Mr. SESSIONS. Mr.
President, I thank Senator Johnson for his comments and value his opinion on
this nomination. I look forward to seeing this nominee confirmed.
The confirmation process we have in this country is a very important matter.
Our Democratic colleagues are, understandably, inclined to be supportive of
whomever the President puts up. It has been a recognized responsibility for
the minority party, the party that is not of the President's party, to ask
questions and dig into the backgrounds of these nominees and move the good
ones and raise the proper questions if there are problems.
Mr. Jeffrey L. Viken has an impressive background. Early in his career, he
was an Assistant and Acting U.S. attorney. He is a member of the trial
lawyers plaintiff bar association in South Dakota. He has been in private
practice for 22 years, and for the last 6 years he has been a Federal Public
Defender where he defends criminal cases. So he has been a prosecutor and a
public defender. I guess that is a pretty good match, and I am happy we were
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able
to work out this agreement with the majority and process this nomination
very quickly. Actually, he was voted out after his first appearance before
the Committee and is already on the floor.
But I would note for some people who say there has been a dragging of feet
on the nominations that the President did not send this nomination forward,
his first district court nominee to the Senate, until June 25, a few months
ago, when the Senate and the Judiciary Committee were consumed with the
Supreme Court nomination of now-Justice Sotomayor. Understandably, Chairman
Leahy could not and did not report his nomination until after that
confirmation process was over, until after Labor
Day. We were then able to come to a time agreement and also to vote on the
nomination of Judge Gerard Lynch, who is a highly able nominee but an
activist judge with a philosophy too close, by my way of thinking, to
Justice Brennan on the Supreme Court for whom he clerked. So I think it is
healthy for us to ask questions. I voted for Judge Lynch for the Second
Circuit, and he was confirmed by a very large vote.
We will continue to work with the majority party and the President and move
the nominees at an appropriate pace.
I wanted to note a little bit more about the pace of nominations. You know,
it is not possible for the Senate to confirm a nomination until the
President has nominated someone. I have heard my colleague, the Chairman,
Senator Leahy, say that we haven't had enough confirmations, but I would
note that there is an 11-percent vacancy rate in the Federal courts. That is
not an extraordinarily high vacancy rate. It takes some time to do
background checks and for the President to consider the
people he might want to nominate and to consult with Members of the Senate
as he does so. I would note that at this moment there are 74 Federal
District Court vacancies--Judge Viken is nominated for one--but there are
only 9 nominees before the Senate. There are 28 circuit and district court
seats that are deemed to be judicial emergencies, but only 6
nominees have been submitted to the Senate for those judicial emergency
seats. We can't confirm people until they are nominated. We can't do a
background check on nominees until they have been nominated. We can't have
the information and their records and their FBI backgrounds and the bar
association evaluations take place until they have been nominated.
I would just make my commitment that we will continue to move nominees like
Mr. Viken in a timely fashion. I reviewed his record. I have also carefully
reviewed his responses to questions from the Senate Judiciary Committee. One
of his answers, I have to note, was troubling to me.
He stated that he believes he fits President Obama's standard
for the types of judges he will nominate to the Federal courts; that is, he
meets the President's ``empathy
standard.''
President Obama described that standard as follows:
We need somebody who's got the heart, the
empathy,
to recognize what it's like to be a 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 am going to be
selecting my judges.
In 2005, when then-Senator Obama was in the Senate and he explained on the
floor his vote against Chief Justice John Roberts, who I think is one of the
finest nominees we have seen in decades and whose testimony before the
Judiciary Committee was stunning in its impressiveness and his grasp of the
legal issues, his comprehensive knowledge of how the Court worked, and
cases--there was not a case brought up that he didn't seem to fully know
about. Virtually every case the Supreme Court had ever
written he seemed to be knowledgeable about. It was just a tour de force.
Senator Obama voted against Judge Roberts and stated that 5 percent of cases
are determined by ``one's deepest values and core concerns ..... and the
depth and breadth of one's
empathy.''
We can only take this to mean
that the President believes that in 5 percent of all cases, judges should
not set aside their personal beliefs, biases, or experiences. I think this
is a radical and a dangerous departure from the most important pillar, the
fundamental pillar of the judicial system--judicial impartiality.
Whatever the empathy
standard is, it is not law, and we have courts of law in this country.
Whenever a judge employs his personal beliefs, biases, or experiences to
make a decision that favors one party, is it not true that he necessarily
has, therefore, disfavored the other party as a result of his personal
beliefs and biases? For every litigant who benefits from the judge's
so-called
empathy, there is a litigant
who loses not on the basis of law but because the judge did not identify
with them.
When people are nominated to our
Federal bench, we ask them to take a judicial oath before they take office.
The oath embodies the time-honored American tradition of blind justice. The
oath says this:
I ..... do solemnly swear that I will administer justice without respect to
persons, and do equal right to the poor and to the rich, and that I will
faithfully and impartially discharge and perform all the duties incumbent
upon me ..... under the Constitution and laws of the United States, so help
me God.
I am pleased to say the Supreme Court has not yet struck down ``so help me
God'' in the oath, and hopefully they never will. I think the President's
standard for judicial nominees plainly conflicts with that oath.
We have had a big discussion about that, and it is not a little bitty
matter. It is not a small matter. Judges take the oath to be impartial. I
practiced law in Federal court for many years, and I have always believed
and expected that a judge who heard my case would rule on the law fairly and
objectively. If I lost and did not have sufficient law or evidence and logic
to support my position, I did not expect to prevail. That is the kind of
concept that underlies American justice.
Aside from nominee David Hamilton, almost every one of President Obama's
nominees, including Justice Sotomayor, has rejected outright the
empathy
standard. So at first blush, I found Mr.
Viken's
answer that he believes he fits that standard to be concerning. However, his
answers to questions we submitted to him for the record provide maybe a more
complete view. This is what he said in his answer in writing:
A judge's consideration of a case must always be governed by impartiality,
evenhandedness, attention to the facts presented by the parties, and respect
for established law.
Empathy is a personal
characteristic which may assist a judge in analyzing the human circumstances
which bring people before the court. But the law and not the personal
experiences of jurists is the path to justice in considering each case.
I think that is OK. I am not sure how you can have any
empathy--empathy
is a personal characteristic, maybe? I would hate to disagree with the
President who nominated me, but that is a pretty good statement overall.
He also stated he believes that, ``The role of a Federal district judge
encompasses diligent legal scholarship''--that is true--``a strong work
ethic''--true--``impartial and dispassionate consideration of proven facts
and reasoned legal arguments, fidelity to binding and persuasive precedent,
and respect for all who appear before the court.''
I think that is good statement. I think if he will conduct himself on the
bench according to those standards he will do well. And I believe he will.
I am glad to see he is an honors graduate, but he didn't go to some of these
schools, Senator Johnson, he went to school in South Dakota; he has
practiced law before judges over the years, a lot of practice; and in the
course of that, you learn that judges really do--the good
judges--consistently try to reach the right dispassionate result.
I think he may have made some statements about
empathy
that are not perfect, but my judgment is that he has been in the courtroom
and he has been before good judges. I am hopeful he is going to be a very
good judge.
We will see. I think the issues become even more problematic when someone is
nominated for the Supreme Court or for a circuit court because those higher
courts seem to be the ones who feel less compunction in allowing their
personal views to influence cases. Because this nominee is nominated to a
seat on the district court and is confined not only by the U.S. Supreme
Court but also by his circuit, the circuit precedent, and because he stated
he believes the role of a judge entails the impartial
and dispassionate consideration of proven facts and reasoned [Page: S9920]
legal arguments, fidelity to binding and persuasive precedent, I would
certainly give him the benefit of doubt and vote in favor of his nomination.
I am hopeful he
will follow through on those statements and will interpret the law as
written, refraining from imposing personal views in his decision and will
basically follow the oath to uphold the Constitution, first and foremost.
Even if he didn't like it, he should uphold it.
In closing, I would like to quote from an essay by the former chairman of
the Judiciary Committee, Senator Hatch, which was published on Constitution
Day. He said this:
The Constitution--its words and their meaning--was established by the
people, can only be changed by the people, and is sacredly obligatory upon
all government, including judges. That is why in the debate on judicial
selection is really a debate over judicial power. It is a debate over
whether the Constitution controls judges or judges control the Constitution;
over what the Constitution really is, with nothing less than liberty itself
at stake.
I think that is an eloquent statement of the role of a judge, and why at its
most base level, policy in a democracy must be set by the elected branches
who are accountable to the people.
Judges are supposed to be neutral arbiters of the law, deciding a case based
on the law and facts, without allowing their personal, political, or
ideological views or biases to enter into the decision-making process. That
is why they put on a robe, to suggest their impartiality. That is why they
take the oath I quoted from. And that is the key ingredient of our legal
system, the greatest legal system the world has ever known.
I yield the floor.
The PRESIDING OFFICER (Mr. Lautenberg.) Who yields time? If no one yields
time, time will be divided equally. |