Judiciary Committee taking up confirmations of controversial bench nominees
posted at 10:10 am on September 23, 2010 by Ed Morrissey
Jeff Sessions is ringing the alarm bells on Judiciary Committee hearings set to take place today for five Barack Obama nominees to the federal bench. The Senate, which has few days left on its pre-midterms legislative calendar, wants to quietly move these five picks to floor votes while Republicans will still have difficulty blocking their confirmations. In at least two of the cases, and perhaps all five, people may want a better look at these appointments, which one can see here and now, as the hearing is already underway for a whole slate of nominations.
Sessions’ office released the following criticisms of the five appointments he opposes:
Robert Chatigny (Second Circuit)
As a federal district court judge in Connecticut, Chatigny did everything in his power to prevent the execution of confessed serial killer and rapist Michael Ross (the “Roadside Strangler”). Chatigny even claimed that Ross’ “sexual sadism” was a “mitigating factor” that made him less culpable for his crimes. Chatigny also has never given more than the minimum sentence in every child porn case over which he has presided, and found Megan’s Law to be unconstitutional (overruled unanimously by the U.S. Supreme Court).
- Serial killer Michael Ross was convicted of the kidnap, rape, and murder of six Connecticut women ages 15 to 25. After granting two stays of execution, which were both reversed by appellate courts, Chatigny bullied Ross’ lawyer into filing for an additional stay despite the fact that, after almost 20 years on death row, the murderer didn’t want to appeal anymore. Chatigny asserted that the murderer suffered from death row syndrome, was not competent to waive further appeals, called him “the least culpable person on death row,” and argued that he “never should have been convicted” because his sexual sadism was a mitigating factor.
- After the case concluded, prosecutors discovered that Judge Chatigny previously had been involved in the case as a private attorney, but failed to disclose it. His actions resulted in seven state prosecutors filing an ethics complaint against him and a Connecticut congressman calling for his impeachment.
- Chatigny also has a long record of “downward departures” where has given a lighter sentence than the minimum recommended by the federal Sentencing Guidelines. For example, in the 12 child pornography cases he handled as a judge, he issued a sentence less than the minimum eight times and issued the minimum under the guidelines the other four times. He never once issued more than the minimum sentence in a child porn case.
- He also struck down part of Connecticut’s Megan’s Law, requiring the registration of sex offenders, only to be reversed by a unanimous U.S. Supreme Court.
Goodwin Liu (Ninth Circuit)
A Berkeley professor with no experience as a judge or practicing attorney, Liu believes that government healthcare and welfare are constitutional rights, and that foreign law should be used in American courts.
- He has written that “expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit” are positive Constitutional rights.
- He believes that it is acceptable for American judges to use foreign law in interpreting our Constitution, saying that “the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.”
- He does not believe judges are bound to apply the Constitution according to its written meaning, but rather are free to “adapt” the Constitution “in light of changing needs, conditions, and understandings of our society.”
- He believes the Constitution is a “living document,” is “indeterminate,” and subject to “socially situated modes of reasoning that appeal… to… culturally and historically contingent meanings.”
Edward Chen (Northern District of California)
A former staff attorney for the ACLU, Chen has been involved in many controversial causes and has made numerous inappropriate statements while sitting as federal magistrate judge. For instance, Chen said he did not feel patriotic pride when hearing “America the Beautiful,” but rather “ambivalence and cynicism.”
- For 16 years, Chen worked as a Staff Attorney for the ACLU. During this time, he made several controversial statements and took positions in litigation that raise questions regarding whether he will faithfully and impartially apply the law. For example, he strongly opposed English-only and anti-affirmative action proposals and opposed injunctions against gang-related activity in residential neighborhoods and private-sector drug testing.
- During a speech to the liberal American Constitution Society, Chen said that he finds “most rewarding… [c]ontributing to the development of the law via published opinion, especially if it comports with [his] view of justice.”
- He echoed President Obama’s infamous empathy standard and argued that “judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experiences.”
- Speaking about the 9/11 terrorist attacks, he said that he “had a sickening feeling in [his] stomach about what might happen to race relations and religious tolerance on our own soil… [O]ne has to wonder whether the seemingly irresistible forces of racism, nativism and scapegoating which has recurred so often in our history can be effectively restrained.”
- He characterized as “institutionalized racism” the “federalization of state crimes” and the “[c]riminalization of immigration laws,” and he suggested that the slow response to Hurricane Katrina was due to racism.
Louis Butler (Western District of Wisconsin)
Louis Butler is such a judicial activist that Wisconsin voters twice rejected his candidacy for a seat on the state’s supreme court, yet President Obama insists on ignoring their expressed will and imposing Butler on the people of Wisconsin by nominating and now re-nominating him to the federal district court.
- While on the Wisconsin Supreme Court, Butler was notoriously activist, repeatedly disregarding the policy decisions of the legislature and binding precedent, and instead inserting his own policy preferences.
- In one case, he held that a manufacturer could be held liable for injuries from a product that, as the dissent explained it, the manufacturer “may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”
- In another case, Butler somehow interpreted a voter-approved constitutional amendment clearly written to expand gun-carrying rights as instead limiting gun-carrying rights.
- As a practitioner, he earned—and publicly embraced—the nickname “Loophole Louie,” for winning reversals of his clients’ criminal convictions.
Jack McConnell, (District of Rhode Island)
Jack McConnell is a personal injury attorney who has demonstrated hostility against business and whose pattern of making large campaign donations to State Attorneys General who grant him lucrative contingency-fee contracts raises troubling ethical questions.
- McConnell is a pioneer of the controversial practice of private attorneys representing State Attorneys General on contingency-fee contracts. At the same time, he has taken the unseemly step of contributing substantial amounts of money to political campaigns of the very Attorneys General awarding them, raising serious questions of pay-to-play.
- After McConnell’s questionable theory of liability against lead paint manufacturers was unanimously rejected by the Rhode Island Supreme Court, he publicly attacked the decision as letting “wrongdoers off the hook,” revealing a preference for outcome-driven judicial decisions.
The United States Chamber of Commerce, which historically has never taken a position on a nominee to the District Court, has publicly opposed this nomination, citing McConnell’s “actions during his career as a personal injury lawyer and past statements [that] demonstrate his disregard for the rule of law, an activist judicial philosophy and obvious bias against businesses.”
I’ve written about Liu once before, and Allahpundit has written about Chatigny. Chen and McConnell don’t exactly seem to be my cup of tea, but I don’t think being a jerk is necessarily a bar to being on the bench. (Litigators may feel differently, of course.) The arguments against their appointments seem more a matter of taste than competence or corruption, and in that context, a President should be entitled to his bench appointments; that’s one of the perks of winning the election, and one of the reasons why elections matter.
In the case of Butler, though, one has to wonder why Obama went out on a limb to appoint a jurist who got rejected twice by Wisconsin voters. Democrats are already losing Wisconsin in this midterm cycle, thanks to Democratic arrogance in the Obama term. I don’t begrudge him the Loophole Louis monicker, since defense attorneys are supposed to represent their clients as fully as possible, but the other points in this memo should be aired widely, especially Butler’s views on gun control, which will run into direct conflict with McDonald and Heller. But beyond that, someone should ask the White House why they couldn’t find someone other than a twice-rejected retread for this post.
If readers find these appointments as objectionable as Sessions does, then they should follow the first link and start calling Senate offices immediately to express their opposition to them.
Update: William Jacobson has more on McConnell at Legal Insurrection:
I have written before about John “Jack” McConnell, Jr., a major Democratic Party campaign donor who had been nominated by Sheldon Whitehouse (D-RI) to an open seat on the U.S. District Court in Rhode Island.
In addition to questions surrounding the propriety of nominating someone who had donated several hundred thousand dollars to Democrats — including many in the Senate who would vote on his confirmation — there were allegations that McConnell’s law firm had misrepresented certain fees it earned during lead paint litigation for which it was hired by then Attorney General Sheldon Whitehouse. The Ocean State Policy Research Institute, a conservative think tank, had served a public records request seeking information on the fee arrangement, but was rebuffed by McConnell’s law firm and the state.
McConnell’s name was left off the list of judicial nominees set for a floor vote over the summer, after Republican objections, which meant McConnell’s nomination had to go back to the Judiciary Committee. The nomination is coming up for committee vote today, but Republicans have indicated they still will not allow the nomination to get to the floor. Lindsay Graham was the only Republican to vote for McConnell the first time McConnell came up for a Judiciary Comittee vote.
Open, honest government! Be sure to read all of William’s post and the links to his earlier posts on McConnell.