has been repeatedly rejected by the courts.  Mr. Bolden’s amicus brief in the Supreme Court’s Seattle School District case from 2007 is representative of his work in this area.

Now, we all understand that Mr. Bolden was representing a client in each of those cases.  But he has spoken passionately about racial classifications and preferences outside the courtroom too.  So after reviewing his entire record I think I’ve got a good idea for where he stands on equal protection issues.

Here’s another recent example that concerns me.  

Mr. Bolden took a narrow and legally incorrect view of individual rights under the Second Amendment in an amicus brief he wrote in the Heller case.  I’ll cite a final aspect of the nominee’s record that I find troubling.

Last year, the nominee commented publicly about the Shelby County case.  In his comments, the nominee said that the Supreme Court got the case wrong, and that Justice Ginsberg’s dissent offered the right legal analysis.  

The nominee also expressed an overly expansive view of federal power in this regard and disagreed with what he characterized as an “undue emphasis on state sovereignty” by the Supreme Court.

After reviewing the nominee’s entire record, I’ve discerned a pattern of advocacy that leads me to believe that the nominee sees the federal judiciary as an instrument of social change, and not as what it should be: a neutral arbiter of justice.  Undoubtedly, Mr. Bolden is a man of integrity and has served the people of New Haven honorably as their Corporation Counsel.

Reluctantly, I’ll vote “no” on Mr. Bolden.

Another nominee we will be voting on today is Stephen Bough, who has been nominated to the Western District of Missouri.

Now, anyone who takes even a brief look at Mr. Bough’s record understands that he has chosen to define himself, first and foremost, as a political activist. I’ve always said, I don’t believe we should disqualify someone simply because they’ve been engaged in politics.  I’ve voted for countless nominees whose political beliefs are clearly quite different from my own.

So, it’s not a question of whether or not a nominee has been engaged politically.  

It’s a question of how that individual has conducted himself.  

Does he have the temperament that we look for in a federal judge?  Suppose a nominee has been extremely politically active.  That’s not a disqualifier.

But has his political dialogue been so coarse – so strident – that we, as Senators, lack confidence that he can render judgment without regard to political considerations?

At our nominations hearing last week, Senator Durbin observed – and I’m paraphrasing here – that often nominees come before the committee and urge Senators to ignore their records.  But, in my colleague’s view, and again I’m paraphrasing, the best evidence of the type of judge a nominee will be, is the lawyer they have been.  

I don’t agree with Senator Durbin on a lot of issues, but I will say this: I agree that we need to examine the type of lawyer a nominee has been, and then make a judgment call about the type of judge that nominee will be.

So, let me return to Mr. Bough’s record.  

For several years, Mr. Bough blogged routinely about local and national politics.  I’ve read his entries.  I must tell my colleagues, there can be no debate that some of the things he’s written are crude and inappropriate.  And for that reason, I’m not comfortable reading them out loud.  

I know at least some of you have reviewed those comments.  For those of you who have read his entries, like me, I’m sure you found them to be intemperate, crude, and disrespectful.

Again, I don’t take issue with a nominee who’s been engaged politically.  We’ve confirmed – and I’ve supported – a lot of very fine lawyers, who happen to have been politically engaged.

But Mr. Bough is not simply a lawyer who happens to be engaged politically.  His record is defined by his political activity, not his legal work.  Stated differently, reviewing his record, I don’t see a lawyer who happens to be involved in politics.  I see a political operative, who happens to be a lawyer.  

In fact, in a moment of candor on his blog, Mr. Bough himself recognized that serving in the judiciary wasn’t a role he was well-suited for.  

In response to a critical commenter, Mr. Bough wrote:
“You and the 3 other folks who read this blog will agree I shouldn’t be a judge.”

Truer words have never been spoken.

Putting aside the most embarrassing entries on Mr. Bough’s blog, I’m also concerned by the complaints he lodged with the Federal Election Commission.

Mr. Bough filed two complaints with the Federal Election Commission, against the same candidate.  He filed his first complaint in 2008.  The FEC dismissed this complaint with a summary opinion.  But in 2012, Mr. Bough redoubled his efforts.  He filed a 93-page complaint against the same candidate.  This time, the FEC responded with a lengthy and meticulous opinion.

The FEC’s response is striking for its strong language dismissing each of Mr. Bough’s allegations.  The opinion concluded Mr. Bough’s complaint had “no basis for its allegations.”  The FEC also criticized Mr. Bough’s allegations as “vague and speculative” and “unsupported.”  When you read the FEC’s opinion, it’s clear these allegations were frivolous.

So, at the end of the day, Mr. Bough was utilizing this government entity for the purpose of harassing a political opponent.  That’s the type of behavior we’d expect from a political operative.  Not a lifetime appointee to our federal judiciary.  

So, to sum up, let me say this.

The late Chief Justice Rehnquist was fond of referring to the federal judiciary as the “crown jewel” of our system of government because of its independence from political considerations.  Not only must Senators have confidence in a nominee’s impartiality, but future litigants as well must have confidence in a judge’s objectivity.

With respect to Mr. Bough, I believe his record indicates that he won’t be able to set aside his strongly held political beliefs.  He also has proven he lacks the temperament required of a federal judge.  And, I fear that future litigants won’t have confidence that Mr. Bough can decide cases impartially.  

I’ll be opposing Mr. Bough’s nomination, and I urge my colleagues to do the same.

We ask for a roll call vote on Bough and Bolden. I believe we can do the remaining nominees by voice vote.

Turning to the Second Chance Reauthorization Act, I want to start by saying that I do appreciate some of the changes that have been made in this bill over time, such as eliminating provisions concerning earned time credits and good time credits.  

And I know that some of the numbers have come down a bit.    

But I will oppose reporting this bill.  

The first reason is that the authorization levels remain too high.  This program is currently being funded at $65 million.  But the bill would authorize spending at levels more than 50 percent higher than that:  $100 million.

When Second Chance was originally created, the authorization was for two years only.  Repeat offending is a problem and it was worth a two-year experiment to see whether progress could be made.  The reality is that we just don’t know whether the Second Chance Act is accomplishing its goals.  

The National Institutes of Justice is conducting research into the program’s effectiveness.  The final reports from NIJ are years away.  I hope they are conducted with sound methods.  

But this bill would authorize $500 million over five years on a program we don’t know works.  That doesn’t make sense.  It brings to mind President Reagan’s famous comment, “The nearest thing to eternal life we will ever see on this earth is a government program.”
    
We need to get past the all too common view in Washington that if the federal government spends money on a goal that it necessarily means that the goal is being accomplished.  It is outcomes that matter, not inputs.  And we do not know outcomes of this program.  

We also need to be sure that taxpayer money is used wisely and honestly, as well as productively.  One of the amendments I will offer goes to this issue.
    
I know that supporters genuinely believe that the program is working, and they even say that it has reduced recidivism.  Maybe some research does show that some reentry programs work.  But nothing shows that these particular programs work.  We are kidding ourselves if we think otherwise.  Believing that the program works is the biggest faith-based part of it.
    
Let me give you an example.
 
Supporters are citing various states who have reduced recidivism rates, and they contend this is due to Second Chance.  Let’s leave aside the states that they have chosen to highlight and chosen to omit.  

Some of the states that have been highlighted are said to have reduced recidivism by 19 percent, some 6 percent and some 10 percent.  How can there be such variation if these programs are so effective?  

These figures are suspect on their face.  Some of the states define “recidivism” to mean only reincarceration while others include reconvictions that do not result in jail sentences.  Obviously, a new conviction reflects the commission of a new crime, regardless of the offender’s sentence.  Inflated  recidivism reduction rates may simply reflect that judges are not sending as many repeat criminals to jail.  

Tell the victim that Second Chance was effective where the state categorizes the crime that led to her victimization as a Second Chance recidivism success story.  That is how government breeds cynicism.  

My second amendment addresses this issue.
    
We should not spend hundreds of millions of additional taxpayer dollars on a program that we have no reason to know works.

We also have the reauthorization of the Runaway and Homeless Youth Act on the agenda as well.

Obviously, young people who are homeless are among the most vulnerable in our society.   In many cases they are victims of trafficking or have fled other tragic circumstances.  They are worthy of our support and assistance.

But it is important that we make sure that the taxpayer funds authorized for these programs are used efficiently and effectively, and are not subject to waste, fraud and abuse.

In 2008, this committee reauthorized these programs at the same funding level in this bill, on a voice vote.  

When we did so, we required that the Department of Health and Human Services issue a rule within a year that would govern the performance standards of grant recipients.  That rule wasn’t issued in 2009, when the law required it to be in place.  It wasn’t issued in 2010, 2011, 2012, or 2013.  A proposed rule wasn’t published until earlier this year, and a final rule isn’t expected to be in place until 2015.

This is simply unacceptable.  

Since the passage of Obamacare in 2010, the Department of Health of Human Services has made the time to issue 81 proposed rules and 112 final rules related to that law.  But it hasn’t had the time for one rule that would set performance standards for organizations who receive hard-earned tax payer dollars.

So I plan to offer an amendment that would put in place annual audits and other accountability measures at the Department of Health and Human Services relating to these grants.  

If it’s agreed to, I plan to vote the bill out of committee today reluctantly.  But I ask the Chairman to join with me to discover why the rule required by our 2008 reauthorization is five years overdue.  And I have other concerns about some of the changes that this bill makes to these programs.  Unless I’m confident that the Department will faithfully implement the new accountability provisions, and my other concerns are addressed, I won’t support moving forward on the floor with the bill.
 

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