October 05, 2007

NOMINATION OF JENNIFER WALKER ELROD TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

Mr. President, I serve on the Judiciary Committee, and Chairman Leahy asked that I chair the nomination hearings, the confirmation hearings on the three judges whom we are considering today.

I agree completely with our colleagues from the State of Washington and the State of Mississippi. I think Richard Jones is well qualified and should be confirmed for the U.S. District Court in the Western District of Washington.

I think Sharion Aycock is well qualified, and I strongly support her confirmation to the District Court in Mississippi.

In regard to Jennifer Walker Elrod, for the U.S. Circuit Court for the Fifth Circuit, I opposed her nomination in the Judiciary Committee, and I take this time to explain to my colleagues why I believe she should not be confirmed.

Let me begin by saying that I agree with my friend from Texas about Judge Elrod's commitment to pro bono legal services.

She served as chair of the board of the Gulf Coast Legal Foundation, now known as Loan Star Legal Aid, the largest provider of pro bono services in southeast Texas. That is important to me because I think all lawyers have a responsibility to help out to make sure our system is available to all.

After serving 8 years in private practice as an associate of Baker Botts in Houston, TX, she was appointed to the bench by the Governor in 2002 as a judge, the 190th District Court in Houston, TX. She was reelected to the bench in 2006.

However, no one is entitled to a circuit court judgeship. In the vast majority of cases, these courts are the final law of the land for the States in their circuit when it comes to interpreting complex Federal statutes and our Constitution. These judges have lifetime appointments and are second only to the Supreme Court Justices in terms of their power and authority.

 I think we need to exercise a higher standard when we look at the confirmation of our appellate court judges. In many cases, they will be the final arbitrators of disputes among the people of our States.

In meeting with Judge Elrod, chairing her nomination hearings, and reviewing her written responses to additional questions I posed to her, I am not convinced Judge Elrod has the experience for this position.

I start with the undisputed fact about Judge Elrod's record. By her own admission, Judge Elrod has never written a single judicial opinion. In response to the Judiciary Committee's questionnaire asking for her opinions as a judge, she stated: I do not write opinions, I sign orders.'' She provided over 6,000 orders to the committee, but most are one-page documents that do not contain any discussion of substantive law. Indeed, Judge Elrod said that most questions in our committee questionnaire about her judicial opinions were not applicable to her because certiorari was not granted in any of her cases; appellate opinions or orders rarely reviewed her orders and decisions; she had no list of unpublished opinions; and she never sat on a judicial panel with other colleagues deciding cases. In short, we have no record of her ability to write opinions or the rationale for her decisions.

A nominee for circuit court judge should have experience in writing substantive judicial opinions. Judge Elrod does not have this requisite experience.

Judge Elrod, by her own admission, has very little experience in criminal cases. When she litigated at Baker Botts for 5 years, she responded that her practice involved 100 percent civil proceedings'' and 0 percent criminal proceedings.'' Her current job as a judge on the 190th District Court of Houston, TX, involves almost exclusively civil cases.

A nominee for circuit court judge should have broad experience in both criminal and civil cases. Her work in a handful of pro bono cases does not give me confidence that she has sufficient understanding of the criminal justice system and the rights of defendants. In fact, her major initiative in criminal issues involved the amicus brief in the case of Texas v. Cobb before the Supreme Court, in which she argued that the sixth amendment only applies to charged offenses'' and therefore a police interrogation without counsel about a subsequent offense was admissible. She did not further explain her views about this case in her written responses to our committee.

Judge Elrod, by her own admission, has very little experience in Federal court. In response to the committee questionnaire, she stated that her private practice involved 80 percent state court'' cases and 20 percent federal'' cases. Her current job as a State district court judge involves almost exclusively State issues.

A nominee for circuit court judge should have broad experience on Federal court issues and in the complex questions, often of first impression, of Federal law, statutory law, and constitutional interpretation that are routinely raised.

Judge Elrod, by her own admission, has very little experience in appellate litigation, with exception of the Cobb case noted above. Her current job as a State district court judge involves exclusively trial level proceedings.

A nominee for the circuit court--this is our appellate court, our second highest court--who handles these types of cases should have significant experience in appellate work.

Judge Elrod, by her own admission, does not write opinions.'' She signs orders.'' Given that circuit court judges are often the final say on law of the land in a given circuit--due to the low rate of granting certiorari by the Supreme Court--a circuit court judge has an unusual amount of authority and decisionmaking power.

We do not have any track record by which to weigh Judge Elrod's views on substantive legal issues, such as civil rights, civil liberties, workers' rights, reproductive freedom, environmental protection, consumers' rights, or employees' rights.

The speeches Judge Elrod provided for the record did not shed any more light on her opinions on substantive legal issues. She stated she did not have notes for many of her speeches. She also has not written any substantive legal or journal articles on complex legal or policy issues. Judge Elrod does not meet my test for Federal judicial nominees since she does not have the requisite experience for an appellate judge.

I want to talk about a separate issue. I talked about experience, which I think is important for a nominee who wants to serve on our appellate courts. I also think the issue of diversity is an important issue that needs to be talked about in this Chamber.

I wish to talk about the issue of diversity in the Fifth Circuit Court of Appeals. The U.S. Court of Appeals for the Fifth Circuit, which includes Mississippi, Louisiana, and Texas, presides over the largest percentage of minority residents, 44 percent, which includes African Americans and Latino citizens, of any regional circuit courts of appeal in this country outside of Washington, DC.

Mississippi has the highest African-American population, 36 percent, of any State in the country. Louisiana has the second largest African-American population, at 32 percent, of any State in this country. It is disappointing that none of President Bush's 10 nominations to the Federal bench in this circuit were African American. Of the 19 Federal judges who now sit on the Fifth Circuit Court of Appeals, only one is African American.

We all agree that diversity at all levels of our judicial system is important. Most recently, we have seen mass protests over double standards in our criminal justice system used to treat African American and White youths in Jena, LA. Surely, in 2007 we can do better.

I take this time to point out that when the President submits a nominee for the appellate court, our second highest court, I expect that nominee will have the type of experience that is appropriate for a judge to be on the appellate court. I certainly am disappointed by the President's nominations on this circuit as it relates to diversity. I wanted to make sure that was included in the Record .