Prepared Statement of Ranking Member Chuck Grassley
Senate Committee on the Judiciary Executive Business Meeting
Thursday, November 3, 2011
Mr. Chairman:
I want to take a moment to express frustration with a policy decision by the Department of Homeland Security that came to light this week.
The department apparently directed border agents to cease its practice of routinely searching buses, trains and airports for illegal immigrants. This practice has been a deterrent against illegal immigration, drug smuggling and human trafficking.
This administration appears to be absolutely intent on turning a blind eye to illegal immigration. They’re playing with the safety of the public.
It’s unfortunate that we learned about this policy from the media, especially since we had an oversight hearing last week with Secretary Napolitano. This committee deserves answers.
Also, during last week’s oversight hearing, I asked the Secretary about local governments who have sanctuary policies – namely, Cook County, Ill. I was given very little assurance that such matters were being addressed.
Cook County passed an ordinance that requires law enforcement to ignore immigration detainers requested by Immigrations and Customs Enforcement. We have a situation where dangerous criminals are potentially being released even after immigration authorities have identified them.
An untold number of immigrants charged or convicted of felonies have been released from Cook County jail since the ordinance passed. One undocumented immigrant who blew through a red light and then punched a police officer was allowed free despite the request by Immigration and Customs Enforcement to hold him.
This is a serious situation and that has been ignored by the Secretary. Meanwhile, this administration will sue states that attempt to enforce the immigration law. In fact, just this week, the Justice Department filed suit against the state of South Carolina, seeking an injunction against their immigration law.
It’s well past time that this administration come to its senses and realize that their policies are at odds with the rule of law that our country was founded.
They must wake up and change their ways before it’s too late.
With regard to the judicial nominations, we are prepared to vote on the following nominations today: Thacker, Fourth Circuit, Abrams, Southern District of New York, Contreras, District of Columbia, Du, District of Nevada, Fitzgerald, Central District of California.
I will request a roll-call vote for the Du nomination.
We have a request that the following nominees, which are on the agenda for the first time, be held over: Morgan, District Judge for Eastern Louisiana, Horowitz, Justice Department Inspector General. Next, on the legislation, we request that S. 598, the Respect for Marriage Act, which is on the agenda for the first time, be held over.
The standard practice for all bills and nominees is that they are held over the first time that they appear on the committee’s agenda.
In the past, I’ve held over even my own bills. I’ve circulated amendments to this bill, and am working on more, so members should be prepared to consider amendments to the bill at the committee’s next executive business meeting.
As for S. 75, the Discount Pricing Consumer Protection Act, I believe some members on our side have some legitimate concerns with this bill and may want to speak on it when we move to its consideration.
It’s my understanding, though, that our side is fine with a voice vote.
Ms. Miranda Du
My colleagues have heard me speak on numerous occasions the seriousness with which I undertake the advice and consent function of the Senate, as I know we all do.
Our inquiry of the qualifications of nominees must be more than intelligence, a pleasant personality, or a prestigious clerkship. At the beginning of this Congress, I articulated my standards for judicial nominees. I want to ensure that the men and women who are appointed to a lifetime position in the federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence.
In applying these standards, I have demonstrated good faith in ensuring fair consideration of judicial nominees. I have worked with the majority to confirm consensus nominees.
However, today on the agenda is a nominee that in my judgment does not measure up to the criteria I have outlined. Ms. Miranda Du was nominated to be United States District Judge for the District of Nevada on August 2, 2011. Sixteen legislative days later she appeared at her nominations hearing. At that hearing she was asked about a case in which she was lead counsel. Ms. Du was the partner in charge of handling the case of Woods v. Truckee Meadows Water Authority.
Ms. Du, representing Truckee Meadows Water Authority (TMWA), filed a motion to dismiss the original complaint. But, she failed to raise the lack of subject matter jurisdiction as a reason to dismiss the case. The court, therefore, denied her motion. Ms. Du then filed a third-party complaint against the local union. But, the union’s counsel recognized that there was no subject matter jurisdiction. Therefore, they advised Ms. Du, in a six-page letter that the court lacked subject matter jurisdiction. The union, therefore, warned Ms. Du that they would seek sanctions if Ms. Du did not withdraw her complaint.
Rather than recognizing her mistake and filing a second motion to dismiss, Ms. Du went forward with the third-party complaint. In response, the union proceeded exactly as they said they would: they filed a motion to dismiss and filed for sanctions.
The district court agreed there was no subject matter jurisdiction and dismissed the action.
In addressing the sanctions issue, the court stated “Having reviewed the record and considered arguments of counsel at the hearing on this motion, the court finds that … TMWA’s counsel acted recklessly … .” Let me remind you, TMWA’s counsel was the nominee, Ms. Du – the court said she acted recklessly. The court went on to state that TMWA (referring to Ms. Du’s client) “has not advanced a legitimate, good faith reason for bringing the Union into this litigation.” Accordingly, the court concluded sanctions were warranted.
At her hearing, Senator Lee asked her if she agreed with the court’s assessment that her conduct was reckless. She stated that she did not believe that she was reckless in that case, although she stated “We certainly made a mistake and did not pick the best course of action.” In written follow-up questions I asked her again about the court finding her reckless and she responded that she disagreed with the Magistrate Judge’s finding. Let me be clear – the finding of reckless action on her part was not a mere observation of the court, but a legal finding. That finding allowed the court to award sanctions pursuant to 28 U.S.C. 1927.
I am troubled that she would fail to acknowledge the finding of the court. I think this demonstrates a lack of humility, which is an essential element of being a federal judge. I understand attorneys may make mistakes or have differing views on litigation strategy. However, this is not the case in this situation. Ms. Du was put on notice of her flawed motion, was warned of the consequences of proceeding, but went forward anyway. That is why the court found her to be “reckless.” Her subsequent attempt to downplay this serious matter goes against the standards for judicial nominees which I previously discussed.
There is another substantive legal element that concerns me as well. That is her apparent lack of knowledge or disregard for the law regarding subject matter jurisdiction. Senator Lee’s questions at the hearing on this issue I think demonstrate a lack of ability or professional competence.
I would note that the ABA has rated Ms. Du with a partial “Not Qualified rating.” She states she was “involved in” four jury trials and has limited criminal law experience. As I have stated before, this is no place for on-the-job training.
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