Senate Debate on Empathy
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2009-09-17 - Sessions on Hamilton

Senate Session
Event Date: 09/17/2009 Last Airing: 09/17/2009 Program Id: 288982-1
Closed Captioning: ... HAMILTON'S HAS EMBRACED PRESIDENT OBAMA'S EMPATHY STANDARD. INDEED, HE SAID AS MUCH...
Summary: The Senate passed H.R. 3288 as amended; Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2010. The Senate confirmed the nomination of Gerard E. Lynch, of New York, to be U.S....

 

 


1:53 ET
10:52 - PT

mr. Sessions

2009-09-17 13:52:49... HAS EMBRACED PRESIDENT OBAMA'S EMPATHY STANDARD. INDEED, HE SAID AS MUCH IN...


i am concerned also that the president in his nominations are -- are moving a number of people for the federal bench that are clearly activists in tone. Many of them don't have the length of time on the bench that judge lynch did or his skills as a judge, frankly. And it's causing us some concern, and we'll have some real debate about it. The nomination of judge david hamilton for the circuit -- first circuit court of appeals raises that issue -- of appeals and raises that issue of concern with me. The white house said it intended to send a message with his appointment and i'd say it did.

 Judge hamilton's appointment is a significant one. Instead of embracing the constitutional standard of jurisprudence, judge hamilton's has embraced president obama's empathy standard. Indeed, he said as much in his answer to questions for the record following his confirmation hearing in the judiciary committee, on which i sit. He rejects the idea that the role of a judge is akin to that of a -- of an umpire who calls balls and strikes in a neutral manner.

Rather, he believes that a judge will -- quote -- "reach different decisions from time to time taking into account what has happened and its effect on both parties and what are the practical consequences." judge hamilton also appears to have embraced the idea of a living constitution.

And the last time i was at the archives building, i saw a parchment from 1789 that was not breathing. That's a document, it's a contract, guarantees certain rights to every American, and judges around empowered to rewrite it to make it say what they think it ought to say today. In a speech in 2003, he indicated -- this is judge hamilton -- that a judge's role included writing footnotes to the constitution.

When senator hatch questioned him about these comments in a follow-up question, he retreated somewhat but then gave a disturbing answer in the next question about judges amending the constitution or creating new rights through case law and court decisions. This judicial philosophy has clearly impacted judge hamilton's ruling during his time as a district judge. He has issued a number of controversial rulings and has been reversed in some noteworthy cases. For example, he ruled against allowing a public sectarian prayer in the indiana state legislature and was reversed by the supreme court -- the seventh circuit.

 He was reversed by the seventh circuit. He ruled against allowing religious disnays are subbuildings and -- displays in government buildings and was reversed by the seventh circuit panel. He blocked the reasonable informed consent law in dealing with abortion matters for seven years. He continued to block the enforcement of that law and was eventually firmly and forcefully overruled by the seventh circuit for being in violation of the law. And states and other peoples have spent all kind of money and the attorney generals of the states have spent effort and time -- as our president used to be attorney general -- as he knows, you spend a lot of money to litigate these matters and finally win it, but, in effect, the people of the state for seven years were unable to enforce a constitutional statute their duly elected representatives had passed. And that's the power of an unelected federal judge sometimes, and we need to be sure that judges who go on the bench understand they are allowed to do that.

That they're supposed to be a neutral umpire, and the case law and the constitution says this is a good statute, you need to affirm it whether you like it or not, whether you would have voted differently or want. If he wants to be in the legislature and vote on the statute, let him seek that office. Now, a federal judge must be able to dispense rulings in a neutral fashion so that the elm tbleam hangs over the -- the emblem that hangs over the supreme court which has been embraced by the american people "equal justice under law" can be carried out in every aspect of a legal proceeding. A judge must put aside political views which may be appropriate as a legislator, executive or an advocate and interpret the law as it's written. He must keep his oath to uphold the constitution first and foremost. As i've said before, the constitution is a contract between the american people and a -- and a -- especially in a government of limited powers that's established by the people. It is a judge's duty abide by the constitution and protect it and defend it.

And all the laws duly passed by congress that are consistent with that constitution. We have preserved our nation well by insisting that our judiciary remain faithful to the plain and simple words of the constitution and the statutes involved. So, mr. President, i am really impressed with the skill, the legal ability of judge lynch. He's before us today. I don't see -- i've reviewed his record carefully. I've listened to his answers. I've seen some of his speeches and they cause me trouble in and a few cases that cause me trouble. But i think giving deference, an appropriate deference, to the president's nomination, that he should be confirmed. I'll ask my colleagues to support the confirmation. But i want to say that all of us in this body as well as judges have a duty to preserve and defend our constitution. Now, you canny lead to constitution in a number of ways ways, and one way it can be changed and altered impermissibly is when judges redefine the meaning of words. And so when a judge says we shouldn't resort to 18th century dictionaries, that makes me nervous. What does that mean? You just give it a new definition, the word? The one the people ratified, the amendment they passed and ras tied and they had a -- ratified, and it had a certain meaning, they understood it to have that meaning, and now you're on the bench and you think it shouldn't be enforced that way. You'd like to see a different result. Well, you just sort of amend it or write a footnote to it? I don't think that's good judicial policy, and i feel an obligation. I think a number of us in this senate do, to affirm good judges judges, men and women of character and ability and faithfulness to our law and constitution, but also raise concerns that we have and to use every bit of our ability and strength to oppose nominees who won't be faithful to those high ideals that are have made us a nation of laws and made us prosperous and free. I thank the chair and would yield the floor. Note the absence of a quorum.
 

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Text From the Congressional Record
http://www.c-spanarchives.org/congress/?q=node/77531&id=9035429


Sessions, Jeff [R-AL]
 
Begin 2009-09-17 13:38:12
End   13:59:53
Length 00:21:41
Mr. SESSIONS. Mr. President, I wish to speak today on President Obama's nominee for the Second Circuit Court of Appeals--a court one step below the U.S. Supreme Court--Judge Gerard Lynch.

I have carefully reviewed Judge Lynch's background and his rulings as a district court judge. He is a Columbia law graduate and a former Federal prosecutor in the Southern District of New York. For the most part, he has been a very good district judge. He is exceedingly capable and a man of high integrity.

After reviewing his record and responses to questions from the Senate Judiciary Committee, I decided to support his nomination. I do so because I believe he will adhere to his judicial oath which requires judges to administer justice without respect to persons, to do equal right to the poor and the rich, and to faithfully and impartially discharge and perform their duties under the Constitution and laws of the United States and not above it.

In responses to my questions, Judge Lynch affirmed that circuit courts have no greater freedom than district courts to decide law outside the bounds of precedent, but they must apply the law and the precedent to which they are bound.

Judge Lynch also stated that a judge is to ``apply the law impartially'' and ``should not identify with either side'' in a case.

Even though I will support Judge Lynch and admire him and enjoyed meeting with him, I want to share some concerns about his rulings and some statements he has made over the years that I think are matters that ought not go unremarked before his confirmation.

The role of a judge is to follow the law regardless of personal politics, feelings, preferences, or ideology. I think, for the most part, he has done that in his cases.

One case that is troubling, however, is U.S. v. Pabon-Cruz in which Judge Lynch attempted to get around the jury process and the sentencing process because he believed a mandatory minimum sentence required by Congress of 10 years for a conviction of receiving and distributing child pornography was unduly harsh.

He announced that he would tell the jury about the penalties in the case, which is not appropriate. In its order prohibiting Judge Lynch from informing the jury about what the punishment would be in the case, the Second Circuit, on which he now seeks to sit, expressly stated that Judge Lynch's ``proposed jury instruction regarding the penalties the defendant faces if convicted is a clear abuse of discretion in light of binding authority.''

Judge Lynch disagreed with the Second Circuit's decision, calling it a ``mistaken conclusion.'' Judge Lynch clearly believed he had the right to ignore precedent and established law and inform the jury about the penalties that were applicable upon their verdict of guilty so that the jurors, in effect, would have an opportunity to ignore the law and choose not to apply it because he did not think the penalty was fair, apparently.

I am disappointed by the fact that Judge Lynch appears to believe this sentence was inappropriate, but more importantly, that he should have been allowed to invite jury nullification, which is, in effect, to say to a jury: You don't find the defendant guilty if you think the punishment is inappropriate.

In response to one of my written questions, Judge Lynch said that while he accepts the ruling of the Second Circuit, he continues to believe his instincts were correct. He stated:



The rationale for this decision--



Of the Second Circuit which reversed him--



which I fully accept, in light of the ruling of the Second Circuit, was erroneous--was that unlike most cases in which the jury fully understands the seriousness of the crime charged, in that case the jury may have misperceived the relative seriousness of the two overlapping charges in the case.



Judge Lynch's actions in that case are especially disconcerting when considered in light of his written remarks criticizing the textualist approach to constitutional interpretation.

In a 2001 speech on the Supreme Court's decision in Apprendi v. New Jersey, Judge Lynch stated:



I would like to welcome--



Talking here about Justice Scalia and Justice Thomas--



also to a more realistic, more flexible, and in the end more honest way of protecting the constitutional values they share.


Judge Lynch, in effect, endorsed this flexible judicial philosophy and advocated it previously.

Concern over his statements in previous years contributed to my vote against his nomination to the U.S. District Court on that occasion.

In a 1997 law review article entitled ``In Memoriam: William J. Brennan, Jr., American''--that is, of course, Justice William Brennan for whom he formerly clerked--Judge Lynch admonished the successors of Justice Brennan that they must also engage in constitutional interpretation ``in light of their own wisdom and experience and in light of the conditions of American society today.''

In that same article, Judge Lynch stated he personally believed it was a ``simple necessity'' that the Constitution ``be given meaning for the present.''

Judge Lynch's praise for Brennan's ``present-day meaning'' approach included the opinion that Justice Brennan's ``long and untiring labor to articulate the principles found in the Constitution in the way he believed made most sense today seems far more honest and honorable than the pretense that the meaning of those principles can be found in eighteenth- or nineteenth-century dictionaries.''

So I have a problem with that speech from 1997 and that strong statement of adherence to the doctrine that Justice Brennan was the foremost advocate of a living constitution and that words don't have fixed meanings; that you can make them say what you want them to say to affect the result you think is appropriate today.

The Constitution is a contract with the American people. We have every right to amend it through the amendatory process, but judges don't have a right to amend it based on what they perceive it to mean. Based on what? What information have they received that makes them think they have a better idea of what the Constitution ought to mean than how it has been interpreted for 200 years?

This is a serious matter because judges are unelected. They have a lifetime appointment, and we give them that because we want unbiased, objective analyses. But it doesn't mean they are empowered to update the Constitution to make it say what they would like it to say today. They are not empowered to do that. In fact, it erodes democracy when they do that because the elective branches, those of us in [Page: S9529]
this Senate, are accountable. Judges aren't accountable.


Another of Judge Lynch's cases that bears mention is United States v. Reyes. In that case, a police officer asked a defendant drug dealer, who had not yet been read his Miranda rights, whether he had anything on him that could hurt the officer or his field team. Even though the defendant had not been frisked, Judge Lynch concluded the defendant was the subject of a custodial interrogation under Miranda, and that before the police officer could ask whether he had anything to endanger the officers,
he had to warn him of his Miranda rights. As a result, Judge Lynch excluded from the record statements that the defendant made at that time which implicated him in the crime.

The Second Circuit--the circuit which he will now serve on--reversed Judge Lynch, holding that the public safety exception was in fact applicable and that the cases Judge Lynch had relied upon in his ruling were distinguishable. The court noted that drug dealers often have hypodermic needles or razor blades on their person that could pose a danger to police officers. Additionally, the defendant was not handcuffed at the time of the arrest and could have reached for a concealed weapon. The Second
Circuit also noted that the questions asked by the officer were ``sufficiently limited in scope and were not posed to elicit incriminating evidence,'' and the police ``cannot be faulted for the unforeseeable results of their words or actions.''

Judge Lynch has also advocated that Miranda warnings be administered for searches, which has never been the case. In a symposium commentary, Judge Lynch proposed a Miranda-type rule for searches that would invalidate consents to search unless the party whose consent is sought is first advised that he or she has the constitutional right to refuse such consent.

Well, Miranda was never required by the Constitution. It was a prophylactic protective rule the Court conjured up. Somehow the system has survived it, but it has done some damage in terms of not getting the kind of admissions and confessions you might otherwise get. That is just a fact. At any rate, to expand that now to searches, which has never been done, I think is an unhealthy approach.

You might say: Well, theoretically, if you are going to do these Miranda interviews you could do it on searches. But I would just note that Miranda itself is a protective rule, not a mandated constitutional rule.

I mentioned the foregoing issues because they are of great concern to me. It appears, notwithstanding, in the vast majority of his cases, Judge Lynch has been a very careful judge who has followed the law. He has stated that he understands that circuit judges are ``bound by Supreme Court and prior circuit precedent, and their job is to apply, fairly and accurately, the holdings and reasoning of such precedent.''

Given his commitment to do that, I will vote for him, and I hope he will continue his excellent service on the bench, but that he will interpret the law as written and will refrain from imposing personal views in his decisions.

It is unfortunate, and I am concerned also, that the President, in his nominations, is moving a number of people for the Federal bench that are clearly activists. Many of them don't have the length of time on the bench that Judge Lynch does, or his skills as a judge, frankly, and it is causing us some concern, and we will have some real debate about it.

The nomination of Judge David Hamilton for the Seventh Circuit Court of Appeals raises that issue and concern with me. The White House has said it intended to send a message with his appointment, and I would say that it did. Judge Hamilton's appointment is significant. Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced President Obama's empathy standard. Indeed, he said as much in his answers to questions for the record following his confirmation hearing
in the Judiciary Committee.

He rejects the idea that the role of a judge is akin to that of an umpire who calls balls and strikes in a neutral manner. Rather, he believes a judge will ``reach different decisions from time to time ..... taking into account what has happened and its effect on both parties, what are the practical consequences.''

Judge Hamilton also appears to have embraced the idea of a living constitution. The last time I was at the Archives Building, I saw a parchment from 1789--not breathing. It is a document. It is a contract. It guarantees certain rights to every American, and judges aren't empowered to rewrite it, to make it say what they think it ought to say today.

In a speech in 2003, Judge Hamilton indicated a judge's role included writing footnotes to the Constitution. When Senator Hatch questioned him about these comments in a follow-up question, he retreated somewhat, but then gave a disturbing answer to the next question about judges amending the Constitution or creating new rights through case law and court decisions. This judicial philosophy has clearly impacted Judge Hamilton's rulings during his time as a district court judge. He has
issued a number of controversial rulings and has been reversed in some noteworthy cases.

For example, he ruled against allowing a public, sectarian prayer in the Indiana State Legislature and was reversed by the Seventh Circuit.

He ruled against allowing religious displays in public buildings and was unanimously reversed by a panel of the Seventh Circuit.

He blocked the enforcement of a reasonable informed consent law dealing with abortion matters for 7 years. He continued to block enforcement of that law and was eventually firmly and forcefully overruled by the Seventh Circuit for being in violation of the law.

Judges, the State, and other people spent all kinds of money, and attorney generals of the State spent money and time and effort to litigate these matters, and finally winning, but, in effect, the people of the State, for 7 years, were unable to enforce a constitutional statute their duly elected representatives had passed.

That is the power of an unelected Federal judge sometimes, and we need to be sure judges who go on the bench understand they are not allowed to do that. They are supposed to be a neutral umpire. If the case law and the Constitution say this is a good statute, they need to affirm it whether they like it or not, whether they would have voted differently or not. If he wants to be in the legislature and vote on the statutes, let him seek that office.

A Federal judge must be able to dispense rulings in a neutral fashion so the emblem that hangs over the Supreme Court, which has been embraced by the American people--equal justice under law--can be carried out in every aspect of a legal proceeding. A judge must put aside political views which may be appropriate as a legislator, executive, or an advocate, and interpret the law as it is written. He must keep his oath to uphold the Constitution first and foremost.

As I have said before, the Constitution is a contract between the American people, especially in a government of limited powers that is established by the people. It is a judge's duty to abide by the Constitution and protect and defend it and all the laws duly passed by Congress that are consistent with that Constitution. We have preserved our Nation well by insisting that our judiciary remain faithful to the plain and simple words of the Constitution and the statutes involved.

So, Mr. President, I am impressed with the skill, the legal ability of Judge Lynch, whose nomination is before us today. I have reviewed his record carefully. I have listened to his answers. I have seen some of his speeches. In a few cases, they cause me concern. But I think giving deference--and appropriate deference--to the President's nomination, he should be confirmed. I will ask my colleagues to support the confirmation.

But I want to say that all of us in this body, as well as judges, have a duty to preserve and defend our Constitution. You can erode the Constitution in a number of ways, and one way it can be changed and altered impermissibly is when judges redefine the meaning of words. So when a judge says we shouldn't resort to 18th century dictionaries, that makes me nervous. What does that mean? You just give a new definition to the word, the one that people ratified--the amendment they passed and ratified,
which [Page: S9530]
had a certain meaning and was understood to have that meaning? Now that you are on the bench, and you think it shouldn't be enforced that way, and you would like to see a different result, you just sort of amend it or write a footnote to it? I don't think that is good judicial policy, and I feel an obligation--I think
a number of us in this Senate do--to confirm good judges--men and women of character and ability and faithfulness to our laws and Constitution--but also raise the concerns that we have and to use every bit of our ability and strength to oppose nominees who won't be faithful to those high ideals that have made us a nation of laws and made us prosperous and free.

I thank the Chair, and I yield the floor.