Dec 14 2017
Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today released the following statement in opposition to the nominations of Steven Grasz for the Eighth Circuit, James Ho for the Fifth Circuit and Don Willett for the Fifth Circuit:
“I’d like to offer some background on the importance of circuit courts and remind my colleagues why we have so many judicial vacancies.
The Supreme Court hears between 100 and 150 cases each year out of the more than 7,000 it’s asked to review. But in 2015 alone, more than 55,000 cases were filed in federal appeals courts.
These cases range from crime and terrorism to bankruptcy and civil matters, and the judges who hear these cases will affect millions of Americans.
So it’s extremely important who is confirmed to these lifetime positions. Federal judges have a tremendous impact on individuals, businesses, and the law.
In a way, circuit courts serve as the de facto Supreme Court to the vast majority of individuals who bring cases. They are the last word.
These nominations are very important. That’s why it’s so concerning that Republicans for years refused to allow judgeships to be filled.
The simple fact is, the rush to fill judicial vacancies is the direct result of Senate Republicans’ historic obstruction of judicial nominees during President Obama’s administration.
During President Obama’s last two years in office, just 22 judicial nominees were confirmed. That’s the fewest in a Congress since Harry Truman was president.
In contrast, during the last two years of the George W. Bush administration, Senate Democrats confirmed 68 judicial nominees.
At the end of last year, three circuit court nominees and 20 district court nominees had been approved by the Judiciary Committee and were waiting for votes on the Senate floor.
Republicans refused to schedule votes for those nominees, many of whom Republicans themselves voted for, so they could hold those seats open.
Four more circuit court nominees and 52 district court nominees were pending in committee and never even received a hearing.
Now, one year later, the Senate is voting this week to confirm the 10th, 11th, and 12th circuit court nominees this year. Republicans went from delaying all nominees to cramming them through at a breakneck pace.
The 11 circuit court nominees who have already been confirmed are more than any president in the first year of office since Richard Nixon.
Two nominees we’re considering this week, James Ho and Don Willett, lay out the Republican playbook.
These seats on the Fifth Circuit have been vacant since 2012 and 2013, even though the Obama White House tried to work with my colleagues from Texas to fill these seats with consensus nominees.
But once President Trump entered the White House, they wasted no time in rushing to put conservative judges in those seats.
Don Willett was nominated on October 3, James Ho on October 16.
Just a month later, on November 15, the Judiciary Committee held a hearing for both circuit court nominees on the same day, and cloture was filed immediately on both nominations after the committee advanced them.
The speed at which these judges are being rammed through the process is stunning.
In fact, on four occasions in the last six months our committee has held hearings for two circuit court nominees at the same time. This happened only three times in all eight years of the Obama administration.
This is a problem because it gives senators less time to review each nominee’s record and less time to ask each nominee questions. Candidly, it makes it very difficult for us to exercise our constitutional duty to ‘advise and consent.’
And we’re already seeing the ramifications. Just yesterday the White House announced that two of its nominees would not be moving forward. One nominee, Brett Talley, had already been voted out of the Judiciary Committee, but we learned of troubling undisclosed information while he was pending on the floor.
This may not have happened if we had sufficient time and cooperation to fully review these nominees.
In the month of November, the Judiciary Committee had hearings for five circuit court nominees. I’ve served on this committee since 1993 and we have never held hearings for five circuit court nominees in a single month before.
And that’s during a month when we spent a week at home for Thanksgiving.
Republicans refused to advance seven circuit court nominees last year, but now we’re speeding through the process to fill those seats with conservative judges. Fairness aside, we should all be concerned that we’re giving lifetime appointments to potentially unqualified nominees.
Now I’d like to talk about the three nominees we’re considering this week.
This week, Steven Grasz was confirmed to the Eighth Circuit.
The American Bar Association has rated 1,755 judicial nominees since 1989, and only two of those have been unanimously rated ‘Not Qualified’ based on concerns over their impartiality.
One was a nominee for the Fifth Circuit in 2006 who was never confirmed. The other is Steven Grasz.
Let me repeat that. This week, for the first time since at least 1989, the Senate voted to confirm a nominee who was unanimously rated as ‘Not Qualified’ by the American Bar Association.
The ABA doesn’t rate nominees based on what the evaluators think. Rather, they review a nominee’s written record, talk to the nominee and interview many people who have direct personal and professional knowledge about the nominee.
Here are just two direct quotes from the ABA’s review:
‘Mr. Grasz’s professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.’ (ABA Oct. 30 Statement p. 5)
‘[A] number of Mr. Grasz’s professional colleagues expressed the view that, in terms of judicial temperament… Mr. Grasz is not ‘free from bias.’ Specifically, they expressed the view that he would be unable to separate his role as an advocate from that of a judge.’ (ABA Oct. 30 Statement p. 5)
These are stunning indictments of a man who was confirmed to a lifetime seat on a circuit court.
Some of my Republican colleagues argue that the ABA is biased. The numbers just don’t bear that out.
Over the last 30 years, during both Republican and Democratic administrations, the ABA has rated nearly 1,800 nominees and rated only two ‘Not Qualified’ based on their temperament.
I voted against Mr. Grasz’s nomination and am very concerned that he was confirmed on Tuesday. He did not have the support of a single Democratic Senator.
Next I’d like to talk about James Ho, nominated to the Fifth Circuit.
During his time at the Office of Legal Counsel, Mr. Ho wrote a legal analysis of the scope of the term ‘cruel, inhuman, and degrading treatment,’ which is prohibited under Common Article 3 of the Geneva Conventions.
Unfortunately, this memo remains privileged and we haven’t seen it.
The reason we know this memo exists is because Jay Bybee cited it in one of the so-called ‘torture memos,’ which were used to justify torture and have since been widely discredited.
The Bybee memo also appears to have relied on Mr. Ho’s analysis to argue that because the term ‘cruel, inhuman, and degrading treatment’ ‘appears to ... have a rather limitless reach,’ conduct that qualifies as torture should be defined more narrowly than what is prohibited under international law. (Bybee memo at 17-18, n.9)
It’s this kind of flawed legal reasoning that allowed the U.S. government to torture people, and I have argued that no vote should have taken place on Mr. Ho’s nomination until we had access to that memo.
The Justice Department has provided us access to similar memos written by nominees for judgeships, so there’s no reason to deny us access to the memo James Ho authored.
I can’t possibly vote in favor of a nominee to a lifetime appointment who may have helped provide the legal basis for torture, and it’s a shame we’re voting on this nominee this week.
Finally I’d like to speak about Don Willett’s nomination to the Fifth Circuit.
At his hearing, my first question was about his 1998 comments on a draft proclamation for then-Governor George W. Bush to honor the Texas Federation of Business and Professional Women in 1998.
Let me quote from Justice Willett’s comments: ‘I resist the proclamation’s talk of ‘glass ceilings,’ pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/ harassment, and the need generally for better ‘working conditions’ for women (read: more government).’
I asked Justice Willett if these were still his beliefs, and he refused to answer. I asked again, and again he refused to answer. Senator Durbin asked the same question, and Justice Willett refused to disavow these beliefs.
As the National Women’s Law Center wrote, ‘Mr. Willett’s skepticism of the existence of sex discrimination should disqualify him from the bench. Litigants coming before Mr. Willett … would have reason to question whether their claims of discrimination, including sexual harassment and pay discrimination, would be fairly and impartially heard or, instead, treated as ‘hype’ to ‘debunk.’’
I could not support Justice Willett’s nomination.”###