Leahy: Debate On Chen Nomination Long Overdue

The Senate today is debating on the nomination of Edward Chen to fill a judicial emergency vacancy on the Federal District Court for the Northern District of California.  Chen was first nominated for the vacancy on August 6, 2009.  He has four times been reported by the Judiciary Committee.


Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,

On the Nomination Of Ed Chen

To The District Court For The Northern District Of California

May 10, 2011

Today the Senate will finally consider the nomination of Judge Edward Chen to fill a judicial emergency vacancy on the District Court for the Northern District of California.  Since 2001, Judge Chen has been a well-respected Federal Magistrate Judge on the court to which he is now nominated to serve as a Federal District Judge.  His nomination has received the strong and consistent support of his home state Senators, Senator Feinstein and Senator Boxer, since he was first nominated over 21 months ago.  When he is confirmed, Judge Chen will be only the second Asian Pacific American to serve on the district court bench in the 150-year history of the Northern District of California.  The debate and vote we have today are long overdue. 

We are finally able to consider Judge Chen’s nomination because of the vote the Senate took last week toward restoring a longstanding tradition of deference to home state Senators with regard to Federal District Court nominations.  The Senate turned away from a precipice when 11 Republican Senators joined in voting to end a filibuster of the nomination of Jack McConnell to the District Court for the District of Rhode Island.  In doing so, a super majority of the Senate came together to reject a new standard, which I believe is being unfairly applied to President Obama’s district court nominees.  Now, nearly 20 months after his confirmation hearing, and after having had his nomination reported favorably by the Judiciary Committee four times, Judge Chen’s nomination will at last have an up-or-down vote in the Senate.

We should have taken up and confirmed his nomination when it was first reported favorably by the Committee nearly 19 months ago.  The supposed “controversy” that has delayed and obstructed this nomination is in my view entirely misplaced, the result of applying a partisan litmus test.  This should be an easy nomination to confirm.  It is no surprise that Judge Chen’s nomination received the highest possible rating from the American Bar Association’s Standing Committee on the Federal Judiciary, unanimously “well qualified,”  since he has had a distinguished legal career and has issued over 350 judicial opinions in his decade as a Federal Magistrate Judge.  

Judge Chen’s nomination has received broad, bipartisan support from the judicial and legal community in California and from numerous bar associations, including the National Asian Pacific Bar Association, which has been a vocal proponent of this nomination.  Judge Chen’s nomination also has significant support from local law enforcement in the district he currently serves and would continue to serve if confirmed.  Michael Hennessey, Sheriff for the City and County of San Francisco, wrote: “Judge Chen’s solid record as a U.S. Magistrate Judge speaks for itself. He has published over three-hundred judicial opinions which are indicative of his work ethic and his thoughtful intellect as a respected magistrate judge.”  This praise is representative of the scores of letters of support we have received.

I thank Senator Feinstein for her strong advocacy for Judge Chen’s nomination the four times it has been considered and favorably reported by the Judiciary Committee.  Any fair minded person who listened to the impassioned speeches Senator Feinstein has made about Ed Chen in the Committee would have to be impressed.  Senator Feinstein is right to be proud of her recommendation of Ed Chen to President Obama.  As Senator Feinstein has explained, Judge Chen was the recommendation of her bipartisan Judicial Advisory Committee in California, putting the lie to the caricature from the far right that this was a partisan nomination.  This is a fine man with sterling legal credentials and all the qualifications needed to be an outstanding Federal judge.  

The approach taken by opponents of Judge Chen’s nomination threatens to take the Senate down a dangerous path of imposing partisan litmus tests in place of our constitutional duty to offer advice and consent on nominations.  The debate in our Committee on Judge Chen’s nomination was ugly.  One Republican Senator in explaining his opposition said that Judge Chen has the “ACLU gene.”  I hope that we do not hear such a preposterous notion repeated today on the floor of the Senate.  This is a distinguished Federal Magistrate Judge who has demonstrated that he knows how to be a fair and impartial judge.  

Our legal system is an adversary system, predicated upon legal advocacy for both sides.  Certainly defending civil liberties is no vice.  The other side appears to be suggesting that Judge Chen’s work as a staff attorney at the ACLU many years ago, primarily representing individuals in discrimination and civil rights matters, somehow renders him unfit to be a judge.   Since when do we impose a litmus test for nominees that they can never have been legal advocates?   If we were to do that, we would have no judges.  Almost every nominee who had been a practicing lawyer would be disqualified by one side or the other. 

Surely Judge Chen’s work while in private practice as a member of the legal team that represented Fred Korematsu in a lawsuit that successfully overturned his prior conviction for violating the Japanese Internment Order during World War II does not render Judge Chen unfit to be judge.  In my view, that important advocacy to right a wrong from one of the dark chapters in our history serves as proof that President Obama made a wise choice in nominating Judge Chen for the Federal bench.  Indeed, just a few years ago this Senate passed a resolution acknowledging that wrong and seeking to help right it.

The question for me about this nominee is the same question I have asked about every judicial nominee, whether nominated by a Democratic or a Republican president -- whether he or she will have judicial independence.  Does the nominee understand the role of a judge, and how it differs from the role of an advocate?

With this nominee, Judge Chen, that is not a hard question to answer.  We know that he understands the role of a judge because he has been doing it for 10 years on the Court to which he has now been nominated.  As Judge Chen said in response to a question from Senator Sessions: “The role of a judge is to be fair, neutral, and evenhanded in applying the law and finding facts . . . without regard to personal preferences.”   His 10 years as a Federal magistrate judge resoundingly have answered any concerns about bias or partisanship on his part.  His testimony before the Judiciary Committee reflects his understanding of the proper role of a judge.

There was no need for the delays that plagued this nomination.  There were no “extraordinary circumstances” that held up this nomination for nearly two years.  With judicial vacancies at crisis levels, affecting the ability of courts to provide justice to Americans around the country, we should be debating and voting on each of the 12 judicial nominations reported favorably by the Judiciary Committee and pending on the Senate’s Executive Calendar, in addition to Judge Chen.  No one should be playing partisan games and obstructing while vacancies remain above 90 in the Federal courts around the country.

Judge Chen, born and raised in Oakland, California as the son of two Chinese immigrants, spent much of his childhood helping his mother and siblings support a small family business after his father passed away.  After earning his A.B. from the University of California, Berkeley, in 1975, and his law degree from Boalt Hall School of Law in 1979, Judge Chen clerked for Judge Charles Renfrew on the court to which he has now been nominated, the Northern District of California, and then for Judge James Browning on the Ninth Circuit.  After a distinguished career in private practice and as a staff attorney for the American Civil Liberties Union Foundation of Northern California, Judge Chen was selected to serve as a Federal Magistrate Judge for the Northern District of California, having since been reappointed upon the recommendation of the nonpartisan Merit Selection Review Panel.  His story is a moving reminder of what it is possible to achieve in this great Nation through hard work.

I congratulate Judge Edward Chen and his family on his confirmation today.  I commend Senator Feinstein and Senator Boxer for their steadfast support of his nomination.

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