Legal Pad wasn’t too surprised that the ranking Republican went after Edward Chen at his confirmation hearing before the U.S. Senate Judiciary Committee. After all, Chen — a Northern District magistrate whom President Obama nominated for a district court slot here — worked for (cue Darth Vader music now) the ACLU for 16 years. In the eyes of the Republican National Committee, liberal/socialist/Trotskyite judges make for some of the best fundraising appeals.
But it was California Democrat Dianne Feinstein’s defense of her home state nominee that was more curious.
Chen, who would be the Northern District’s first Asian-American judge, appeared before the committee yesterday alongside fellow magistrate Richard Seeborg and two Asian-American nominees from Los Angeles. After several minutes of pleasantries and softballs from Minnesota Democrat Al Franken, Alabama Republican Jeff Sessions began quoting from an article penned by Chen, in which the nominee extolled the virtues of a diverse bench. Sessions queried Chen about whether he would be able to follow the law and not his heart. Chen handled this jab smoothly.
Then Sessions brought up the dreaded ACLU, and whether Chen could be an impartial judge having once worked for them.
“I think I know where Senator Sessions is going,” Feinstein offered. “Judge Chen has been a very fair magistrate judge for 8 years. I’ve tested this. Because I also am aware he was a fierce advocate prior to that time. I might have some differences of opinion with some things.”
The “I tested this” line caught our attention: we remember that before Feinstein officially recommended Chen, there had been a delay in her submitting names to Obama. Rumors swirled that the senator was concerned about Chen’s ACLU background, and that some law enforcement types had to vouch for Chen’s evenhandedness.
At the hearing, Feinstein cited a specific instance that had “concerned” her: a brief Chen wrote in 1988 opposing randomized drug tests for some federal railroad employees. The U.S. Supreme Court upheld those kinds of tests over the years, and Chen said he had no problem as a magistrate ordering pretrial defendants to undergo them.
“The Supreme Court is my command,” Chen said.
Then it was time for some death penalty theater. Sessions quoted the ACLU’s website saying the death penalty violated the Eighth Amendment, and asked Chen whether he agreed. “Those views are not the views of the Supreme Court,” he said, adding that the sole death penalty case he handled revolved around narrow prosecutorial misconduct claims, and not broad constitutional challenges.
Sessions pressed on, asking again whether Chen agreed with his employer of 16 years. Chen replied that he had never been involved in death penalty “policy” at the ACLU, and as a judge “would follow precedent.”
— Dan Levine