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| June 25th, 2008 |
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Media Contact(s): Mark Eddington or Lindsey Stimpson, (202) 224-5251 |
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Printable Version |
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HATCH VOTES TO CONFIRM JUDGE HELENE WHITE DESPITE RESERVATIONS
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WASHINGTON – Sen. Orrin Hatch (R-Utah) voted late yesterday to confirm Judge Helene White’s nomination to the U.S. Court of Appeals for the Sixth Circuit despite reservations about her qualifications.
He entered the following remarks in the Congressional Record to explain his vote and his concerns about White.
Hatch’s complete remarks follow:
I will vote for all three judicial nominees before us today. I want to offer a few comments about one of them and also about the current state of the judicial confirmation process.
The Constitution gives authority to nominate and appoint judges to the President, not to the Senate. The Senate’s role is to check the President’s power, to ensure that his nominees are not crooks, cronies, or corrupt.
Too often in recent years, Senators have tried to push our role beyond checking the President’s power to highjacking the President’s power. That goes too far and undermines the separation of powers which is so critical to limit government power and to keep our system of government in balance.
For this reason, my perspective on the judicial confirmation process begins with substantial deference to the President, no matter which party occupies the White House or has the Senate majority. For this reason, I have voted against and worked to eliminate filibusters used to defeat majority-supported judicial nominees. For this reason, I have voted against very few nominees during my 32 years in this body and on the Judiciary Committee.
From that perspective of deference, I then look at a nominee’s judicial philosophy and qualifications. Applying these criteria, my decision to support two of the nominees before us today, Raymond Kethledge to the Sixth Circuit and Stephen Murphy to the Eastern District of Michigan was easy.
My decision to support Judge Helene White’s nomination to the Sixth Circuit, however, was a much closer call. Frankly, I have always believed that a President has the right to appoint judges who reflect his or her judicial philosophy. I asked Judge White detailed questions designed to explore her judicial philosophy, her understanding of the proper role of federal appellate judges in our system of government.
I want to share a few of her responses with my colleagues.
I asked Judge White to comment on the notion that judges must make decisions based on the law as enacted by the people and their elected representatives, even if they personally disagree with it. I realize this is straight out of Civics 101, but there are many today who believe judges may twist and shape the Constitution and statutes into any form they please in order to achieve results they desire.
Judge White agreed with this wholeheartedly, saying that judges “should be prepared to have no constituency except the law.” That view stands in stark contrast to some of my Democratic colleagues who have said judges must take sides, favor certain ideological interests, and serve certain political constituencies.
I also asked Judge White whether judges may decide cases based on their personal views, sense of justice, empathy, or experience. It would be difficult to come up with a more misguided and even dangerous role for unelected judges in our system of government, but some of my friends on the other side of the aisle have done just that.
To her credit, Judge White flatly rejected that activist view of a judge’s role.
To her credit, Judge White flatly rejected that activist approach. I wanted to share these thoughts with my colleagues because some have questioned whether Judge White is the kind of judge President Bush has said he would appoint. She was, after all, first nominated to the Sixth Circuit by President Clinton, whose nominees generally embraced a more activist judicial philosophy.
President Bush is the first, at least during my Senate tenure, to re-submit an appeals court nominee first offered by a President of the other party. President Clinton certainly did not do that. But the Constitution gives each President the authority to make that judgment and I have always believed that there is a high bar for the Senate to withhold its consent on the basis of judicial philosophy. That perspective of deference and her answers to questions like the ones I described satisfy me on this point.
Let me turn to the question of qualifications.
The American Bar Association’s rating of judicial nominees is more important for some than for others. My friends on the other side have consistently said the ABA rating is the gold standard for evaluating judicial nominees.
I take that back. They have called the ABA rating the gold standard until they want to obstruct nominees who have received even the highest rating. Judge White’s ABA rating in 2008 is higher than it was in 1997, when she was first nominated to the Sixth Circuit.
At that time, some members of the ABA evaluation committee thought she was not qualified at all.
This time, a majority of the evaluation committee found her well qualified and no one thought her unqualified. I must say, however, that even after 26 years as a state court judge, 15 of them on the appellate bench, Judge White still has not garnered a unanimous well qualified rating from the ABA.
In fact, Raymond Kethledge, the other Sixth Circuit nominee before us today, received a higher ABA rating than Judge White and he has no judicial experience at all.
Judge White has never litigated a case. She has never handled clients. She has virtually no experience with federal law issues of any kind. There have been serious concerns about her ability to manage her current docket, let alone the far busier and more complex docket she would face on the federal bench. Perhaps these are some of the issues that kept the ABA evaluators from giving her the highest rating.
Unfortunately, Judge White did not distinguish herself in her hearing and offered the committee little to offset these and other concerns about her qualifications. The distinguished Ranking Member, Senator Specter, and others are detailing some of those concerns on the floor here today.
Some of my friends on the other side have responded that this nomination has really been pending for 11 years and that we should somehow already know enough to fill in the blanks and resolve the doubts. That is ridiculous.
I have served in this body and on the Judiciary Committee for 32 years.
I know of no Senator who keeps tabs on the careers, accomplishments, and record of unconfirmed nominees from previous administrations on the off-chance that they might some day be re-nominated.
We must evaluate each nominee on the current record developed through the current process. And on the question of qualifications, that record satisfies but certainly does not excite me.
I certainly respect the judgment of colleagues looking at these and other issues who conclude that they cannot support Judge White. Voting against a nominee of your own party is a significant step.
There are senators on the other side who have served here and on the Judiciary Committee longer than I have who have never voted against a nominee of their party.
Each of us must make that judgment for ourselves and, though it is indeed a closer call than I would like, I will vote to confirm Judge White.
Before I conclude, I want to make a few observations about the judicial confirmation process with regard to Judge White’s nomination in particular and judicial nominations in general.
When I chaired the Judiciary Committee during the previous administration, Judge White’s nomination did not receive a hearing because she lacked support from her home-state Senator who served on this committee at the time. Similarly, Sixth Circuit nominees of the current president, including Mr. Kethledge who is before us today, because they too lacked home-state Senator support.
I am certainly glad that this issue has been resolved with our distinguished colleagues from Michigan so that these nominees can move forward. But I remain baffled why my following that long-standing policy is today attacked as a so-called pocket filibuster while the current Chairman following that policy is praised for an exercise in senatorial courtesy. That is one of a number of baffling and frustrating features of the current judicial confirmation process.
There have been seven previous Congresses during my service here that included a presidential election year. During an average of 313 days in session, 25 appeals court nominees received a hearing and 20 appeals court nominees were confirmed.
Using that as our benchmark, in the current 110th Congress, we are nearly 90 percent finished with our days in session but so far less than one-third as many appeals court nominees have received a hearing and only half as many have been confirmed.
It does not have to be this way; it has not been this way in the past.
I hope that when the nominees before us today are confirmed, we will turn our attention to the others who are pending, some for many months and even for years, and continue doing what the American people sent us here to do.
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