Seeking Quality, Not Quantity
Prepared Floor Statement of Ranking Member Chuck Grassley
Alison J. Nathan to be United States District Judge for the Southern District of New York;
Katherine B. Forrest to be United States District Judge for the Southern District of New York;
Susan Owens Hickey to be United States District Judge for the Western District of Arkansas
Thursday, October 13, 2011
Today we continue in our cooperation with the Majority as we vote on three more judicial nominees. With a confirmation earlier this week, and six judicial confirmations, last week, I would note the progress we have made.
After today’s votes, we will have confirmed 68 percent of President Obama’s judicial nominees submitted during his presidency. We remain ahead of the pace set forth in the 108th Congress. We’ve already held hearings for over 84 percent of President Obama’s judicial nominees this Congress, while at this point in the 108th Congress, only 77 percent of President Bush’s judicial nominees had their hearing. Just this morning, the Judiciary Committee reported five more nominees to the floor, totaling over 77 percent of President Obama’s judicial nominees receiving favorable votes out of committee. That is compared to only 72 percent of President Bush’s judicial nominees receiving favorable outcomes at this point in the 108th Congress. This indicates the bipartisan effort taking place to move consensus nominees forward, despite what we here from the other side about obstruction and delay.
The advice and consent function of the Senate is a critical step in the process. 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 a 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. Six years ago, 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, on January 26, 2006 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.
Although we have had a long run of confirming consensus nominees, two of the nominees on which we are about to vote come with reservations. Ms. Nathan and Judge Hickey both have had limited experience in the courtroom. They have failed to meet even the minimum qualifications that the ABA says it uses in the rating process. The Standing Committee’s guidelines provide, “a prospective nominee to the Federal bench ordinarily should have at least 12-years experience in the practice of law.” They further state, “Substantial courtroom and trial experience as a lawyer or trial judge are important.”
I want to emphasize that the ABA 12-year standard is not an absolute. However, it is a benchmark that we can use to evaluate the experience of nominees. As I have said in the past, being appointed a federal district judge should be a capstone of an illustrious career. Federal judges should have significant courtroom and trial experience as a litigator or a judge. I would note that last week at our hearing, Justice Scalia expressed concern about the decline in the quality of federal judges.
With regard to the two non-consensus nominations before us today, I voted to advance them out of the Judiciary Committee so that the full Senate could evaluate their qualifications. However, both of these nominees received votes in opposition in committee. After they were reported, we had our second opportunity to examine their records, and unfortunately I am unable to support them on the floor.
I am, however, pleased to support the nomination of Katherine B. Forrest to be United States District Judge for the Southern District of New York.
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. In addition, I am concerned about her views on 2nd Amendment rights, on the death penalty, on the use of foreign law, and her remarks regarding the Bush Administration’s war on terrorism.
Judge Hickey has served as a state court judge for about one 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. This is not the place for on-the-job training.
Let me say a bit more about the background of the nominees we are considering today.
Two nominees have been nominated to serve as United States District Judge for the Southern District of New York - Katherine B. Forrest and Alison J. Nathan.
Since graduating from New York University School of Law in 1990, Ms. Forrest has spent the vast majority of her legal career as an attorney at Cravath, Swayne, & Moore. She served as an associate at the firm from 1990 to 1997 and a partner from 1998 to 2010. While at Cravath, Swayne, & Moore, Ms. Forrest was a generalist litigator who practiced in the areas of antitrust, intellectual property, contracts, employment law, accounting fraud, and securities litigation.
In addition, Ms. Forrest was involved in the management of the firm, serving on the Partner Review Committee. She also ran the firm’s Continuing Legal Education program from 1998 to 2005.
Ms. Forrest has been a Deputy Assistant Attorney General in the Department of Justice’s Antitrust division since 2010. She is involved in most major matters the division handles, including litigation planning and execution, appellate litigation, and international cooperation. She has a unanimous rating of “Well Qualified” by the ABA Standing Committee on the Federal Judiciary.
Ms. Nathan graduated with a B.A. from Cornell University in 1994 and with a J.D. from Cornell Law School in 2000. Upon graduation, she clerked for Judge Betty Fletcher of the Ninth Circuit Court of Appeals from 2000 to 2001. From 2001 to 2002, Ms. Nathan clerked for Justice John Paul Stevens of the Supreme Court of the United States.
Ms. Nathan entered private practice with Wilmer, Cutler, Pickering Hale & Dorr LLP serving as an Associate in the Washington, D.C. office as well as the New York office. She practiced within the Litigation group, the Supreme Court and Appellate Litigation group, and the Regulatory and Government Affairs group.
From 2006 to 2008, Ms. Nathan worked as a Visiting Assistant Professor of Law at Fordham University School of Law. In this role, she taught civil and criminal procedure and constitutional law. From 2008 to 2009, Ms. Nathan also served as the Fritz Alexander Fellow at New York University School of Law, engaged in legal research.
In 2009, Ms. Nathan secured a position with the White House Counsel’s Office. As an Associate White House Counsel and Special Assistant to the President, Ms. Nathan reviewed legislation, analyzed and advised staff on legal issues, and assisted in the preparation of judicial and executive branch nominees for confirmation hearings.
In July 2010, Ms. Nathan returned to New York and began to work as a Special Assistant to the Solicitor General of New York. A majority of the ABA Standing Committee on the Federal Judiciary rated Ms. Nathan as “Qualified.” A minority rated her as “Not Qualified.”
Susan Owens Hickey is nominated to be a United States District Judge for the Western District of Arkansas. Ms. Hickey graduated from the University of Arkansas School of Law in 1981. In April of that year, she worked for the law firm of Brown, Compton & Prewett, where she worked on the pretrial preparation and trial of a personal injury case that the firm was defending. From 1981 to 1984, Ms. Hickey worked as a staff attorney for the Murphy Oil Corporation. In that role, she worked primarily on issues involving natural gas, securities and corporate law.
From 1984 to 2003, Ms. Hickey was not employed or actively engaged in the practice of law, with the exception of serving as a temporary law clerk. During the summer of 1997 and during the summer of 1998 Ms. Hickey served as a temporary law clerk for the Honorable Harry F. Barnes, United States District Judge for the Western District of Arkansas.
Ms. Hickey returned to work for that same judge in 2003, serving as a senior career law clerk, and she stayed in that position until 2010.
In September 2010, Ms. Hickey was appointed circuit judge for the Thirteenth Judicial Circuit of Arkansas. Ms. Hickey received a unanimous “Qualified” rating from the ABA Standing Committee on the Federal Judiciary.
I thank the Chair and yield the floor.