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President Obama has .989 Average on Judicial Nominees Confirmations

Orrick Nomination to be District Judge

On the Nomination of
William H Orrick, III, to be United States District Judge for the
Northern District of California
Wednesday, May 15, 2013

Mr. President,
I rise in opposition to Mr. Orrick’s nomination to be a District Judge for the Northern District of California and I’d like to take a few moments to explain to my colleagues why I will be voting “No”.

Before I discuss the nominee, however, I will update my colleagues on where we stand with judicial confirmations. Thus far, the Senate has confirmed187 District and Circuit nominees; we have defeated two. That’s 187 -2; which is a .989 batting average. That is an outstanding record.

So far this year, the Senate has confirmed 16 nominees. Today, if Mr. Orrick is confirmed, we confirm the 17th nominee. At this stage in President Bush’s second term only 4 were confirmed. That’s a record of 17 to 4.

This President is being treated exceptionally fairly.

The President has recently submitted a few new nominations. I know I have been reminding him that we can’t do anything about vacancies without him first sending up nominees.

But again, even with the recent nominations, 61 of 85 nominations still have no nominee. That’s nearly 3 out of 4 vacancies. And for judicial emergencies, only 8 of 35 vacancies have a nominee.

So I just wanted to set the record straight before we vote on this nominee.

Again, I will be voting ‘No’ on Mr. Orrick’s nomination. I was troubled by his intervention in Utah, Arizona, South Carolina and Alabama. In those states he led the effort to strike down the statutes in those states addressing the federal government’s failure to enforce immigration laws. We are in the middle of marking up a comprehensive immigration bill. It is clear that enforcement is a problem.

I, and some of my colleagues, would like to strengthen enforcement. But Mr. Orrick was out there leading the effort to maintain the weak status quo. I don’t know why that should lead to a lifetime appointment on the federal bench.

I was also disappointed by Mr. Orrick’s responses to many of my questions at his hearing and in follow-up questions for the record. At his hearing, I asked him a number of questions that he said he couldn’t answer at the hearing, but that he would familiarize himself with the issues. I offered to submit those questions in writing to provide Mr. Orrick the opportunity to answer them, a courtesy the committee commonly extends to nominees in these circumstances.

After granting Mr. Orrick this courtesy, I was disappointed that he still failed to answer many of my questions. So I extended the courtesy a second time, offering Mr. Orrick the opportunity to provide a responsive answer to my earlier questions. Unfortunately, the “answers” he provided to my second set of questions were as non-responsive as the first.

Now, I understand that it is not unusual for nominees to claim they are unable to answer a particular question. But I must say that the degree of Mr. Orrick’s non-responsiveness rose to a level well above what we typically see from nominees.

Moreover, just because a particular answer might be awkward for the administration, that does not justify refusing to provide that answer.

Now, although there were a host of questions Mr. Orrick would not answer, I will provide you with just one example. In the hearing, I asked Mr. Orrick about a particular Ninth Circuit case and asked if it was controlling. This was in connection with a brief he filed opposing the Defense of Marriage Act. I thought he mischaracterized the precedent and wanted an explanation. At a minimum, I wanted to know if he had a basic knowledge of the precedent and recognized it as current law. He answered, “I will follow controlling precedent wherever it exists.”

That is a clever answer. But of course, it doesn’t answer the question. So, in my written questions, I asked again if the Adams case was controlling precedent.

He responded that he was reluctant to answer because a similar case could come before him. This struck me as odd for two reasons. First, if confirmed, he would likely recuse himself from any case where he crafted a part of the Justice Department’s policy or stance. And second, I wasn’t asking for his personal views on the Adams case. I was trying to assess his legal ability. I want to know whether he will recognize that a particular case is controlling – even if he, or the administration for that matter, may not agree with it.

That is what serving as a district court judge is all about: applying controlling case law, whether or not you agree with the holding.

So, I sent him a second set of Questions for the Record, and asked him again if Adams was controlling precedent. He still wouldn’t answer. The second time, Mr. Orrick agreed that he should recuse myself from such cases, but then reserved the right not to recuse himself. And, I still don’t have an answer to my original question raised in the hearing: does Mr. Orrick recognize Adams as controlling precedent in the Ninth Circuit?

Unfortunately, based on this and other aspects of Mr. Orrick’s record that I find troubling, I cannot support his nomination.

I will submit the rest of my statement for the record:

Following graduation from Boston College Law School in 1979, Mr. Orrick began practicing law in Savannah, Georgia at Georgia Legal Services, a general legal practice representing low-income individuals in litigation. In 1984, Mr. Orrick moved to California to join the law firm of Coblentz, Patch, Duffy, & Bass, LLP. His practice with the firm initially focused on complex commercial litigation. After making partner in 1998, his practice broadened to include employment litigation. His clientele included both individuals and corporations.

During this same period, Mr. Orrick also served the Episcopal Bishop of California, essentially acting as outside general counsel. This included advising the Diocese on interpretation of church canons, the various rights of congregations leaving the Diocese, and clergy’s duties to report child abuse. He received compensation for these services.

In June 2009, Mr. Orrick joined the Department of Justice as a counselor to the Assistant Attorney General for the Civil Division in Washington, D.C. His responsibilities included “matters related to the Freedom of Information Act, tobacco litigation, increasing affirmative consumer litigation brought by the Civil Division, analysis of amendments to the False Claims Act, litigation reports ‘s national security cases, and efforts to increase access to justice, including expansion of the Civil Division’s pro bono efforts.” In September 2009, he started supervising immigration litigation within the Division.

In June 2010, Mr. Orrick was appointed Deputy Assistant Attorney General in the Civil Division, Department of Justice. In this role, he oversees the Office of Immigration Litigation, which is comprised of over 300 lawyers. This office handles “all federal appellate litigation arising from petitions for review from the immigration courts and roughly 50% of the civil United States District Court immigration matters, primarily class actions, habeas and mandamus petitions, and certain Bivens actions.” He also participates on several coordinating task forces that oversee immigration and national security related issues.

Mr. Orrick reports that throughout his career he has represented private individuals, small businesses, and large corporations in litigation matters before state and federal courts. He estimates that approximately 97% of his practice has been in the area of litigation and has tried 16 cases to verdict, judgment or final decision as either sole or lead counsel.

The American Bar Association’s Standing Committee on the Federal Judiciary gave him a Unanimous “Well Qualified” rating.

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