Senate Does Scalia Proud at Hearing on Texas Judgeships

     WASHINGTON (CN) — Five nominees to Texas federal courts earned high marks from Senate conservatives Wednesday when quizzed on the late Supreme Court Justice Antonin Scalia.
     The Senate Judiciary committee returned from a nearly two-month recess to hold a hearing on five people President Barack Obama tapped for U.S. district judgeships in Texas on March 15.
     Walter David Counts III, E. Scott Frost and Irma Carrillo Ramirez are all sitting U.S. magistrate judges in Texas. Karen Gren Scholer is in private practice now at the firm Carter Scholer Arnett Hamada & Mockler, but she served as a state judge in the Dallas County District Court from 2009 to 2013.
     The lone candidate who has not yet served on the bench is James Wesley Hendrix, the chief of the Appellate Division for the U.S. Attorney’s Office for the Northern District of Texas.
     Sen. Chuck Grassley, R-Iowa, grilled each on substantive legal topics, at one point invoking Scalia to ask about the extent that restatements – treatises on legal matters meant to educate lawyers and judges — should play in judicial decisionmaking.
     Scalia once called restatements of “questionable value,” and the nominees would have made the late jurist proud, as all agreed they would not use restatements on the bench or would do so only with caution.
     Frost said he would consider restatements only as a last resort if he had nothing else to guide him in deciding a legal matter. “It seems that any treatise that is a summary of case law is subject to interpretation of the author,” Frost said. “It’s not the actual law itself.”
     The questions senators posed to the potential lifetime appointees hinted at the differences in what Republicans and Democrats value in judges.
     Sen. Tex Cruz, R-Texas, and Grassley, for example, grilled the nominees on their opinions on judicial activism and how closely they would adhere to the Constitution.
     Sen. Amy Klobuchar, D-Minn., meanwhile wanted to know about Ramirez’s time serving on a committee that put together standards for re-entry courts, and Scholer’s view on the importance of diversity in the legal field.
     If approved, Scholer would be the first Asian-Pacific-American federal judge in Texas, which is part of the highly conservative U.S. Court of Appeals for the Fifth Circuit.
     Scholer agreed that diversity is necessary in the legal community but said it would not sway her decisionmaking from the bench.
     “With respect to diversity in the legal profession, diversity is important,” Scholer said. “It instills confidence, it provides role models and it gives inspiration to those who see those barriers ahead of them that those barriers have been moved.”
     Counts meanwhile defended himself when Grassley quoted the judge as having once called the Constitution a “living and breathing document” in a speech.
     Counts questioned whether he ever actually used the phrase in the speech or if it was just in his notes and dismissed it as an “inartful use of the phrase.”
     “If you read the statement I made in context, however, the entirety of the speech, my point was not that it was a changing document, that it was a vibrant document that continues to feel alive today,” Counts said.
     The magistrate promised he values the Constitution as the founders wrote it.
     Texas Republican Sen. John Cornyn, himself a former judge, chaired the hearing, with Grassley, Cruz and Klobuchar the only senators to join him behind the dais. Cornyn joked the lightly attended hearing was a good sign for the nominees, as a packed hearing room on Capitol Hill is the worst thing a witness can see.
     Senate Democrats have put the Judiciary Committee squarely at the center of their election-year attacks, criticizing the committee for refusing to hold hearings on Judge Merrick Garland, Obama’s choice to fill Scalia’s still-vacant Supreme Court seat, and for being slow in its response to critical court vacancies across the country.
     While the hearing was underway Democrats scheduled yet another press conference in front of the Supreme Court, this time with former clerks for Garland, to put pressure on Republicans to hold hearings on Obama’s nominee.
     While the Judiciary Committee has stood firm on its refusal to do so, it has considered a number of federal judges this year. The committee last held a judicial nomination hearing on July 13, just before the Senate went on nearly two-month recess over the summer.
     Another batch of pending nominees is expected to have a Senate hearing Thursday.
     Nominees to federal courts undergo a rigorous review before ever appearing before the Judiciary Committee for a public hearing. The few senators who attended Tuesday’s hearing thus had few particularly substantive questions for the nominees, focusing instead on general legal philosophies and how the nominees would handle the transition to the bench.

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