SPEECH: Ninth Circuit Nominees
Madam President, this week, the Senate is going to take up three Ninth Circuit judges, three Federal judges for the U.S. Court of Appeals for the Ninth Circuit.
And in the process, the Biden administration is going to smash an institutional and constitutional norm between the executive and legislative branches, particularly the executive branch, the White House, and the U.S. Senate that every U.S. Senator--all 100 of us--should be concerned about.
Let me explain. This is a really important issue.
Article II, section 2, of the U.S. Constitution says the following:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.
Now, that includes Federal circuit court judges,
Throughout this, article II, section 2, provision of the Constitution, it says: ``[W]ith the Advice and Consent of the Senate.'' We are ``of the Senate,'' right here. And this week, we will be voting on three U.S. court of appeals for the Ninth Circuit.
Now, this provision in the Constitution, like so many which gives the U.S. Senate the exclusive right for the advice and consent power, was the result of compromise.
If you look at the history in Federalist Nos. 75 and 76, Alexander Hamilton argued that this provision afforded a necessary means of checks and balances against the executive branch, against the President.
The Constitution--according to the U.S. Senate history that I am quoting from--``also provides that the Senate shall have the power to accept or reject presidential appointees to the executive and judicial branches.''
This was born of compromise, as I mentioned:
In debating the issue, the framers addressed concerns that entrusting the appointment power exclusively to the president would encourage monarchial tendencies. Additionally, as the Senate was to represent each state equally, its role--The advice and consent role in the Constitution--offered security to the small states, whose delegates feared they would be overwhelmed by appointees sympathetic to larger states.
For these reasons, since I have been in the U.S. Senate, I have taken this advice and consent role very seriously for all nominees: during the Obama administration, when I was here for the last 2 years of that administration; all of the Trump administration; and now the Biden administration.
And as you can imagine, whenever I have asked for a meeting of any nominee so I could meet with them under this constitutional provision for a Senate-confirmed position, every single administration I have dealt with--the three I just named--has said: Of course, Senator. That is your constitutional role. Of course you should meet with them.
Why is that? Why has every White House said yes?
Because, as I just mentioned, they know that that is literally our constitutional role, as I just mentioned.
So every time I have asked for one of these meetings for a Senate-confirmed nominee of any administration, it has always been granted, until today--until today.
As I said, the Senate's business--a lot of the business this week is actually going to be focused on the advice and consent constitutional role that we have, especially as it relates to judges.
But I have been told by this White House, specifically the White House Counsel, I guess--to be honest, it is often difficult to figure out who is in charge over there--that I can't meet with any of these Ninth Circuit judges that we are going to vote on this week before the vote.
This is a shocking breach of constitutional norms between the White House and the Senate that every Senator here--every Senator, regardless of party--should be concerned about.
Why?
As I mentioned, the advice and consent role is really important for every Senate-confirmed position, mandated by the U.S. Constitution, but it is particularly important for judges--judges who will get life tenure. By the end of this week, it is likely that these three Ninth Circuit judges will be on the bench for the rest of their lives, and right now I can't get a 1-hour meeting with them.
They have enormous power over American citizens. And I am going to talk about the Ninth Circuit and the power it has over my citizens.
So my experience as a Senator is that I meet with as many judges as possible, and whenever I have requested a meeting of any administration to meet with a judge, it has always been granted. But I always, always, always meet with the Ninth Circuit judges.
As I mentioned, until now, I had interviewed every single Ninth Circuit judge that this body has voted on for the last 7 years--every single one--during my entire time in the Senate.
Why is it so important to me?
Why is it so important to everybody?
Well, specifically, as it relates to the Ninth Circuit, if you can look at this map, as many Americans know, our Federal court systems are divided into what are called circuits. The Ninth Circuit, which is this dark brown, is the biggest Federal court of appeals in the country. It is huge. Look at all the States that are under the jurisdiction of the Ninth Circuit: California, Idaho, Arizona, Washington, Oregon, Montana, Alaska, Hawaii. It is enormous. Almost one in five Americans are under the jurisdiction of the Ninth Circuit. It has enormous power, especially over my constituents in the great State of Alaska.
But here is the thing. If you look at the number of judges that each Circuit Court gets, another reason why the Ninth Circuit is so important and so powerful is that it gets an enormous number of judges. The Ninth Circuit is listed here on the far left. Out of 29 active judges, one judge comes from the great State of Alaska. One judge comes from the great State of Alaska. So, as you can imagine, discussing legal issues with any judge from the Ninth Circuit is very important to me and, more importantly, to the people I represent.
Here is something else about the Ninth Circuit. On so many issues that matter to my constituents, the court gets the legal issues wrong. The court gets the legal issues wrong.
Now, I have seen this firsthand. Almost 25 years ago, I had the honor of being a Ninth Circuit law clerk for the only Ninth Circuit judge we have in Alaska, Judge Andrew Kleinfeld, a phenomenal judge. I watched panel after panel in the Ninth Circuit get cases related to the great State of Alaska wrong.
Now, look. In some ways it is not their fault. Yes, they had different views and a legal outlook. But if you are a judge and you grew up in LA and all you know is LA and California laws, and now you are a Ninth Circuit judge and you are supposed to rule on all these Alaska-specific Federal laws, you really don't know what you are doing. You don't really know what you are doing, and I saw that as a young lawyer.
But don't take my word for it.
In the last 4 years, the U.S. Supreme Court has taken up three specific Alaska cases, two of which were from the Ninth Circuit and one of which was from the DC Circuit. These big, important circuits all got them wrong. They are cases that would have changed the history and future of my State.
So when I meet with nominees for the U.S. Court of Appeals for the Ninth Circuit, it is usually always very cordial. I walk them through a lot of issues, legal issues of which they know very little about--again, not their fault--and to explain why these are so important to the people I represent.
Again, if you are an LA lawyer or a lawyer from Phoenix, you don't know about Native Alaskan law. You don't know about the Alaskan National Interest Lands Conservation Act, called ANILCA--a Federal law, 1,000 pages--that the U.S. Supreme Court, in the last 3 years, twice smacked down the Ninth Circuit, 9 to 0--9 to 0--because the Ninth Circuit continually gets these Alaska-focused statutes wrong.
So I walk them through these issues. That is all I do. It is not a big deal. It is actually trying to help the judges. I think every Ninth Circuit judge I have met with appreciates it.
Let me give you a couple of examples of what I would do if I could meet with these judges.
Like I said, ANILCA, or the Alaska National Interest Lands Conservation Act, is a hugely important Federal law that was passed in 1980. We didn't want it, by the way. It federalized almost 100 million acres of land in Alaska. Imagine that. Most States aren't even as big as 100 million acres.
The U.S. Supreme Court ruled 9 to 0 in favor of a moose hunter who wanted access to Federal land. His name is John Sturgeon. He is a very famous Alaskan right now.
It went back to the Ninth Circuit. They misinterpreted it. It went back up to the U.S. Supreme Court--9-zip--they smacked it down again.
Justice Kagan, who wrote the second opinion, said: ``If [John] Sturgeon lived in any other State, his [law]suit would not have [had] a prayer of success. . . . Except that Sturgeon lives in Alaska. And as we [the U.S. Supreme Court] have said before, `Alaska is often the exception, not the rule,' '' when it comes to these kind of Federal laws in Federal parks.
Do you think it would be good to have a Ninth Circuit judge getting ready to get on the court to understand the Sturgeon case? It would be. So that is what I do. I have the judges read Sturgeon. I have them read other cases. It is all advice and consent. It is our constitutional role. Until today, I have done it with every Ninth Circuit judge.
Like I said, I was over at the White House on Friday, really kind of banging the table on the Biden administration's war on Alaska. Some of you may have seen a speech I gave last week. There are 20 Executive orders and Executive actions singularly focused on my great State--20--crushing working families.
And I said: You know, one thing I would like to do is continue my record of meeting with every Ninth Circuit judge. I am available Sunday, Sunday night, all day Monday. Give me a call. I haven't heard anything back.
Something else I do with these judges when they come before me is I talk about Indian law. Now a lot of lawyers think, ``Hey, I really know Indian law well.'' And my advice and counsel in the advice-and-consent process, when it comes to Indian law in Alaska, is ``If you think you are an expert, throw out everything you know about lower 48 Indian law when it comes to Alaskan Indian law.
The Native Alaskan law, in Alaska--the Federal law--is 100 percent different than it is in the lower 48. This is just advice I give judges who are going on the Ninth Circuit. They don't know this. An LA lawyer doesn't know this.
This week, we are celebrating the 50th anniversary of Congress's passage of the Alaska Native Claims Settlement Act, what we call in Alaska ANCSA, the largest settlement of indigenous land claims, certainly, in America, and probably in the world. It is a really successful act, not perfect, very innovative. But it has been litigated like crazy.
We had a case from the Ninth Circuit several years ago that essentially said: ANCSA created reservation land throughout the entire State of Alaska.
That would have changed the history of Alaska forever. Of course, the Ninth Circuit got it wrong. That case went up to the Supreme Court. Nine-zip, the Supreme Court smacked down the Ninth Circuit. They said: ANCSA doesn't do that. That is not what Congress intended.
Do you think it would be good for these judges this week, if I could sit down with them, to understand that? It would be really good, really important. It would help them for their job.
Just this year, the DC Circuit on another ANCSA-related case, the Chehalis case, got ANCSA wrong again. And guess what. It went up to the U.S. Supreme Court again. They just ruled on it 4 months ago. It was a huge victory for my State, again.
We wrote an amicus brief--Senator Murkowski, Congressman Young, and I. But it was enormously important. This wrong case of the DC Circuit would have changed the history of Alaska forever. The Supreme Court, 6 to 3, said: No, you are misinterpreting Alaska.
Do you think these judges on the Ninth Circuit who we are debating to confirm this week would learn a little bit about that if I could meet with them? They would.
Finally, the other thing I always do with circuit judges is I talk about the Second Amendment. The Second Amendment is really, really important to the people I represent. We use firearms for food, for self-defense in the wild. Well over 60 percent of all the homes in my State have firearms for these reasons.
If you are an LA lawyer, you don't know this stuff. But, all of a sudden, you are going to be ruling on cases that deal with Alaska or Idaho or Montana. And here is the thing: They might not know these issues, these judges. I have looked at their background. I wanted to interview them. Remarkably, I can't get an interview with them.
And here is the thing: As soon as they get confirmed, they are going to get these cases before them, in my State and other States, to rule on these kinds of issues.
Do you think a meeting would help them?
“Boy, I should really think about that. I remember Senator Sullivan talked about ANILCA and the Sturgeon case. I am really glad I read the Sturgeon case.”
This is why these advice-and-consent constitutional meetings are so important.
And, as I mentioned, I have been doing this my entire time in the Senate. I have never not had a meeting with a Ninth Circuit judge. It doesn't matter where they are from--Montana, Arizona, Washington State. They are going to rule on issues that relate to my State and my constituents.
And these judges don't mind it. They actually, I think, enjoy it. They learn. But this White House says: You can't meet with them.
This is absurd.
Here is the question: What are they hiding?
What are they worried about?
Are they hiding something? Are the judges hiding something?
Again, this is a precedent that Democrats and Republicans should all be against, because we know what goes around comes around in this body. And this just doesn't make sense.
All three of these Ninth Circuit judges will have life tenure and enormous, enormous power over everybody in the Ninth Circuit. That is 20 percent of all Americans, and, certainly, enormous power over the people in Alaska, whom I am privileged to serve and represent.
These judges are likely to know very little about these issues that I just talked about. Well, I believe I have a constitutional role to help them understand these issues better, and that is the way it has always been. Nobody has complained.
Absurdly, the White House has said: Well, Senator Sullivan, you can meet with a Ninth Circuit judge if they are from Alaska.
What? We have one judge, and she is not going to be retiring any time soon. That is it.
Now, here is the thing. I just talked to the previous administration's White House counsel this morning, when I called the Biden administration's counsel this morning. I am still waiting for that phone call, by the way, because I said: Look, if the White House Counsel is saying no to a U.S. Senator to do his constitutional duty, I would like to hear it directly from her.
So she hasn't called me back yet. But I talked to the previous administration's White House Counsel, and I asked: By the way, did you guys do this? I am just double-checking. I mean, I got to meet with all the Ninth Circuit judges President Trump put forward. But did you blackball Democrats? Did you do that?
And they said: Absolutely not.
I made a few phone calls to other people in the White House Counsel's office. They said: To the contrary, when any Senator wanted to meet with any circuit judge, we always made it happen.
So this is a new precedent. And, again, it doesn't matter if you are a Republican or a Democrat. This is just a bad precedent.
And the notion that ``Well, Senator, you get to meet with a Ninth Circuit judge from Alaska,'' when, by the way, California, I think, has close to 20 Ninth Circuit judges--but the notion that you can only meet with the one who is from your State is actually moronic. The people who need to be educated are the ones who aren't from your State, because they are all going to rule on issues from your State.
So I am still waiting for the White House Counsel to call me back--or whoever is in charge in the White House.
But I am going to conclude with this. I am going to go around them. I am going to go around them. Here is what I am going to do, and I hope someone is watching from the White House. But, more importantly, I hope someone is watching from the judge's chambers.
So, Judge Koh, we are getting ready to vote on your nomination tonight.
Judge Sung of Oregon, we are getting ready to vote on your nomination tomorrow.
Judge Sanchez of California, the rumor is, the majority leader is going to file cloture on your nomination.
Those are three Ninth Circuit judges.
Judge Holly Thomas of California, you might get voted on this week too.
Four.
Here is my ask: Give me a call. Give me a call. Give my office a call. I will meet with you tonight. Let's do a phone call. Do you want to learn about ANILCA? Do you want to learn about the Sturgeon case? It will make you a better Ninth Circuit judge. Here is the number: (202) 224-1026. Give my office a call. I am ready to meet anytime.
Here is the thing for the judges: It is 1 hour of your time. You are going to have lifetime tenure. It is 1 hour to talk to a U.S. Senator who is doing his constitutional duty for the people he represents. It shouldn't be that hard. As a matter of fact, this is probably your first test of judicial independence. A U.S. Senator of the Senate--of the Senate; read the Constitution--wants to undertake his advice and consent, his constitutional role, with you, OK?
You guys have read the Constitution, those four judges I just mentioned, but an unelected bureaucrat in the White House--I guess the White House Counsel, but who the heck knows; it is hard to tell who is in charge over there--is blocking this.
So, again, give my office a call at (202) 224-1026. I am ready to meet and talk to you anytime before the vote. Don't worry--I don't think President Biden is going to yank your nomination if you call me. Heck, he probably doesn't even know this is going on. But you know this is the right thing to do, Judges. You have read the Constitution. Heck, if our meeting goes well, I might even vote for you.
But here is the thing: You will learn more about the issues that you are going to have to deal with very soon in your tenure that you probably don't know anything about--no offense to you. I have read your backgrounds. You don't know anything about Native Alaskan law. You don't know anything about ANILCA. You probably have very different views than I and my constituents do on the Second Amendment. But you need to hear these issues because you are going to be life-tenured on the Ninth Circuit, and you don't have time to talk to me, a U.S. Senator, who is a Senator representing a State from the Ninth Circuit? You know it is wrong.
By the way, my colleagues in the Senate know it is wrong. So I hope my Democratic and Republican colleagues realize that this is not a good precedent. This is not a good precedent. It has never happened as long as I have been here.
You know, from big things to small things, this administration has really focused in many ways on smashing political and institutional norms that have enjoyed strong bipartisan support. It is not good for this body, and it is not good for the government.
The Wall Street Journal, today, had an article about Biden's Federal regulators staging a coup against the Director of the FDIC on bank mergers. One of these regulators doesn't even have the power over bank mergers, and now he is trying to be in charge.
I serve on the U.S. Naval Academy's Board of Visitors. It is a huge honor. The President comes in, President Biden, and fires everybody on the service academies who was appointed by President Trump. Nobody has ever done that before--no President. Everybody on the Board of Visitors of the Naval Academy is furious--the Democrats, the Republicans. The No. 1 thing they are saying is, this President is the first one to politicize the service academies. Then, oh, by the way, he hasn't appointed anyone yet to replace the people he fired, so we didn't have a quorum for our meeting last week.
He is just smashing institutional norms. Yet this institutional norm of advice and consent, when it comes to circuit court judges with life tenure, is something that we have all agreed upon. The previous administration certainly allowed for it. Yet, right now, I can't meet with Ninth Circuit judges who are going to have enormous power for their entire lives over my constituents.
So, to my colleagues, we shouldn't allow this. You guys know it is wrong.
To the judges--like I said, Judge Sanchez, Judge Koh, Judge Sung, Judge Thomas--give my office a call. Do the right thing. Your first test of judicial independence is before you of the Senate. The U.S. Senate--of the Senate, of which I am a part--wants to do our constitutional role. Give us a call so we can do it. Ignore the very bad advice you are getting from the White House Counsel or whoever is in charge over there.
I yield the floor.
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