At its Executive Business Meeting on February 4, 2010, the Senate Judiciary Committee sent the nominations of Edward Chen, Louis Butler, Mary Smith, and Christopher Schroeder to the floor for consideration by the Senate. President Obama resubmitted those nominations in January after the Senate adjourned in December without acting on them.
Chen, who has been nominated for a judgeship in the Northern District of California, was sent forward on a party line 12-7 vote. After three years in private practice, he worked as a staff attorney for the American Civil Liberties Union from 1985 to 2001, when he became a federal magistrate judge. While with the ACLU, Chen participated in unsuccessful challenges to an Arizona referendum calling for the State’s official business to be conducted in English, a California referendum that eliminated so-called “bilingual education” and implemented other measures for teaching English to nonnative students, and a California ban on racial preferences in state education, employment, and contracting.
While a federal magistrate judge, Chen objected to the singing of “America the Beautiful” at a funeral, citing his “feelings of ambivalence and cynicism when confronted by appeals to patriotism.” He has also endorsed the notion that judges should draw on their experiences, including “one’s ethnic and racial background,” in judging.
Butler, who has been nominated for a judgeship in the Western District of Wisconsin, also went forward on a 12-7 party line vote. In 2000, he ran for the Wisconsin Supreme Court, challenging the then-incumbent Diane Sykes, but got only 34% of the votes and did not carry a single county. When Sykes was confirmed to a federal judgeship on the Seventh Circuit Court of Appeals, Wisconsin’s Democratic Governor appointed Butler to finish out her term. While on the Wisconsin Supreme Court, Butler helped to expand the rights of criminals and the scope of potential liability for businesses. He also helped to strike down legislatively-enacted limits on punitive damages in medical malpractice lawsuits. In 2008, the voters of Wisconsin declined to elect him to the court in his own right. Apparently, Wisconsin’s Democratic Senators, who sent Butler’s name forward, believe that they know more than the voters of Wisconsin, who had two opportunities to consider Butler’s qualifications, about who will be a good judge.
Smith, who has been nominated to head the Tax Division at the Department of Justice, likewise went forward on a 12-7 vote. Smith was nominated for this position notwithstanding that she has not held a job specializing in tax law, written or spoken on tax issues, or taken a continuing legal education course in tax law. According to the Department of Justice, while she is neither “a traditional tax lawyer [n]or a tax specialist,” she does have “extensive experience in financial litigation, both for and against the government.” Senator Kyl, who voted against the nomination, pointed out that there must be “thousands of highly experienced tax lawyers who would love to have a job like this.”
Schroeder, formerly chief counsel for the Democrats on the Senate Judiciary Committee and now a law professor at Duke, went forward on a 16-3 vote. Schroeder has been nominated to head the Office of Legal Policy at DOJ. In his writings, he has objected to the use of cost-benefit analysis in the review of proposed federal regulations, and he told the Judiciary Committee that empathy is one of the qualities that should be part of a judge’s decision-making process. While voting to send the nomination forward, Senator Sessions observed that Schroeder is a “very strong partisan” and encouraged him to “be careful about that.”
Each of these nominees must be confirmed by the Senate before they can begin serving. The Senate will have to consider them carefully given the concerns raised in the Judiciary Committee.
