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Public Statements

Executive Session

Floor Speech

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Location: Washington DC

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Mr. GRASSLEY. Mr. President, I rise in opposition to the nomination of Gershwin A. Drain, to be U.S. district judge for the Eastern District of Michigan. Judge Drain, currently serving as a Michigan State court judge, was reported out of committee on a 10 to 8 vote. He could hardly be described as a consensus nominee.

Even as we turn to the 155th nominee of this President to be confirmed to the district and circuit courts, we continue to hear unsubstantiated charges of obstructionism. The fact is, we have confirmed over 80 percent of President Obama's District nominees. That exceeds the percentage for President Bush at this stage in his Presidency.

During the last Presidential election year, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. This Presidential election year we have already exceeded those numbers. We have confirmed 5 circuit nominees, and Judge Drain would be the 28th district judge confirmed. That is a total of 33 judges this year versus 28 in the last Presidential election year. Again, there is no credible basis to argue that this President is being treated differently.

With regard to Judge Drain, I will not take the time to mention every aspect of his record that I find troubling, but I do want to highlight some of my concerns.

In 1994, Judge Drain wrote an article that was published in the Michigan Chronicle concerning the second amendment and the right of American citizens to own and possess firearms. Judge Drain wrote that he ``envisions a day when the National Rifle Association with its lobby will not be feared, and that legislators and congressman will stand up strong against them instead of bowing down to them.'' He also wrote that he ``looks forward to the time when a person with a gun will be viewed as a coward or a chicken.''

I would note that it is not as if Judge Drain was a young and inexperienced lawyer when he took this view. On the contrary, he wrote this article after he had been serving as a judge for approximately 7 years. I recognize that Judge Drain told Senator Lee at his hearing that, if confirmed, he would follow the precedent in McDonald and Heller. But, I also know that when individual has such strong and well-established views on a particular subject, it can be very difficult for them to set aside those strongly held views.

Judge Drain also has very strong views regarding his opposition to the death penalty. In an article he authored in the Detroit News, he referred to the death penalty as a ``primitive punishment that is brutal and barbaric.'' He also said that deterrence was ``the only reasonably legitimate argument for killing the convicted,'' but he said deterrence was actually a ``myth.'' Now, at his hearing, Judge Drain said that he wrote that article many years ago and he no longer holds to that position. But again, given how Judge Drain appears to have held very strong views on this issue, I am concerned that he would not be able to completely set those views aside.

His views on criminal sentencing concern me as well. Judge Drain has been strident in his opposition to mandatory sentences. He once wrote that, as a judge, ``one of my unpleasant tasks on occasion is to impose mandatory sentences.'' On another occasion, he expressed admiration for judges who refuse to hear drug cases where the law would require them to impose mandatory sentences. He called the judges who refuse such cases ``courageous.'' In my view, judges should accept the cases that are assigned to them, and it is their duty to do what the law requires of them. If they are unable to do that, then they should not be a judge.

At the State level, he urged his legislature to eliminate mandatory sentencing. At the Federal level, he criticized President Clinton's ``three strikes and you're out'' legislation.

At his hearing, I asked him about his views on sentencing. I appreciate that he acknowledged that his obligation is to follow the law. And then he added, ``The fact that I wrote some side comments about [sentencing], really shouldn't have anything to do with my decision-making, and is really kind of irrelevant or unimportant to me.''

However, Judge Drain's articles and comments are not irrelevant. As I evaluate the nominee, I have to be comfortable that he will be able to set aside his strongly held personal views and do what the law requires. Unfortunately, I am unable to reach that conclusion. I am sure Judge Drain is an admirable man, but I am unable to support him for the Federal bench.

Judge Drain received his B.S. from Western Michigan University in 1970 and his J.D. from the University of Michigan Law School in 1972. Upon graduation, he clerked for the Michigan Third Circuit Court judges. In 1973, Judge Drain worked as an attorney for a year in the department of transportation in Detroit. There, he handled property damage and minor personal injury cases. From 1974 to 1986, he worked as a Federal public defender in Detroit on felony cases. He handled cases where defendants were charged with a variety of crimes, including drug violations, bank robberies, counterfeiting, mail theft, interstate transportation of stolen property, and gun charges.

In 1986, Judge Drain was appointed to the 36th District Court for the city of Detroit. There, he had jurisdiction over traffic violations, landlord-tenant disputes, misdemeanors, and civil cases where the amount in controversy was less than $25,000. In 1987, he was appointed to the Recorder's Court for the city of Detroit, where he presided over felony prosecutions.

Judge Drain was elected to the Third Circuit Court of Michigan in 1997, where he presided over felony prosecutions in Wayne County until 2000. In 2000, he became a civil judge in the Third Circuit and presides over State civil cases where the amount in controversy exceeds $25,000.

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