Mr. President,
Again, we are moving forward under the regular order and procedures of the Senate. This year, we have been in session for about 35 days, including today. During that time we will have confirmed 14 judges. That is an average of better than one confirmation for every 3 days. With the confirmations today, the Senate will have confirmed nearly 75 percent of President Obama’s Article III judicial nominations.
Despite the progress we are making, we still here complaints about the judicial vacancy rate. We are filling those vacancies. But again, I would remind my colleagues that of the 81 current vacancies, 47 have no nominee. That is 58 percent of vacancies with no nominee.
So, I have to respond to the complaints that we hear in the Senate or from the White House that somehow the Senate is not moving fast enough on nominations. You can’t have a vote in the United States Senate to fill some vacancy where there’s no nominee up here from the President of the United States. If the President of the United States wants us to act any further, he needs to get the job done – get the nominees up here. So, of course, as you can tell, I’m growing a bit weary of the vacancy rate being blamed on Senate Republicans.
I have spoken on numerous occasions about the seriousness with which I undertake the advice and consent function of the Senate, as I know we all do. Our inquiry of the qualifications of nominees must be more than intelligence, a pleasant personality, an inspirational life story, or a prestigious clerkship.
When I became ranking member on the Senate Judiciary Committee, 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.
In fact, of the 138 judges confirmed so far, I have voted in favor of over 90 percent of President Obama’s judicial nominees. This includes supporting 100 of the 108 District Judges we have confirmed during President Obama’s term of office.
However, today on the agenda is a nominee that in my judgment does not measure up to the criteria I have outlined. Ms. Miranda Du was nominated to be United States District Judge for the District of Nevada on August 2, 2011.
We have heard Ms. Du’s life story - leaving Vietnam following the war; living in refugee camps with her family; coming to America at a young age; obtaining an education and establishing herself in a respectable career. She has risen above disadvantages that most of us can’t imagine. This is a great success story, and we congratulate her for these notable accomplishments.
However, this is not sufficient for confirmation to a lifetime appointment as a federal judge. We all can think of similar success stories. Miguel Estrada immigrated to America at a young age, graduated from Harvard, clerked at the Supreme Court and had a prestigious legal career. His confirmation to the federal court was defeated by a Democratic filibuster.
Justice Thomas grew up in humble circumstances, rose above his disadvantaged background to graduate from Yale law school, faced discrimination in legal hiring but went on to an illustrious public service career. He was barely confirmed to the Supreme Court.
Janice Rogers Brown, an African-American female, was the daughter of sharecroppers. Overcoming these circumstances, she graduated from UCLA School of law – working her own way through while being a single mother. She served in California state government and on the California Supreme Court. Her federal judicial nomination faced a Democratic filibuster before she was finally confirmed by a vote of 56-43.
I bring up these examples to point out that many individuals we consider for judicial positions have overcome difficult circumstances in life. Most are examples of the American dream. Some are confirmed, others are not. But in each case, the gender or race of the individual, or the particular life story was not part of the consideration of whether or not to confirm to a lifetime appointment. So while I think Ms. Du’s accomplishments are admirable, they are not the basis for evaluating her qualifications to serve as a federal district judge.
The relevant factors for me are her ability and professional competence. In those areas, she does not meet the standards I would consider necessary for a federal judge.
I would note that the ABA has rated Ms. Du with a partial “Not Qualified rating.” She states she was “involved in” four jury trials and has limited criminal law experience. As I have stated before, this is no place for on-the-job training.
A mere sixteen legislative days after her nomination, Ms. Du appeared at her nominations hearing. At that hearing she was asked about a case in which she was lead counsel. Ms. Du was the partner in charge of handling the case of Woods v. Truckee Meadows Water Authority.
In that case she filed a motion to dismiss the original complaint. But, she failed to raise the lack of subject matter jurisdiction as a reason to dismiss the case. The court, therefore, denied her motion. Ms. Du then filed a third-party complaint against the local union. But, the Union’s counsel recognized that there was no subject matter jurisdiction. Therefore, they advised Ms. Du, in a six-page letter that the court lacked subject matter jurisdiction. The Union, therefore, warned Ms. Du that they would seek sanctions if Ms. Du did not withdraw her complaint. Rather than recognizing her mistake and filing a second motion to dismiss, Ms. Du went forward with the third-party complaint. In response, the Union proceeded exactly as they said they would: they filed a motion to dismiss and filed for sanctions.
The District Court agreed there was no subject matter jurisdiction and dismissed the action. In addressing the sanctions issue, the court stated “Having reviewed the record and considered arguments of counsel at the hearing on this motion, the court finds that … TMWA’s counsel acted recklessly … .” Let me remind you, TMWA’s counsel was the nominee, Ms. Du – the court said she acted recklessly. The court went on to state that TMWA (referring to Ms. Du’s client) “has not advanced a legitimate, good faith reason for bringing the Union into this litigation.” Accordingly, the court concluded sanctions were warranted.
At her hearing, Senator Lee asked her if she agreed with the court’s assessment that her conduct was reckless. She stated that she did not believe that she was reckless.
In written follow-up questions I asked her again about the court finding her reckless and she responded that she disagreed with the Magistrate Judge’s finding. Let me be clear - the finding of reckless action on her part was not a mere observation of the court, but a legal finding. That finding allowed the court to award sanctions pursuant to 28 U.S.C. 1927.
I was troubled that she would fail to acknowledge the finding of the court that she was reckless. I think this demonstrates a lack of humility, which is an essential element of being a federal judge. I understand attorneys may make mistakes or have differing views on litigation strategy. However, this is not the case in this situation. Ms. Du was put on notice of her flawed motion, was warned of the consequences of proceeding, but went forward anyway. That is why the court found her to be “reckless.” Her subsequent attempt to downplay this serious matter goes against the standards for judicial nominees which I previously discussed.
There is another substantive legal element that concerns me as well. That is her apparent lack of knowledge or disregard for the law regarding subject matter jurisdiction. Senator Lee’s questions at the hearing on this issue I think demonstrate a lack of ability or professional competence.
Her written responses to Questions for the record failed to adequately explain her legal reasoning or to clarify the issues raised at her hearing.
Accordingly, Senate Republicans on the Senate Judiciary Committee unanimously opposed reporting her nomination to the Senate.
I would note that more than two months after her hearing, and more than one month after she was listed on the Executive Calendar, Ms. Du sent a letter addressed to me and Senator Lee. In that letter she apologized for her earlier unclear explanations and for her misstatements. While I appreciated her response to me, the doubts I have about her ability and competence remain. Therefore I cannot support this nomination and urge a no vote on this nominee.
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