Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee,
On The Nomination Of Jerome A. Holmes
To The Court Of Appeals For The Tenth Circuit
July 25, 2006

Today, the Senate considers the nomination of Jerome A. Holmes for a lifetime appointment to the Court of Appeals for the Tenth Circuit.  Just last week we confirmed another nominee to the Tenth Circuit, the fifth to be appointed by this President.  This progress comes in stark contrast to the seven years in which a Republican-led Senate failed to confirm a single new judge for that court.  Indeed, when I moved forward with the nominations of Harris Hartz of New Mexico, Terrence O=Brien of Wyoming and Michael McConnell of Utah, it broke a longstanding partisan barricade that had been maintained by Republicans.  Among the victims of the Republican obstruction were outstanding lawyers President Clinton nominated such as James Lyons and Christine Arguello, who were never even granted hearings by the Republican majority.  Judge Lyons was among the many Clinton nominees voted unanimously "Well Qualified" by the American Bar Association who were never granted hearings, and Ms. Arguello is a talented Hispanic attorney whose nomination had significant, widespread and bipartisan support from her community and state.  They were among the more than 60 qualified, moderate judicial nominees of President Clinton that Republicans “pocket filibustered” and defeated without hearings or votes of any kind. 

Just last Thursday, Democratic Senators joined in the confirmation of Judge Gorsuch, an extremely conservative nominee, and three others.  Working together we confirmed two Circuit Court nominees and two federal trial court nominees in a matter of minutes.  We brought the total number of judicial nominees confirmed during this President’s term to 255, which exceeds the total for the last five and one-half years of the Clinton Administration.  It brought the total number of judges confirmed over the last 18 months to 50.  Of course, during the 17 months I chaired the Judiciary Committee the Senate confirmed 100 lifetime judges, twice as many in less time.  Last week’s success demonstrates again how we can make progress in filling vacancies by working together.  Senator Salazar’s support for Judge Gorsuch was a critical factor in our ability to act swiftly.  Senator Lincoln’s and Senator Pryor’s support for confirming Judge Shepherd to the Eighth Circuit likewise made a real difference.

Regrettably, this nomination we consider today is not without controversy and concern.  Mr. Holmes initially was nominated to fill a district court seat in Oklahoma.  The White House withdrew that nomination and renominated him to the Circuit Court after Judge James H. Payne asked the President to withdraw his nomination.  That withdrawal came after public reports that Judge Payne had ruled on a number of cases in which he had a conflict of interest.  While the Committee never had a chance to hear directly from Judge Payne about the reported conflicts, these types of conflicts are a violation of federal law as well as canons of judicial ethics and have no place on the federal bench.  Certainly, they should not be rewarded with a promotion 

Before Mr. Holmes’ hearing, I raised concerns about the many controversial letters and columns he has written on such topics as juror racial bias, affirmative action, discrimination, and school vouchers.  In these writings, Mr. Holmes derided opposing points of view and those who held them.  I asked Mr. Holmes to address my concerns about how he might rule on civil rights issues and how he would treat litigants as a judge.  Regrettably, Mr. Holmes’ stock answers to my questions that he would follow Supreme Court precedent have not reassured me that he would be the kind of judge who understands the critical role of the courts as a protection of individual rights and civil rights. 

In one column, Mr. Holmes described certain allegations of racial prejudice at criminal trials as “harmful” because it “bolster[s] the cynical view that jurors vote along racial lines,” which “undermines public confidence in the fairness of the criminal justice system.”  In fact, Mr. Holmes suggested that it is the focus on the problem of racial bias in jury selection – as opposed to the racial bias itself – that harms the criminal justice system.  He wrote that focusing on racial bias “may actually give the green light to jurors to exercise arbitrary power in the jury box when their racial number allow it.” 

The Supreme Court has long recognized that racial bias in jury selection undermines constitutional guarantees to a fair trial, establishing in the landmark 1986 decision Batson v. Kentucky that striking jurors on the basis of race is unconstitutional.  In contrast to Mr. Holmes’ statement that accusations of racial bias are merely “cynical,” Batson was based on evidence showing patterns of race discrimination in jury selection.  It has been reaffirmed repeatedly during the last 20 years in sharp contrast to the views of Mr. Holmes.  I gave Mr. Holmes every opportunity to admit error and indicate not only that he had learned of the Supreme Court’s precedent but that he had adopted that view of the law and accepted the prohibitions against racial discrimination as just, but received no such reassurance.  Instead, the nominee begrudgingly acknowledged that he would have to follow Supreme Court precedent when expressly bound by it.  

In another column Mr. Holmes wrote after the Supreme Court’s landmark affirmative action decision, Grutter v. Bollinger, he criticized the High Court for missing an “important opportunity to drive the final nail in the coffin of affirmative action” and said that the “court did not go far enough: Affirmative action is still alive.”  In addition, he described affirmative action scholarship programs as involving classifications that are “constitutionally dubious and morally offensive.”

This was a landmark case and in it Justice Sandra Day O’Connor spoke for the Supreme Court and the Nation.  Justice O’Connor, a conservative appointed by President Reagan, considered the facts and the law carefully.  She took into account the brief from 65 leading U.S. corporations that noted the importance of a diverse workforce and the brief of a highly respected group of former military officers that the military needed a racially diverse and highly qualified corps of officers.  She built upon the Supreme Court’s Bakke decision when she upheld the University of Michigan Law School’s use of race as a factor in law school admissions and affirmed the important interest in diversity.  She proclaimed:  “Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.”  She went on to note that she hoped and expected that consideration of race might no longer be necessary in another 25 years.  Even after the decision, Mr. Holmes chose to criticize Justice O’Connor’s pragmatic, principled and practical resolution of what had become an ideological dispute.  Sadly, Mr. Holmes seems to continue to want to take sides, and in my view, he is on the wrong side.

Just last week, the Senate unanimously extended the expiring provisions of the Voting Rights Act of 1965 for another 25 years.  We all hope that such special provisions will no longer be necessary after another 25 years of growth and progress.  But they are needed now. 

Last week, we also heard the President, who has nominated Mr. Holmes, acknowledge that slavery and racial discrimination “placed a stain on America’s founding, a stain that we have not yet wiped clean.”  In his first-ever address to the NAACP national convention during his time in office, the President said racial discrimination remains a “wound” that “is not fully healed.”  I will not soon forget President Bush speaking to the nation from Jackson Square in New Orleans and acknowledging that “poverty has roots in a history of racial discrimination, which cut off generations from the opportunity of America.”   

Such powerful words inspire hope for change.  But that change only occurs when those words are followed by action.  During his address to the NAACP, the President lamented the Republican Party’s loss of support among many African Americans in our country today.  He called it a “tragedy” that the party of Abraham Lincoln could disenfranchise the African-American community.  It is not difficult to understand why.  Despite his eventual support for the reauthorization of the Voting Rights Act, this President’s priorities, his polices -- and indeed his nominees – do not demonstrate any sort of meaningful commitment on the part of this Administration to confront the very real racial and economic disparities that continue to persist today.

When considering a nominee to a lifetime appointment on the federal bench, a chief consideration of mine has always been whether all litigants would get a fair hearing in that nominee’s courtroom.  That is why I have been, and remain, concerned about the tone and stridency of Mr. Holmes’ writings.  In answering my questions about the tone of his criticisms of those with whom he disagrees on issues, Mr. Holmes seeks to make a distinction between “the role of the opinion-article writer” and the role of a judge.  The fact that Mr. Holmes took part in hard-edged debate on public issues should not be disqualifying.  It appears, however, that those opinions are what earned him this elevated nomination and what his proponents expect he will deliver from the bench.    

Mr. Holmes has been an outspoken critic not only of affirmative action programs and efforts to combat race discrimination, but of African-American civil rights leaders who support them, calling them “ideologically bankrupt.”  He has called into question the sincerity of civil rights organizations opposed to school vouchers by describing them as having “longstanding ties to school employee labor unions, which view vouchers as a dangerous threat to the educational status quo, in which teachers bear little or no accountability for their students’ educational failures.”  When the convention of the NAACP reacted negatively last week to President Bush’s advocacy for vouchers, it was not because they were under the sway of any teachers’ union.  It was because they know how important public education is to the futures of so many from minority communities.

In a letter to one publication, Mr. Holmes criticized claims of race discrimination based on forced assimilation, characterizing a doctor’s complaint that his colleagues had “negative reactions to his dreadlocks” as “naïve.”  In another article, he described a defense attorney’s concerns about racial bias in jury selections as “philosophically offensive.”  Mr. Holmes’ comments belittling those concerned with the persistence of race-based barriers in this country leave me with little assurance that he has the ability to maintain objectivity when applying constitutional and statutory remedies for race discrimination and concerned that he will not have an open and fair mind as a judge. 

Mr. Holmes membership in the Men’s Dinner Club of Oklahoma City, which restricts its membership to men, also concerns me about his ability to have an open mind.  He did not resign his membership until February 2, 2006, less than two weeks before his initial nomination to be United States District Judge for the District of Oklahoma, presumably only after he had been notified that he would be nominated.  When I asked him about why he said in his response to the Committee’s questionnaire that he did “not perceive the Club as practicing invidious discrimination,” he did not respond directly.  Instead, he declared in a self-serving conclusion that he would “not knowingly be a member of any organization that harbored or expressed any bias against women, or any other groups on the basis of immutable characteristics.”  I am left to wonder what it is that Mr. Holmes would consider the kind of discrimination with which he would not want to be associated and why he was not troubled by the Men’s Dinner Club.  It was a place for social and professional advancement for him and he seemed not at all concerned with its restrictive policies.  The fact that Mr. Holmes did not resign until the eve of his nomination because “some might perceive the Men’s Dinner Club as being an improper organization” is troubling.    

I worry that even before I announced any opposition to Mr. Holmes’ nomination, we had already begun to hear the whispers of criticisms taken from the pages of the playbook of extreme right-wing groups.  These groups marked a new low a few years ago by launching a scurrilous campaign to inject religion into the debate over judicial nominations.  These smears were fabricated as a calculated weapon to chill proper consideration of candidates nominated for significant judicial positions.  Similar, baseless accusations of other forms of discrimination serve only to inflame and distract from the fair and deliberate consideration of judicial nominations.  

The Senate has confirmed 255 of this President’s nominee – including 100 who were approved during the 17 months that Democrats made of the Senate majority.  The first confirmation when I became Chairman was of an African-American Circuit Court nominee on whom Republicans had refused to vote.  For that matter, it was Republican Senators who defeated the nominations of Justice Ronnie White, Judge Beatty, Judge Wynn, Kathleen McCree Lewis and so many outstanding African-Americans judges and lawyers who they pocket filibustered. 

I was surprised when we debated Mr. Holmes’ nomination in the Judiciary Committee that those defending Mr. Holmes’ nomination criticized any expression of concern about his troubling writings in the area of civil rights.  I appreciated when the Senator from Oklahoma apologized to me after that debate.  The Senators from Oklahoma are within their rights in supporting this nomination.  In fact, I consider their support as a weighty factor in considering this nomination. 

That support is not universal.  This is a controversial nomination.  A number of leading organizations concerned with civil rights, including the NAACP, MALDEF, and many others, raised “grave concern” about Mr. Holmes’ record.  The Leadership Conference on Civil Rights, the country’s oldest, largest civil rights coalition has opposed the confirmation of this nomination.  Having reviewed the record, I share those concerns. 

In the last several months, as we have worked to reauthorize and revitalize the Voting Rights Act, I have been thinking about the civil rights movement, what progress we have made, and what distance we still have to go.  The new law is named for Coretta Scott King among others.  Dr. Martin Luther King Jr. knew that our judges and our courts were important to securing civil rights.  It was not the Congress but the Supreme Court that moved the Nation forward in its Brown v. Board of Education decision in 1954.  It is worth recalling Dr. King’s call for the political branches to join the courts in protecting the fundamental rights of all.  In his 1957 address, “Give Us the Ballot,” Dr. King said, “[s]o far, only the judicial branch of the government has evinced this quality of leadership. If the executive and legislative branches of the government were as concerned about the protection of our citizenship rights as the federal courts have been, then the transition from a segregated to an integrated society would be infinitely smoother.”  Dr. King knew how important fair-minded judges were to the realization of equality.  Dr. King’s view and that expressed by Mr. Holmes appear to be in sharp contrast. 

I take no pleasure today in doing my duty.  I have considered this nomination on its merits and, in good conscience, I cannot support it.  Based on Mr. Holmes’ own writings and his responses to our questions, I will vote no.  I hope that Mr. Holmes will prove my concerns unfounded and be the kind of judge that Dr. King would have admired, a judge in the mold of Thurgood Marshall, William Hastie or A. Leon Higginbotham, Jr.      

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