The Courts: Restoring The Rule Of Law

SEN. GRASSLEY: ‘Each Nominee Is Extremely Well Qualified And Will Serve With Distinction’

SEN. CHUCK GRASSLEY (R-IA) Last Week: “In the past two markups, we’ve reported out three excellent and well-qualified women to the Circuit Courts. … I look forward to advancing all the nominations to the [Senate] floor today. I believe each nominee is extremely well qualified and will serve with distinction.” (U.S. Senate, Judiciary Committee, Business Meeting, 10/26/2017)

• “Two of President Trump's federal appeals court nominees survived Senate Judiciary Committee votes Thursday along partisan lines. The Judiciary Committee voted 11-9 to send Colorado Supreme Court Justice Allison Eid's 10th Circuit nomination and Stephanos Bibas' 3rd Circuit nomination to the full Senate.” (“Judiciary Committee Advances 2 Federal Appeals Court Nominees Along Partisan Lines,” Washington Examiner, 10/26/2017)

• SEN. MITCH McCONNELL (R-KY): “Our effort to confirm qualified judicial nominees this year would not be possible without the tireless work and effective leadership of Judiciary Committee Chairman Chuck Grassley. To build on the excellent work of his committee, I filed cloture last week on four well-qualified circuit court nominees. These nominees understand their role as a judge is to put aside their personal preferences and instead decide cases based on what the law says. We’ll confirm all of them this week, no matter how long that takes.” (Sen. McConnell, Floor Remarks, 10/30/2017)

“Senate Republicans have cleared judicial nominees at a comparatively rapid clip this year...” (“Trump Could Remake Judiciary For ‘40 Years’” Politico, 10/17/2017)

FLASHBACK

During The 113^th Congress, Majority Democrats Made ‘A Power Play’ To ‘Reshape The Courts For A Generation’

“November 21, 2013: Senate Democrats took the dramatic step Thursday of eliminating filibusters for most nominations by presidents, a power play…” (“Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters On Nominees,” The Washington Post, 11/21/13)

SEN. CHUCK SCHUMER (D-NY): “And our strategy will be to nominate four more people for each of those vacancies … we will fill up the D.C. Circuit, one way or another.” (Sen. Schumer, Remarks, 3/13)

• “Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.” (“Obama Seeks To Shift Conservative Tilt Of Key Court,” Washington Post, 4/2/13)

Democrats Later Boast The ‘Nuclear Option’ Enabled An ‘Extraordinary Onslaught Of Confirmations’ For ‘More Liberal Judges’

“President Barack Obama can thank outgoing Senate Majority Leader Harry Reid (D-NV) for triggering the ‘nuclear option’ in November 2013 and securing him one of the most robust judicial legacies of any modern president.” (“‘Nuclear Option’ Helps Obama Reshape The Courts For A Generation,” TPM, 12/18/2014)

“‘There has been an extraordinary onslaught of confirmations in the last year,’ said Russell Wheeler, an expert on federal courts at the Brookings Institution.” (“‘Nuclear Option’ Helps Obama Reshape The Courts For A Generation,” TPM, 12/18/2014)

• “The nuclear option also freed Obama to appoint some more liberal judges, including Nina Pillard to the D.C. Circuit, who drew comparisons to Justice Ruth Bader Ginsburg — and faced GOP opposition …” (“‘Nuclear Option’ Helps Obama Reshape The Courts For A Generation,” TPM, 12/18/2014)

“A year later, the effect of that change is clear: The 113th Congress confirmed 132 district and circuit court judges, including 89 this year. That’s the highest single-year total in 20 years, and the highest two-year total since 1980. … On Tuesday night alone, the Senate confirmed 12 nominees. … liberals have much reason to be encouraged.” (“The ‘Nuclear Option’ Transforms Obama’s Judicial Legacy,” The Washington Post’s PortPartisan, 12/19/2014)

• “…because of the rule change, [Sen. Harry Reid] was able to clear 96 judges with a majority vote instead of the previously required 60 votes needed to end debate.” (“Senate Clears 96 Judicial Nominations After Rule Change,” The Hill, 12/17/2017)

• “The final 12 district judges were confirmed in the closing night of the Senate session on Tuesday, Reid’s final move before Democrats surrender control of the chamber.” (“‘Nuclear Option’ Helps Obama Reshape The Courts For A Generation,” TPM, 12/18/2014)

“When Obama took office, only one of the 13 regional circuit courts had a majority of Democratic-nominated judges, and as he leaves, nine do. While the Supreme Court hears roughly 75 cases a year, tens of thousands are decided at the circuit court level, affecting all who live in the states within those circuits.” (“As Obama's Nominees Languish In GOP Senate, Trump To Inherit More Than 100 Court Vacancies,” The Washington Post, 12/25/2016)

DEMOCRATS’ LAWLESS STANDARD

PRESIDENT OBAMA: ‘Empathy… That's The Criteria By Which I’m Going To Be Selecting My Judges’

THEN-SEN. BARACK OBAMA (D-IL): “We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I’m going to be selecting my judges.” (Sen. Obama, Remarks To Planned Parenthood, 7/17/07)

• OBAMA: Difficult cases “can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. … the critical ingredient is supplied by what is in the judge's heart.” “…what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. …in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.” (Sen. Obama, Congressional Record, S.10366, 9/22/05)

Post-Nuclear ‘Empathy Standard’ Confirmations Included Robert Chatigny & Edward Chen

“Judge Robert Chatigny, Obama’s … nominee to the Second Circuit Court of Appeals, once stated in a speech at an American Constitution Society event that ‘empathy for individuals involved in a case inevitably comes into play, as it should.’ Chatigny was strongly criticized throughout his confirmation hearings for a variety of cases in which his ‘empathy’ for convicted murderers and rapists inspired him to passionately defend these violent criminals as the presiding judge in their trials or sentencing.” (“Obama’s Empathy Rule: Alive and Well in the Second Term,” National Review Online’s “Bench Memos,” 4/9/2013)

“The president’s nominee for the Northern District of California, Edward Chen, also faced significant opposition over a variety of positions he held during his career as an ACLU lawyer, including the articulation of his own empathy standard — that the ‘ethnic and racial background’ of judges plays a key role in how they ought to apply the law.” (“Obama’s Empathy Rule: Alive and Well in the Second Term,” National Review Online’s “Bench Memos,” 4/9/2013)

“…President Obama’s nominee to the Federal District Court of Oregon, Michael McShane. McShane’s work as a judge in Portland, Ore., raises numerous red flags about whether McShane would exhibit partiality in the federal courtroom, and whether McShane would prioritize empathy over the proper role of a judge. One such example is a case in which McShane, as a sitting judge, drove a convicted drug offender to a treatment facility after personally telling him to ‘not show up clean.’ McShane tried to downplay the possibility that he’d committed an ethical violation, saying he was not actually instructing the man to break the law. ‘I wasn’t telling him to go get high, but it is an odd conversation to have,’ he explained. Ironically, in the same interview, McShane said that, as a judge, ‘once you step in, you’re committed emotionally, whether you want to be or not.’” (“Obama’s Empathy Rule: Alive and Well in the Second Term,” National Review Online’s “Bench Memos,” 4/9/2013)