Executive Session

EXECUTIVE SESSION -- (Senate - July 25, 2006)

BREAK IN TRANSCRIPT

Mr. LEVIN. Mr. President, I will oppose the nomination of Jerome Holmes to the Tenth Circuit Court of Appeals. Although I do not question the integrity or qualifications of Mr. Holmes to be a Federal circuit court judge, I do have serious questions about his ability to be an impartial jurist.

While all judges have and are entitled to their personal views and philosophies, a judge's decisions should not be controlled by an inflexible ideology. When a nominee's personal views will determine or dominate their judgements, such a nominee should not be put in a lifetime position on the Federal bench.

I am concerned by statements that he has made indicating insufficient sensitivity about the irreversible errors in the implementation of the death penalty. For example, in a presentation given by Mr. Holmes, he said that:

Like any human endeavor, there is a possibility of error . . . But the statement society is sending--that certain conduct and the perpetrators of it deserve to die--is not materially diminished by the fact that in the implementation of the death penalty mistakes are made.

Mr. Holmes' statement demonstrates a lack of understanding and concern about the death penalty and the way that erroneous convictions undermine a legal system.

Mr. Holmes has also sharply criticized affirmative action programs both before and after the Supreme Court rulings and those hardline views exhibited a lack of adequate respect for Supreme Court precedent. Although he told members of the Judiciary Committee that he would follow precedent, he was vocal in his opposition to the Supreme Court's decision in Grutter v. Bollinger, criticizing the Court for missing an ``important opportunity to drive the final nail in the coffin of affirmative action''.

Because Mr. Holmes' statements do not reflect the objectivity necessary to serve in a lifetime appointment on the Federal bench, I cannot vote to confirm his nomination.

Mr. DURBIN. Mr. President, Jerome Holmes has made some troubling statements about affirmative action and the use of race in our society. He has said:

[Affirmative action] policies necessarily divide us along racial lines, and establish a spoils system based upon skin color. .....

[t]he [Supreme] court upheld the affirmative action policy of the university's law school [in the 2003 Michigan case]. And in so doing, it missed an important opportunity to drive the final nail in the coffin of affirmative action. .....

[r]ace-based scholarship programs . . . [are] constitutionally dubious and morally offensive racial classifications. .....

Al Sharpton, Jesse Jackson and their ilk have little to offer me or other African-Americans in the 21st century. They continue to peddle a misguided and dangerous message of victimization. ..... As long as Jackson and company can successfully portray African-Americans as victims to the public at large, they'll be able to wring concessions out of educational institutions like Harvard University and corporate ÐAmerica. .....

Mr. Holmes didn't make just an occasional comment against affirmative action. He has written over a dozen columns and op-ed pieces expressing his views on race and affirmative action.

I understand and accept that people in good faith can disagree about issues of race and the merits of affirmative action. It is a hard issue for many people and it stirs passions on both sides. But Mr. Holmes' statements are those of an ideological soldier. When it comes to affirmative action, Mr. Holmes seems to have open hostility, not an open mind.

In its letter of opposition to the Holmes nomination, the Leadership Conference on Civil Rights wrote: ``Mr. Holmes has been a longstanding and outspoken critic of affirmative action, and his views raise serious questions about whether he would rule impartially and fairly in cases involving affirmative action.''

I asked Mr. Holmes a simple question: Would you be willing to recuse yourself in all cases involving affirmative action?

Section 455 of title 28 of the United States Code states: ``Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.''

This seems like a simple standard, and I share the belief of the Leadership Conference on Civil Rights that Mr. Holmes presents a clear case of someone whose impartiality would be questioned when it comes to affirmative action.

But Mr. Holmes doesn't see it that way. He said he would not recuse himself in affirmative action cases. He said he would be able to put his personal views aside and rule fairly on this issue. I doubt it. He harbors such hostility to affirmative action and such disdain for those who promote it--that I believe he will not have an open mind on this issue.

We have seen judicial nominee after judicial nominee come before this committee and pledge to put their personal views aside. But they rarely do. Chief Justice John Roberts and Justice Samuel Alito said they would put their personal views aside before they were confirmed, but they have not done so.

Just in the last 2 months, Chief Justice Roberts and Justice Alito have voted to limit the scope of the Voting Rights Act. They have voted to strip whistleblower protections for prosecutors. They have voted to restrict the right to privacy so that can police officers can enter a home without knocking. They have voted to expand the death penalty and to reduce the rights of the criminally accused. They have voted to roll back 30 years of environmental protection under the Clean Water Act. And in the case Hamdan v. Rumsfeld, Justice Alito embraced the view taken by John Roberts in the appellate court that the President should have unchecked power when it comes to using military commissions for enemy combatants.

There are very real and serious consequences when it comes to confirming judicial nominees.

I also think Mr. Holmes lacks good judgment because he didn't answer several questions that I asked him during the nomination process.

For example, I asked him if be believed the Supreme Court cases of Roe v. Wade, Brown v. Board of Education, and Miranda v. Arizona are consistent with the notion of ``strict constructionism.'' Mr. Holmes refused to answer. He said: ``it would be inappropriate for me to offer my personal views as to whether these decisions are consistent with a particular school of judicial decision-making.''

Well, tell that to Deborah Cook. She was a nominee to the U.S. Court of Appeals for the Sixth Circuit a few years ago, and I asked her the same question. She answered it. I appreciated her candor, and I voted to confirm her.

I also asked Mr. Holmes to explain a statement he made about his judicial philosophy. In his Senate questionnaire, he wrote: ``The judiciary should not . . . issu[e] rulings that go beyond the resolution of the dispute before the court to impose wide-ranging obligations on societal groups.'' I asked Mr. Holmes to provide some specific examples of what he meant by this. He refused to do so.

I do not believe Jerome Holmes deserves a lifetime position on the second highest court in the country.

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