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Mr. GRASSLEY. Mr. President, today we are going to turn to a nomination that the Senator from California has just referred to, Paul Watford, to be circuit judge for the Ninth Circuit. I am disappointed that the majority leader has brought this nomination to the floor.
The reason I say that is there are at least 10 nominations on the Executive Calendar that might fall into the category of consensus nominees. Six nominees on the calendar had significant opposition in committee and clearly are not consensus nominees. Mr. Watford falls into this category of not being a consensus nominee.
I will oppose Mr. Watford's nomination and ask my colleagues to oppose the nomination as well. My opposition to this nomination is based upon substantive concerns that I have regarding Mr. Watford's views on both immigration and the death penalty.
Mr. Watford partnered with the American Civil Liberties Union and the National Immigration Law Center in two cases to oppose Arizona's 2010 immigration bill. In the first case, Friendly House, a class action lawsuit, Mr. Watford served as cocounsel for most of the plaintiffs, including the class action representative Friendly House.
The Friendly House complaint attacks the Arizona law on a variety of grounds. He argued the law violates the Supremacy clause; that it violates the Equal Protection clause by promoting racial profiling; that it violates the first amendment by chilling the speech of non-English speakers; that it violates the fourth amendment; and that it violates due process by inviting racial profiling and employing vague definitions of ``public offense'' and other statutory terms.
In the second case, United States v. Arizona, Mr. Watford served as cocounsel on an amicus brief filed by the Friendly House plaintiffs. This brief covers most of the arguments raised in the Friendly House complaint. But in addition, it asserts that Arizona ``fails to account for the complexities and realities of Federal immigration law'' because individuals lacking immigration registration documents are put at risk of ``constant and repeated criminal prosecution.''
I do not believe an attorney should be held accountable for the legal positions he advocates on behalf of a client. Of course, there are some exceptions to that general rule; for instance, if the legal positions are far outside the mainstream of legal theory, are frivolous or indicate an unacceptable level of professional competence. However, in this case, Mr. Watford has not simply argued on behalf of a client, he adopted those legal theories as his very own. On July 14, 2010, Mr. Watford gave a speech analyzing the constitutionality of the Arizona law. His speech concentrated on ``why S. 1070 is unconstitutional,'' and he recapped many of the arguments he made in the Friendly House case.
Moreover, despite the fact that he discussed his views on immigration publicly, he nonetheless declined to answer many of my questions during his hearing before the Judiciary Committee. For instance, I asked about an argument in his brief that the Arizona statute prohibiting illegal aliens from soliciting work somehow violated the first amendment. The nominee responded that it would be inappropriate for him to comment on questions related to whether illegal immigrants were entitled to constitutional protections other than those contained in the fifth, sixth and fourteenth amendments. Again, remember, he had already given a speech on this topic, so I was disappointed that he would not share his views on these important topics.
With regard to the death penalty, Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups that opposed Kentucky's three-drug lethal injection protocol.
In its plurality opinion, the Court rejected the arguments raised in the brief. Ultimately, Kentucky's three-drug protocol was upheld on a 7-to-2 vote in the Supreme Court.
At the hearing we had for Mr. Watford, in following up questions, Mr. Watford gave the standard response that he would follow Supreme Court precedent regarding the death penalty. Yet it is very curious to me that he would go out of his way to provide his services to a case that would undermine the death penalty.
Furthermore, his concession that he would give consideration to foreign or international law in interpreting the meaning of the Cruel and Unusual Punishment clause makes me wonder how he would approach this issue.
I have other concerns based on positions this nominee has taken in his legal advocacy, as well as some of his presentations.
I am generally willing to give the President's nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined. But I don't think this nominee meets these requirements.
Finally, Republicans continue to be accused of obstruction and delay when it comes to judicial nominations. This comes even as we have now confirmed 145 of this President's district and circuit court nominees. That, of course, is during a period when we also confirmed two Justices to the Supreme Court. The last President who had two Supreme Court nominees had only 120confirmations. So this argument of obstruction, of delay, and of unfairness doesn't hold up.
I remind my colleagues on the other side of the aisle of the obstructionism, delay, and filibusters, which they perfected. The history of President Bush's nominees to the ninth circuit provides some very important examples.
President Bush nominated nine individuals to the ninth circuit. Three of those nominations were filibustered. Two of those filibusters were successful. The nominations of Carolyn Kuhl and William Gerry Myers languished for years before being returned to the President. A fourth nominee, Randy Smith, waited over 14 months before finally being confirmed after his nomination was blocked and returned to the President. After being renominated, he was finally confirmed by a unanimous vote.
President Obama, on the other hand, has nominated six individuals to the ninth circuit. Only one of those nominees was subject to a cloture vote. After that vote failed, the nominee withdrew. If confirmed, Mr. Watford will be the fourth nominee of President Obama nominated to serve on the ninth circuit. Those four confirmations took an average of about 8 months from the date of nomination.
For all of President Obama's circuit nominees, the average time for nomination to confirmation is about 242 days. For President Bush's circuit nominees, the average wait for confirmation was 350 days. Given this history that I have spelled out, one might wonder then why President Bush and his nominees were treated differently and so much more unfairly than President Obama's nominees.
Mr. Watford received his B.A. from University of California, Berkeley in 1989 and his J.D. from the University of California, Los Angeles (UCLA) School of Law in 1994. Upon graduation, he clerked for Judge Alex Kozinski on the Ninth Circuit and then for Justice Ginsburg on the Supreme Court. In 1996, he began working as an associate in the Litigation Department at the Los Angeles law firm of Munger, Tolles & Olsen. From 1997 2000, Mr. Watford was an Assistant United States Attorney in the U.S. Attorney's Office for the Central District of California, in Los Angeles, handling a variety of criminal prosecutions, such as immigration, narcotics, firearms trafficking, bank robbery, computer fraud, mail and wire fraud, and securities fraud.
In 2000, Mr. Watford returned to private practice as an associate in the appellate practice group at Sidley & Austin's Los Angeles office. In 2001, he rejoined Munger, Tolles & Olsen as an associate, becoming a partner there in 2003. His practice focuses primarily on appellate litigation, specifically business and commercial disputes. Mr. Watford has also taught a course on Judicial Opinion Writing at the University of Southern California's Gould School of Law for three semesters (2007, 2008, and 2009).
The ABA Standing Committee on the Federal Judiciary unanimously rated him as Well Qualified for this position.
I yield the floor and suggest the absence of a quorum.
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