Kennedy on Holmes Nomination to the U.S. Court of Appeals

Kennedy on Holmes Nomination to the U.S. Court of Appeals

"The Senate's exercise of its advice and consent power when it considers nominees to the federal bench is one of our most important constitutional responsibilities. We are conferring on men and women the power to interpret and apply our laws for the rest of their lives. It is the last opportunity that any of us have to sit in judgment of them.

Our task is not to evaluate a nominee based on politics but rather to consider other important criteria. We start with the essential elements of professional excellence and personal integrity, but we must also evaluate the likelihood that nominees will be fair and open-minded judges, who bring compassion and understanding of the history and fundamental values of America to the bench.

In considering a nomination to our federal Courts of Appeals, we must exercise special care. The Supreme Court accepts few cases out of the thousands of cases it is asked to hear every year. The federal appellate courts are almost always litigants' last hope for justice from our legal system. For those who seek relief from race and sex discrimination at work or school, for criminal defendants who have been wrongly deprived of their liberty or sentenced to death, and for those who seek to protect our liberties—the Circuit Courts of Appeal are almost always their last hope for justice.

The record of Jerome Holmes demonstrates that he is not a nominee we can afford to entrust with the judicial power of the United States. His professional qualifications are not in dispute, but he has taken extreme public stances on issues that regularly come before our courts. These stances suggest that he will not approach these issues with an open mind or fairly apply the law in these areas.

Perhaps most troubling are Mr. Holmes' strong and repeated statements denouncing affirmative action. Just last week, this body reauthorized the Voting Rights Act, one of America's greatest achievements in the effort to overcome centuries of racial oppression. During that debate, numerous Senators had occasion to revisit the legacy of racially motivated violence, discrimination and disenfranchisement that oppressed so many in this country. And we had occasion to reflect on the need for strong and complete remedies for those centuries of discrimination that would eliminate it root and branch.

Affirmative action is an effective and necessary remedy that must be available if we are to provide opportunity for all, by breaking down persisting barriers and making it possible for all Americans to demonstrate their abilities and fulfill their potential. Yet, Mr. Holmes has repeatedly denounced affirmative action as both immoral and unlawful.

Shortly after the Supreme Court struck down the University of Michigan's affirmative action program for undergraduates, but upheld the Law School's program, Mr. Holmes wrote: "The court did not go far enough: Affirmative action is still alive." He lamented that the Court "missed an opportunity to drive the final nail in the coffin of affirmative action." He called affirmative action a "quota system" and accused it of perpetuating a society in which "race unfortunately still matters." He referred to scholarships for minority students as "constitutionally dubious and morally offensive."

We know that race does still matter in our society, which is the very reason that lawful affirmative action programs are needed. They guarantee opportunity for minority students, who because of discrimination and its legacy might otherwise never be able to excel. We all hope for the day that individuals will not be denied opportunity because of race. But until we reach that day, affirmative action programs are part of the solution - not the problem.

Mr. Holmes' extreme statements make it impossible to believe that he will approach affirmative action cases with an open mind. He says he will fairly apply our nation's affirmative action laws, which have helped—and continue to help—women and racial minorities overcome centuries of discrimination, but his bland assurances are far from sufficient to overcome his record.

His views on our criminal justice system are also disturbing. He has put on a set of ideological blinders to ignore the invidious racial discrimination that persists in criminal trials and sentencing. When a defense lawyer in Oklahoma had the courage to suggest that African Americans accused of committing crimes against whites in Oklahoma City could not receive a fair trial, Mr. Holmes delivered a swift rebuke. Not only did he dismiss the effect of racial bias, he also chastised the defense lawyer for even raising the issue, contending that he had undermined the public's confidence in the judicial system. The problem of racial bias in juries is an important issue in the criminal justice system that merits discussion and recognition that we should be seeking effective remedies, not blaming the messenger.

By approving this nominee, the Senate would send a message that we don't care about the racial disparities in our criminal justice system. If we confirm an appellate judge who ignores the reality of such disparities, we can't expect the public, especially minorities, to believe that they will get a fair day in court. The fact that Mr. Holmes stated these views while serving as deputy criminal chief of a U.S. Attorney's office only reinforces my concern about his ability to separate his extreme personal ideology from his actions as a judge, if we confirm his nomination.

Mr. Holmes' aggressive support for the death penalty raises special concern. He said that the statement society sends through the death penalty "is not materially diminished by the fact that…mistakes are made" in imposing the death penalty. Unlike Mr. Holmes, most death penalty supporters appreciate the severity of a death sentence. It is an irreversible punishment, which means that we must do everything in our power to reduce the possibility of mistakes. Many death penalty advocates have supported expanded use of DNA testing and other tools to avoid mistakes in capital cases.

Taking an extreme position yet again, Mr. Holmes has no respect for these concerns. He is more interested in the symbolism of the death penalty than the fact that an individual life will end. Because the Supreme Court hears so few death penalty cases, appellate courts often have the final word on the life or death of criminal defendants. We should not support the confirmation of a federal judge who has so little respect for this grave responsibility.

The Senate has supported the overwhelming majority of the President Bush's judicial nominees. I've voted for the confirmation of dozens of judges with whom I have ideological differences. However, the nomination of Jerome Holmes is different. I do not believe that he will serve on the federal bench with a fair and open mind. I therefore cannot support the confirmation of Jerome Holmes to the Tenth Circuit, and I urge the Senate to oppose him."

http://www.tedkennedy.com/journal/1050/kennedy-on-holmes-nomination-to-the-us-court-of-appeals