Ranking Member Grassley Statement on the Nomination of Edward Chen


Prepared Floor Statement of Senator Chuck Grassley

Nomination of Edward Chen,

to be United States District Court Judge for the Northern District of California

Tuesday, May 10, 2011


Mr. President: 


I rise today to speak in opposition to Magistrate Judge Edward Chen, the President’s nominee for the Northern District of California.


Before I address Judge Chen’s nomination, I want to say a few words about our progress on judicial nominations.  At the beginning of this Congress, I told the Chairman that I would work with him to process consensus nominees at a fair and reasonable pace.  Thus far this Congress I have worked very hard, and in good faith, to do just that.  We have confirmed consensus nominees, with a particular focus on nominees in so-called judicial emergencies.  I made that commitment to the Chairman, and I have kept it. 


The Senate has been in session for only 46 days this Congress.  In that short time, we have confirmed 20 judges.  We confirmed three judges last week alone.  In fact, thus far we have taken positive action on 43 of the 71 nominees submitted this Congress – 20 have been confirmed; 13 have been reported out of committee; and 10 have had hearings.  All totaled, we have taken positive action on 61 percent of the judicial nominees submitted by the President during this Congress. 


Despite my good faith efforts, my colleagues from the other side continue to accuse us of not moving quickly enough.  And, I might add, the White House Counsel continues to state publicly that we are not moving fast enough.  Recently, the President’s top lawyer spoke to a group of American Bar Association (ABA) members and asked them, “to bring home the impact or the effects of gridlock.”  The President’s lawyer neglected to tell the ABA that the problem begins with the White House.  The President has failed to send to the Senate a nomination for 50 percent of the current judicial vacancies.  This statistic certainly does not indicate a sense of urgency on the part of the White House. 


Notwithstanding my efforts to work together, the majority insists on taking detours and throwing up roadblocks to this cooperative effort.   For example, last week, after moving forward with two district court judges, the Majority Leader filed cloture on one of President Obama’s most controversial nominees, Mr. Jack McConnell.  And now this week, the Majority Leader has turned to two more of the President’s controversial nominees.  Last night we defeated a cloture petition for Mr. Cole, the President’s nominee for Deputy Attorney General.  And today, we turn to Judge Chen. 


Of course, there are non-controversial nominees who the Senate could turn to.  We could confirm additional district judges, as we have been doing.  But rather than continuing to move forward with consensus nominees, the other side has chosen to turn to the President’s most controversial nominees. 


I must say, this makes it extremely difficult to continue to work in a good faith effort to move forward on non-controversial nominees.  From our perspective, it appears that the more we try to work with the majority, the more we are accused of not moving fast enough.  The more we try to move consensus nominees, the more the other side insists on moving the President’s most objectionable nominees.


Judge Chen is not a consensus nominee.  His nomination was considered during the last Congress, and was voted out of committee on a party line vote.  The nomination was returned to the President on more than one occasion.   Despite our repeated and consistent opposition, the nomination was resubmitted this year.  Again, it was reported out on a 10-8 party line vote.  Yet, despite the unanimous Republican opposition to this nominee, we have agreed to a short time agreement, rather than engage in extended debate on this nomination. 


With that, I have some substantive remarks to make regarding Judge Chen’s nomination.  At the outset, let me emphasize the basis of my opposition.  It is based on Mr. Chen’s judicial philosophy, on his own statements, and on his record. 


Mr. President, it is absolutely critical that our judges remain impartial.  Our system depends on it.  For that reason, when judges put on the robe for the first time, they take a solemn oath that they will remain impartial.  They swear that they will administer justice “without respect to persons, and do equal right to the rich and the poor.” 


That is why we want to make sure the judges we confirm will set aside their personal opinions.  We do not want their personal views to influence how they do their job.  They are supposed to decide cases based on the facts and the law, and nothing else. 


Unfortunately, there are some who believe that this notion of impartiality is just old-fashioned and out dated.  They believe that judges should not be limited to the facts and law.  Instead, they believe judges should look at the litigants themselves.  The President takes this view.  This is the heart of the so-called “empathy standard.”  The problem, of course, is that empathy for one litigant is a bias against the other.


But Mr. Chen appears ready and willing to adopt and apply the so-called empathy standard.  He appears to be a member of the camp that believes that being completely impartial is just an old-fashioned view of judging. In 2003, as a sitting federal magistrate judge, he wrote an article that summed up his view.  He said:


“Judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experiences.  Such experiences inform assumptions that affect legal decisions. . . . Simply put, a judge’s life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide.  These determinations require a judge to draw upon something that is not found in the case reports that line the walls of our chambers.  Rather, judges draw upon the breadth and depth of their own life experience, upon the knowledge and understanding of people, and of human nature.” 


The problem with this approach, of course, is that it is the exact opposite of what judges are supposed to do.  Judges are supposed to determine the facts, and apply the law.  That is what their oath demands.  And that is what judges must do for our judicial system to remain independent and impartial.


In addition to allowing empathy to effect his decision-making, Judge Chen appears willing to inject his personal views into judging.  Both his writings and public comments while a Magistrate Judge suggest that Judge Chen believes judges should interpret the law according to their personal understandings and preferences.  This is the classic definition of judicial activism. For example, in discussing his work as a magistrate judge, he stated in a speech in 2007 before the American Constitution Society that he finds “most rewarding . . . contributing to the development of the law via published opinion, especially if it comports with my view of justice.”


Again, the problem here is that a judge’s view of justice is irrelevant.  Judges are not policy makers.  They are called on to decide the facts and apply the law.  Their own view of justice is simply not relevant.


Given that Judge Chen believes that a judge’s personal views and experiences impact their decisions, it becomes important for us to understand his views and how they were shaped.  Prior to becoming a magistrate judge, Judge Chen worked as a staff attorney for the American Civil Liberties Union (ACLU) for over 15 years. 


As an advocate for the ACLU, he took very liberal positions on a variety issues.  To name just a few: he opposed private drug testing; he opposed anti-gang injunctions; he defended affirmative action; he harshly criticized English-only measures; and he argued that Alabama should be forced to give driving tests in languages other than English. 


Those who have defended Judge Chen’s nomination have argued that we should not consider his work for the ACLU.  And as I said, we have confirmed other nominees with strongly held personal views.  But, when a nominee says that personal views and experiences should and will influence how they approach cases, it becomes difficult to overlook their work on behalf of an organization like the ACLU. 


Judge Chen’s advocacy on behalf of the ACLU is not disqualifying, by itself.  But it is hard to imagine why Judge Chen would devote so much of his professional career to the ACLU’s causes, if he did not believe in them deeply.  


More importantly, given that in Judge Chen’s view, personal views and experiences should influence how a judge decides cases, we have no choice but to examine Judge Chen’s personal views and experiences, including his work for the ACLU.


Mr. President, for these reasons and others, I oppose the nomination.  If Judge Chen is confirmed today, I sincerely hope that he will prove me wrong.  I sincerely hope that he will set aside his personal views and make decisions based solely on the facts and the law.  But, based on the record before me, I fear that he will not be able to do so.  Therefore, I will vote no on his confirmation.


I yield the floor.