Senate Proceeding on Sep 17th, 2009 :: 4:07:40 to 4:29:20
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4:07:26 to 4:07:50( Edit History Discussion )

Jeff Sessions: quorum call: mr. sessions: mr. president? the presiding office senator from alabama. mr. sessions: i ask that the quorum call be dispensed with. the presiding officer: without objection, so ordered. mr. sessions: mr. president, i'd like to speak today on president obama's nominee for the second circuit court of appeals, the court one step below the united states supreme

4:07:40 to 4:29:20( Edit History Discussion )
Speech By: Jeff Sessions

4:07:53 to 4:08:14( Edit History Discussion )

Jeff Sessions: i'vearefully reviewed judge lynch's background and rulings as a district court judge. he is a colombia law graduate, former federal prosecutor in the southern district of new york. for the most part he's been a very good district judge. he's exceedingly capable and a man of high integrity. after reviewing his record and responses to questions from the senate judiciary committee, i've

4:08:15 to 4:08:35( Edit History Discussion )

Jeff Sessions: decided to support confirmation. i do adhere to his judicial oath which requires judges to administer justice without respect to persons. that's the oath. and to do equal, says, to do equal right to the poor and the rich.

4:08:36 to 4:08:57( Edit History Discussion )

Jeff Sessions: and to faithfully and impartially, impartially discharge and perform their duties under the constitution and laws of the united states and not above it. in response to my questions, judge lynch has affirmed that circuit courts have no greater freedom than a district court judge to decide law outside the

4:08:58 to 4:09:18( Edit History Discussion )

Jeff Sessions: bound of precedent, but they must apply the law and the precedent to which they are bound. judge lynch also stated that a judge is to apply the law impartially and -- quote -- "should not identify with either side in a case." even though

4:09:19 to 4:09:39( Edit History Discussion )

Jeff Sessions: lynch and admire him and enjoyed meeting with him, i want to share some concerns about his rulings a made over the years that i think are matters that ought not to go unremarked on before his confirmation. the role of a judge is to follow

4:09:40 to 4:10:00( Edit History Discussion )

Jeff Sessions: the law regardless of personal politics, feelings, preferences or ideology. i'm certain that whether judge lync has -- and i think for the most part he's done that in his cases. one case that's troubling,

4:10:01 to 4:10:23( Edit History Discussion )

Jeff Sessions: however, was u.s. vs. claybon cruise in which judge lynch attempted to get around the jury process and the sentencing process because he believed a mandatory minimum sentence required by congress of ten years for a conviction of receiving and distributing child pornography was unduly harsh.

4:10:24 to 4:10:44( Edit History Discussion )

Jeff Sessions: in its order prohibiting judge lynch, he announced that he would tell the jury about the penalties in the case, which is not appropriate. in its order prohibiting judge lynch from about what the punishment would be in the case, the second

4:10:45 to 4:11:06( Edit History Discussion )

Jeff Sessions: circuit -- on which he now seeks to sit -- expressly state that had judge lynch's -quote -- "proposed jury instruction regarding the penalties a defendant faces if convicted is a clear abuse of discretion in light of binding authority." close quote.

4:11:07 to 4:11:29( Edit History Discussion )

Jeff Sessions: judge lynch disagreed with the second cirit's decision, calling it a mistaken conclusion. judge lynch that the -- he had the right to ignore precedent and establish law and inform the jury about the penalties that were

4:11:30 to 4:11:51( Edit History Discussion )

Jeff Sessions: applicable upon their verdict of guilty. so that the jurors in effect would have an opportunity to ignore the law and choose not to apply it, because he didn't think the penalty was fair apparently. so i'm disappointed by the fact that judge lynch would appear to

4:11:52 to 4:12:12( Edit History Discussion )

Jeff Sessions: believe that this sentence was inappropriate, number one. but more importantly, that he should have been allowed to invite jury nullification, which is in effect to say to a jury, well, you just don't find the defendant guilty if you think the punishment is d it invites an argument over that issue.

4:12:13 to 4:12:34( Edit History Discussion )

Jeff Sessions: so in answer to one of my written questions, judge lynch said while he accepts the ruling of the second circuit, he continues to believe that his instincts were correct. he stated -- quote -- "the rationale for this decision of the second circuit, which reversed him, he goes on to say -- quote -- "which i fully accept in light of the ruling of

4:12:35 to 4:12:58( Edit History Discussion )

Jeff Sessions: th was that, unlike most cases in which the jury fully understands the seriousness of the crime, in that case the jury may have misperceived the relative seriousness of the two overlapping charges in the case." close quote.

4:12:59 to 4:13:19( Edit History Discussion )

Jeff Sessions: case are especially disconcerting when considered in light of his written remarks criticizing the texturallist ap interpretation. in a 2001 speech on the supreme court's decision in aprende vs. new jersey, he stated -- quote

4:13:20 to 4:13:42( Edit History Discussion )

Jeff Sessions: -- "i would like to welcome" -- talking here about justice scalia and justice thomas -- flexible, in the end more honest way of protecting the constitutional values they share." close quote. judge lynch, in effect, endorsed this flexible judicial

4:13:43 to 4:14:05( Edit History Discussion )

Jeff Sessions: philosophy and advocated it previously. in concern over his statements in previous years contributed to my vote against his nomination to the united states district court on that in 1997, in a law review article

4:14:09 to 4:14:29( Edit History Discussion )

Jeff Sessions: entitled "in me mom yam moriam, judge will jam j. brennan," judge lynch admonished the successors of judge brennan that they must engage in constitutional interpretation -- wisdom and experience and in light of the conditions of the

4:14:30 to 4:14:51( Edit History Discussion )

Jeff Sessions: american society today." close quote. in that same article, judge lynch stated that he believ it was a necessity that the constitution -- quote -- "be given meaning for the present." skwrufrpblg lynch's -- judge

4:14:52 to 4:15:15( Edit History Discussion )

Jeff Sessions: lynch's quote included the opinion that justice brennan's -- quote -- "long and untiring labor in the principles of the constitution in the way that he believed made most sense today seems far more honest and honorable than the pretense that can be found in 18th or 19th

4:15:16 to 4:15:36( Edit History Discussion )

Jeff Sessions: century dictionaries." i had a problem with that speech in 1997 when he came up. such strong statement of adherence to the doctrine that justice brennan was theoremost advocate

4:15:37 to 4:15:58( Edit History Discussion )

Jeff Sessions: constitution that words don't have fixed meanings, that you can them to say to affect the result you think is appropriate today. but the constitution is a contract with the american people, and we have every right to amend it throu

4:15:59 to 4:16:21( Edit History Discussion )

Jeff Sessions: torry process -- amendatory process. judges don't have amend it because they received that makes them think they have a better idea of what the constitution ought to mean and how it's been interpreted for 200 years? this is a serious matter, because judges are unelected.

4:16:22 to 4:16:43( Edit History Discussion )

Jeff Sessions: they have a lifetime appointment appointment. and we give them that because we want unbiased, objective analysis, but it doesn't mean they're empowered to update the constitution to make it say what they'd like it to say today. they'reot empowered to do that. and, in fact, it erodes democracy when they do that, because the elected branches,

4:16:44 to 4:17:04( Edit History Discussion )

Jeff Sessions: those of us in this senate, are accountable. judge aren't accountable another of judge lynch's cases that bears mention is united states v. reyes. in that case, a police officer asked the defendant drug dealer who had not yet been read his

4:17:05 to 4:17:25( Edit History Discussion )

Jeff Sessions: miranda rights whether he had anything on him that could hurt the officer or his field team, even though the defendant had not been frisked. judge lynch concluded that the defendant was custodial interrogation under miranda and that before the police officer could ask whether or not he had anything to

4:17:26 to 4:17:46( Edit History Discussion )

Jeff Sessions: endanger the officers, he had to warn him of his miranda rights. as a result, excluded from the record statements that the defendant made at that time implicated him in the crime. the second circuit, the circuit which he'll now serve on, judg

4:17:47 to 4:18:08( Edit History Discussion )

Jeff Sessions: judge -- reversed judge lynch's holding that the public safety exception was, in fact, applicable and that the cases judge lynch had relied upon in his ruling were distinguishable. the court noted that drug dealers often have hy determine i can needles or razorblades on their person that could pose a danger to the officer, reaching their hands in

4:18:09 to 4:18:29( Edit History Discussion )

Jeff Sessions: their pocket or feeling in their pockets. additionally, the defendant was not handcuff aed at the time of the arrest and could have reached for a concealed weapon. the second circuit also noted that the questions asked by the officer were -- quote -- "sufficiently limited in and were not posed to elicit incriminating evidence." and the plits -- quote --

4:18:30 to 4:18:51( Edit History Discussion )

Jeff Sessions: "cannot be faulted for the unforeseeable results of their words or actions." judge lynch has also advocated that miranda warnings be administered for searches, which has never been the case. in a symposium commentary, judge lynch proposed a miranda-type

4:18:52 to 4:19:12( Edit History Discussion )

Jeff Sessions: rule for searches tt would invalidate consents to search unless the party whose consent is sought is first advised that he or she has a constitutional right to refuse such consent. well, miranda was never required by the it was a prophylactic,

4:19:13 to 4:19:35( Edit History Discussion )

Jeff Sessions: protective rule that the court conjured up and somehow the system has survived it. but it has done some damage in terms of not getting the kind of admissions and confessions you might otherwise get. that's just a fact. but at any rate, to expand that now to searches, which has never

4:19:36 to 4:19:57( Edit History Discussion )

Jeff Sessions: been done, i think is an unhealthy approach. you might say, well, theoretically if goi if you're going to do these miranda on interviews, you could do it on searches, but i would just note tha miranda itself is a protective rule, not a mandated constitutional rule. i mention those foregoing issues

4:19:58 to 4:20:19( Edit History Discussion )

Jeff Sessions: because they're of great concern to me. it appears, notwithstanding, that in the vast majority of his cases,udge lynch has been a very careful judge who's followed the law. he stated that he understood that circuit judges are -- quote -- "bound by supreme court and prior circuit court

4:20:20 to 4:20:40( Edit History Discussion )

Jeff Sessions: precedent and their job is to apply fairly and accurately the holdings and reasoning of such precedent. given his commitment to i will vote for him, and i hope that he will continue his excellent service on the bench, that he w as written and will refrain from imposing personal views in his

4:20:41 to 4:21:04( Edit History Discussion )

Jeff Sessions: decisions.

4:21:05 to 4:21:27( Edit History Discussion )

Jeff Sessions: now, it's unfortunate that mr. sessions: i am concerned also that the president in his nominations are -- are moving a number of people for the feder bench that are clearly activists

4:21:28 to 4:21:48( Edit History Discussion )

Jeff Sessions: in tone. many of them don't have the length of time on the bench that judge lynch did or his skills as a judge, frankly. and it's causing us some concern, and we'll have some real debate about it. the nomination of judge david hamilton for the circuit --

4:21:49 to 4:22:09( Edit History Discussion )

Jeff Sessions: first circuit court of afeels raises that issue -- of appeals and raises that issue with me. the white house said it intended to send a message with his appointment and i'd say it did. judge hamilton's appointment is a significant one. instead of embracing the

4:22:10 to 4:22:31( Edit History Discussion )

Jeff Sessions: constitutional standard of jurisprudence, judge hamilton's has embraced president obama's empathy standard. indeed, he said as much in his answer to questions for the record following his confirmation hearing in the judiciary committee, on which i sit. he rejects the idea that the role of a judge is akin to that

4:22:32 to 4:22:56( Edit History Discussion )

Jeff Sessions: of a -- of an umpire who calls balls and strikes in a neutral manner. rather, he believes that a judge will -- quote -- " different decisions time taking into account what has happened and its effect on both parties and what are the

4:22:57 to 4:23:17( Edit History Discussion )

Jeff Sessions: practical consequences." judge hamilton also appears to have embraced the idea of a living constitution. and the last time i was at the archives building, i saw a parchment from 1789 that was not breathing. that's a document, it's a contract, guarantees certain

4:23:18 to 4:23:39( Edit History Discussion )

Jeff Sessions: rights to every arican, and judges around empowered to rewrite it to make it say what they think it ought to say today. in a speech in 2003, he indicated -- this is judge hamilton -- that a judge's role included writing footnotes to

4:23:40 to 4:24:00( Edit History Discussion )

Jeff Sessions: the constitution. when senator hatch questioned him about these comments in a follow-up question, he retreated somewhat but then gave a disturbing answer in the next question about judges amending the constitution or creating new rights through case law and court decisions. this judicial philosophy has clearly impacted judge hamilton's ruling during his

4:24:01 to 4:24:24( Edit History Discussion )

Jeff Sessions: time as a district judge. he has issued a number of controversial rulings and has been reversed in cases. for example, he ruled against allowing a public sectarian prayer in the indiana state legislature and was reversed by

4:24:25 to 4:24:46( Edit History Discussion )

Jeff Sessions: the supreme court -- the seventh circuit. he circuit. he ruled against allowing religious disnays are subbuildings and -- displays in government buildings and was reversed by the panel. he blocked the reasonable informed consent law in dealing

4:24:47 to 4:25:07( Edit History Discussion )

Jeff Sessions: with years. he continued to block the enforcement of that law and was eventually firmly and forcefully overruled by the seventh circuit for being in violation of the law. and states and other peoples have spent all kind of money and the attorney generals of the

4:25:08 to 4:25:29( Edit History Discussion )

Jeff Sessions: states have spent effort and time -- as our president used to be attorney general -- as he knows, you spend a lot of money to litigate these matters and finally win it, but, in effect, the people of the state for seven years were unable to enforce a constitutional statute their duly elected representatives had passed.

4:25:30 to 4:25:50( Edit History Discussion )

Jeff Sessions: and that's the power of an unelected federal judge sometimes, ande need to be sure that judges who go on the bench understand they are allowed to do that. that they're supposed to be a neutral umpire, and the case law and the constitution says this is a good statute, you need to affirm it whether you like it or not, whether you would have voted differently or want.

4:25:51 to 4:26:11( Edit History Discussion )

Jeff Sessions: if he wants to be in the legislature and vote on the statute, let him seek that office. now, a federal judge must be able to dispense rulings in a neutral fashion so that the elm tbleam hangs over the -- the emblem that hangs over the supreme court which has been embraced by the american people "equal justice under law" can be carried out in every aspect of a

4:26:12 to 4:26:32( Edit History Discussion )

Jeff Sessions: legal proceeding. a judge must put aside political views which may be appropriate as a advocate and interpret the law as it' written. he must keep his oath to uphold the constitution first and foremost. as i've said before, the constitution is a contract

4:26:33 to 4:26:53( Edit History Discussion )

Jeff Sessions: between the american people and a -- and a -- especially in a government of limited powers that's established by the people. it is a judge's duty abide by the constitution and protect it and defend it. and all the laws duly passed by congress that are consistent

4:26:54 to 4:27:15( Edit History Discussion )

Jeff Sessions: with that constitution. we have preserved our nation well by insisting that o judiciary remain faithful to the plain and simple words of the constitution and the statutes involved. so, mr. president, i am really impressed with the legal ability of judge lynch. he's before us today.

4:27:16 to 4:27:37( Edit History Discussion )

Jeff Sessions: i don't see -- i've reviewed his record carefully. i've i've seen some of his speeches and they cause me trouble i and a few cases tt cause me t but i think giving deference, an appropriate deference, to the president's nomination, that he should be confirmed. i'll ask my colleagues to

4:27:38 to 4:27:59( Edit History Discussion )

Jeff Sessions: support the confirmation. but i want to say that all of us in this body as well as judges have a duty to preserve and defend our now, you canny lead to constitution in a number of ways

4:28:00 to 4:28:21( Edit History Discussion )

Jeff Sessions: ways, and one way it can be changed and altered impermissibly is when judges redefine the meaning of words. and so when a judge says we shouldn't resort to century dictionaries, that makes me nervous. what does that mean? you just give it a new definition, the word?

4:28:22 to 4:28:44( Edit History Discussion )

Jeff Sessions: the one the people ratified, the amendment they passed and ras tied and they had a -- rified, and it had a certain they understood it to have that meaning, and now you're on the bench and you think it shouldn't be enforced that way. you'd like to see a different result. well, you just sort of amend it or write a footnote to it? i don't think that's good

4:28:45 to 4:29:08( Edit History Discussion )

Jeff Sessions: judicial policy, and i feel an obligation. i think a number of us in this senate do, to affirm goo judges, men and women of character and ability and faithfulness to our law and constitution, concerns that we have and to use every bit of our ability and strength to oppose nominees who won't be faithful to those high

4:29:09 to 4:29:21( Edit History Discussion )

Jeff Sessions: ideals that ar have made us a nation of laws and made us prosperous and free. i thank the chair yield the f note the absence of a quorum.