Madam President, similar to my colleague from Maryland, I come to the floor to discuss the nomination of Professor Pamela Harris to the Fourth Circuit. I come for another reason, to give my reasons…
Madam President, similar to my colleague from Maryland, I come to the floor to discuss the nomination of Professor Pamela Harris to the Fourth Circuit. I come for another reason, to give my reasons for opposition.
Contemplating my vote on this nominee has been a particularly memorable process. That is because as I reviewed the professor's writings, statements, and legal briefs, it seemed as though I was reviewing the record of not one but two nominees. The size of those two nominees' records was rather unequal. On the one hand, there is the record of the pre-nomination Professor Harris. That is the record reaching all the way back to her graduation from law school in 1990, a record rich in public statements and writings. It is a record long enough to develop a distinct and stridently left-wing philosophy. That is one record.
Then, on the other hand, there is the record of the post-nomination Professor Harris. It is a dramatically shorter record. That record only began a few weeks ago at the professor's confirmation hearing on June 24. It is a record that consists of the professor's testimony before the Judiciary Committee and of course her responses to questions for the record from my colleagues and from this Senator. It is a record of a jurist who will be faithful to the statutory text and constitutional precedents, a record with comments that could be mistaken for those of Justice Scalia or Justice Thomas.
But what is so unbelievable to me is how totally at odds the record of the pre-nomination professor is with the record of the post- nomination professor. As I said before, it is as if there were two entirely distinct nominees vying for this single seat on the Fourth Circuit.
So for the next few minutes I would like to share with my colleagues some excerpts from the record of the pre-nomination Professor Harris and some excerpts from the post-nomination professor. There is no question that the professor spent her entire legal career, before nomination to the Federal bench, that is, consistently and aggressively advocating for a liberal interpretation of the Constitution that is well outside the mainstream of constitutional jurisprudence. That is the pre-nomination record. But as I said, that all changed when she testified before the committee.
I would start with the professor's pre-nomination views on constitutional interpretation. She has spoken with unusual clarity and forthrightness on the topic. That is in part because she served for many years on the board of the left-wing American Constitution Society. That ironically named group spends a lot of time developing theories of interpretation that are designed to attack and redefine key constitutional principles. The professor was at the forefront of those discussions in many years. So how exactly did the pre-nomination Professor Harris view the sources of constitutional meaning?
Here is a statement she made before the American Constitution Society in 2008:
I just don't think that any account of the Constitution
that even seems to privilege the Constitution as it was
originally ratified is consistent with the way we should
think about the Constitution. Yes, the values, the
principles, on some level of generality, are there at the
beginning, but they take their meaning--and they should take
their meaning--from what comes after.
We should pause for a moment because she said a lot in that quote. First, we hear how the professor rejects out of hand the idea that the Constitution as originally ratified should guide its interpretation. Instead she sees only ambiguous principles. Those principles, according to the professor, are more or less empty and meaningless by themselves. That is because those principles, as she formulates them, take their meaning primarily from subsequent developments. Then the professor goes on to specify exactly what subsequent developments she is talking about.
She explains that her interpretive ``source of legitimacy most particularly,'' is ``what the People do'' at what she calls ``critical junctures,'' including ``the civil rights movement, the women's movement, the gay rights movement.'' According to the professor, these movements ``reconstitute what it is we're talking about when we talk about American constitutional tradition, when we say words like equality and liberty, when we change what they mean.''
We need to pause and unpack that statement. First, the professor explicitly identifies for herself ``a source of legitimacy'' to be used in constitutional interpretation. That source of legitimacy is not the Constitution's text, nor its structure, nor its history, nor its original intent, nor any other established interpretive method. It is something outside the law altogether, and that happens to be social and political movements.
I will put it this way: They are the social and political movements that Professor Harris chooses for inspiration. They are the social and political movements Professor Harris has decided to raise all the way to constitutional status. It is these extralegal sources that she says change the scope of the Constitution's guarantees of equality and liberty.
I am sure you are going to say this sounds as though I am making it up, but I am not. The professor literally said, ``We change what they mean.'' Who is the ``we'' the professor is talking about? I suspect it is the people in social movements that Professor Harris finds particularly inspirational. I suspect it is also the people who share her view that the Constitution's original guarantees are merely empty vessels which can be filled with whatever political or social ideas a judge might ``privilege,'' as the professor puts it.
In other contexts, Professor Harris said the meaning of the Constitution changes based on things such as ``an evolving and changing public understanding,'' ``the consequences of constitutional rulings,'' and ``the circumstances on the ground.'' Note the absence of any legal standard on that list which seems to be the basis of the rule of law or the basis of stare decisis.
I will finish up with the professor's quote.
I think that constitutional legitimacy comes, even in part,
from the fact that it does reflect these social movements and
what happens at these particular moments when the people come
together and force this kind of change in the way we think
about ourselves and what it means to be American. And I think
there's something about originalism at least as it's commonly
understood that's inconsistent with that. And that's why I'm
not an originalist, even now.
Let's recap. The Constitution derives some of its legitimacy, as the professor put it, from social movements at particular moments. Again, how are we to know which particular moments rise to the level of constitutional significance? We will have to ask Professor Harris because there is absolutely no principled or objective way of making that kind of a decision. It is certainly not a legal decision. It happens to be a matter of personal preference.
What else can we take away from that quote? Well, we also learned the professor is definitely not an originalist. She literally says: ``I'm not an originalist.'' I want you to keep that in mind because what I have to say shows how quickly she can change her views.
Let's turn now to what the post-nomination professor thinks about constitutional interpretation. As I said before, the contrast is so striking that it is almost as if we are dealing with two different nominees for the single seat on the Fourth Circuit. Does the post- nomination professor still think constitutional principles change with the times?
In a response to my question for the record, Professor Harris wrote:
I do not believe that the Constitution's provisions and
principles change or evolve, other than by the amendment
process in Article V. They are fixed and enduring and judges
are not free to change them whether by incorporating public
preferences or their own policy views.
That is astounding. It is like a night-and-day difference with the judicial philosophy I have previously quoted from the pre-nomination Professor Harris, and it is totally incompatible with the philosophy which Professor Harris has developed over the decades. Now we suddenly hear that the professor believes in unchanging and in fixed--dare I say eternal--principles that cannot be changed except by an Article V amendment.
All of a sudden there are no more social movements. All of a sudden there are no more ``critical junctures.'' All of a sudden there is no more ``what the people do.'' All of a sudden there is no more ``privileging'' or ``reconstituting''--those are her words. So no more ``privileging'' or ``reconstituting'' constitutional meaning. All of a sudden the meanings are now fixed in our Constitution. All that other stuff she previously said happens to be in the rearview mirror.
Now judges are forbidden from incorporating public preferences to change constitutional principles. Public preferences as interpreted by the judge, of course. But just a few years ago that was at the very core of her interpretative philosophy.
I have another post-nomination quote.
I would never suggest that a justice of the Supreme Court,
or any judge, should change his or her opinions based on
public opinion. That is not the way I view the role of a
judge.
That happens to be the way I view the role of a judge, and now she says that is the way she sees the role of a judge, but it is completely contrary to what she had thought for decades before this nomination.
The post-nomination Professor Harris added that courts should be ``especially cautious on social issues when the political branches and political institutions are deeply and rapidly engaged in those issues'' and ``leave as much to the democratic process.'' That statement is also a massive sea-change.
For the pre-nomination professor, the democratic process went hand- in-glove with the judicial process. Now, however, with her confirmation on the line, the post-nomination professor sees a wall between politics and the courts.
Let's return to the pre-nomination professor for another quote on judicial decisionmaking. Here is what she candidly told a gathering of the American Constitution Society about that issue in 2009:
I always feel unapologetically, you know, left to my own
devices, my own best reading of the Constitution. It's pretty
close to where I am.
Where exactly is the Constitution, in her view? She tells us flatly: ``I think the Constitution is a profoundly progressive document. I think it's born of a progressive impulse.'' Well, if that is where the Constitution is, where then is the professor? Again, there is no mystery here because she is very upfront with that answer: ``I'm a profoundly liberal person so we''--she is talking about herself and the Constitution as one--``we match up pretty well. I make no apologies for that.''
Think for a moment about what the professor is saying. I frankly cannot recall a judicial nominee who has actually expressed her belief that the Constitution embodies the nominee's personal political philosophy, but that is exactly what Professor Harris does in that statement.
Think about how she put it: The Constitution is pretty much where she is as a liberal. It is almost in sync with her views. That was a crystal-clear explanation of how the pre-nomination Professor Harris viewed her beliefs and the Constitution.
But what does the post-nomination Professor Harris have to say? At her hearing, she told our Judiciary Committee:
I do not believe that it is the view of a judge ever to
import his or her personal values into judicial
decisionmaking.
Again, the post-nomination statement is strikingly at odds with the pre-nomination views. Or, perhaps we should actually take the post- nomination statement at face value. After all, Professor Harris doesn't need to import her own views when interpreting the Constitution. As she explained, it just happens to be almost as liberal as she is. So that is a fortunate coincidence, I suppose.
What about the professor's views on a particular judicial philosophy? Remember earlier her pre-nomination criticism of originalism and her assertion that she is definitely not an originalist.
That happens to be out the window as well.
Here is her post-nomination testimony: ``I do not reject originalism as an interpretive method.''
Those are just a few of the contradictory quotes from the pre- and post-nomination Professor Harris which strikingly illustrate almost unbelievable inconsistencies in her judicial philosophy and understanding of constitutional interpretation.
The quotations also point to issues that are deeply troubling about this nominee, and I'll discuss a few of them. First, this nominee has made many statements suggesting that if confirmed, she would pursue a results-oriented, whatever-it-takes approach to deciding cases. From this nominee's past commentary, we know that she is not only a devoted liberal, but she would also strive to move the courts leftward to suit her ideological preferences.
For example, in discussing the Warren Court, the professor said she wondered ``whether we almost have, by now, a stunted sense of what the legal choices really are, what really is a liberal legal outcome.''
Just listen to that phrasing again: ``liberal legal outcome.'' Is there any doubt this nominee views the courts as simply a third political branch?
I will quote again:
If Chief Justice Warren came out a certain way, that must
be as liberal as it gets. That's not right! I think that
we've stunted the spectrum of legal thought in a way that
removes the possibility that there could have been more
progressive readings of the Fourth Amendment and the Fifth
Amendment.
It seems Professor Harris doesn't think the Warren court was nearly liberal enough. That is a fairly astonishing view in itself.
I often hear liberals and some of our nominees talk about the so- called living Constitution. Well, it is clear to me this nominee sees not a living Constitution but a profoundly political Constitution. She said so herself. She sees judges as proxies engaged in a tug-of-war who use judicial power as an instrument of political control. Her statements, as I explained a few minutes ago, also are a clear indication of her belief that the role of a judge is to reflect those political and social forces.
For example, speaking about Justice Kennedy's stance on gay marriage, the professor said that the Justice ``should be changing the same way the whole country is changing.''
That is the language of politics, not the language of law.
She has said so many things to this effect that I find myself asking this question: Will this nominee even consider the law when deciding a case or is it all progressive outcomes, social movements, and critical junctures?
So it is clear there are two Professor Harrises: the pre-nomination professor and the post-nomination professor.
Let's not be naive about which Professor Harris will sit on the Federal bench--for life--if confirmed, because no one else is being naive about that question.
Take, for example, an article published last May in New Republic gushing that the professor is a ``champion of liberal jurisprudence'' and will be a ``sympathetic vote for liberal causes.'' We know that will be the case from the pre-nomination professor's long record of impassioned liberal advocacy.
The article also observes--accurately, in my view--that Professor Harris ``clearly has an interest in using her voice to project a liberal jurisprudence perspective.'' That quotation pretty much sums it up. All anyone needs to do to confirm that claim is to read the pre- nomination professor's public statements, because they are all out there. It is not a secret what this nominee thinks about the law and what she thinks about the courts. And it is no secret what kind of a judge this nominee will be if she takes the bench.
So it seems pretty clear to me that the timing of the vote on this nominee is not purely coincidental. We know this because of this week's ObamaCare decisions handed down by the DC Circuit and the Fourth Circuit.
Last November, when the majority changed the cloture rule on judicial nominees, I told my colleagues the decision was a blatant attempt to stack the DC circuit with judges who would view sympathetically the administration's arguments in upcoming ObamaCare lawsuits.
The other side dismissed the notion that the rules change was designed to tilt the court in the President's direction and to salvage ObamaCare. Well, as we all know, a three-judge panel of the DC Circuit decided the Halbig case this week against the administration, and it only took the administration about an hour to announce that it would seek a rehearing by the en banc DC Circuit, which now includes four of the President's nominees.
As we all know, our distinguished majority leader rushed through three of those four nominees immediately after the rules change. And yesterday the distinguished majority leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear. He said: ``I think if you look at simple math, it does.''
So the distinguished majority leader isn't even trying to disguise his intent, and that is exactly what happened with this nominee on her way to the Fourth Circuit.
This nomination is being considered ahead of other circuit nominees on the executive calendar. Why is this Fourth Circuit nomination being fast-tracked? Why fast-track one of the most liberal nominees we have considered to date? If history is any guide, the answer is simple. It is all about saving ObamaCare. The other side wants to stack the Fourth Circuit just like the DC Circuit, because the Fourth Circuit hears a disproportionate number of significant cases involving Federal law and regulations, as does the DC Circuit.
So my colleagues should understand a vote for this nominee is also a solid vote for the Affordable Care Act as the cases make their way through the court.
I am voting ``no'' on this nominee and I urge my colleagues to do the same. I yield the floor.
Unanimous Consent Agreement--Executive Calendar