Sen. Feinstein’s Statement on Confirmation of Edward Chen as U.S. District Judge

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Judge Edward Chen

WASHINGTON — U.S. Sen. Dianne Feinstein (D-Calif.), a senior member of the Senate Judiciary Committee, issued the following statement Tuesday after the Senate voted 56-42 to confirm Judge Edward Milton Chen to become a U.S. district judge for the Northern District of California:

“Judge Chen has both judicial experience and a proven judicial track record. He is a solid, tested, and a respected judge with over a decade of experience on the federal bench.

“In his 10 years as a judge, he has written more than 350 published opinions. I would point out that not one of those opinions has been criticized in the entire 20 months that his nomination has been awaiting action in the Senate. In fact, there is broad consensus among those who have reviewed Chen’s judicial record – he is a very good judge.

“I recommended Judge Edward Chen to the president, and I am delighted by his confirmation today.”

A full transcript of Feinstein’s remarks on the Senate floor follows.

Mr. President, I rise to speak on the nomination of U.S. Magistrate Judge Edward Chen to become a U.S. District Judge for the Northern District of California.

I recommended Judge Chen to the president, and he has my strongest support.

Chen was born and raised in Oakland, Calif., and is the son of Chinese immigrants.  His father immigrated to the United States in the 1920s, and his mother in the 1930s.

He attended public schools in Oakland, and then went on to the University of California, Berkeley, where he received his undergraduate degree with great distinction, and to Boalt Hall School of Law, where he graduated in the top 10 percent of his class.

He was a law clerk to District Judge Charles Renfrew on the U.S. District Court for the Northern District of California, and also to Circuit Judge James Browning on the U.S. Court of Appeals for the Ninth Circuit.

He then began his legal career as a litigator, first at the private law firm of Coblentz, Patch, Duffy, and Bass, and later as a staff attorney at the American Civil Liberties Union.

In 2001, Chen was appointed to be a U.S. magistrate judge for the Northern District of California.

Today, Chen is a solid, tested, and respected judge with over a decade of experience on the federal bench.

He has presided over both civil and criminal cases; he has handled preliminary matters and motions; and he has seen more than 15 cases from filing to verdict.

In his 10 years as a judge, he has written more than 350 published opinions. I would point out that not one of those opinions has been criticized in the entire 20 months that his nomination has been awaiting action in the Senate.

In fact, there is broad consensus among those who have reviewed Chen’s judicial record – he is a very good judge.

Edward Chen was recommended to me by a bipartisan Judicial Advisory Committee. That committee reviewed his record and spoke with judges, attorneys, and litigants who knew his work as a judge. The committee unanimously recommended that I forward his name for the District Court.

The San Francisco Bar Association has rated him “exceptionally well qualified” for the District Court. That’s their highest rating.

The American Bar Association has rated him “well qualified.” That’s their highest rating.

And in 2009, a Merit Selection Review Panel appointed by the U.S. District Court thoroughly reviewed his record and recommended him for reappointment as a magistrate judge. That panel consisted of seven lawyers appointed by the District Court. Here is what they found.

They solicited public comments on Chen’s work as a judge. Only positive information was forthcoming.

They talked to federal prosecutors in the U.S. Attorney’s Office. Again, the reports were uniformly favorable. Prosecutors called Chen’s analytical skills “exemplary” and said his rulings were “balanced and well reasoned.”

Defense attorneys were similarly positive. They described Chen as “respectful,” and “considered” in his judgments.

And partners with large law firms called Chen “prompt,” “well prepared,” “very intelligent,” and “decisive.”

Overall, the panel recommended unequivocally that Chen be reappointed for a second eight-year term as a magistrate judge.

Since Chen’s nomination for the District Court, the reports we have received in the Senate from those who know Chen’s work as a judge have been similarly positive.

We have received letters urging Chen’s confirmation from Republicans and Democrats, public officials and law enforcement, judges, civil rights groups, business leaders, and private lawyers.

Let me share just a few with you.

Judge Lowell Jensen was appointed to the U.S. District Court by President Reagan and also served as second-in-charge of the Department of Justice during the Reagan Administration. He has worked closely with Chen on the federal bench and had this to say about him:

“I have found Judge Chen to be both an excellent jurist and a person of high character. He brings a conscientious, careful, and impartial approach to every issue and every party. The decisions he makes reflect not only good judgment, but a complete commitment to the principles of fair trial and the application of the rule of law. I support his confirmation without reservation.”

Former U.S. District Judge Fern Smith was also appointed by President Reagan to the federal court. She wrote: “Both in my own dealings with [Judge Chen] and based on his reputation among my former colleagues, I can attest to his intellectual competence, his respect for the law, his judicial temperament, and his integrity. I have no doubt that Ed Chen would do honor to any of our 94 U.S. District Courts.”

Thomas Mazzucco is president of the San Francisco Police Commission and a lifelong Republican. He published an op-ed in Roll Call urging the Senate to confirm Chen and calling him “an experienced judge who understands the distinction between personal preference and judicial obligation and who has always based his rulings – more than 300 decisions over eight years – solely on the law and the merits of the case.”

And the San Francisco Deputy Sheriffs’ Association has said “Chen has earned a reputation as an evenhanded jurist who is constantly mindful of the role that judges such as himself fulfill in our society: as keepers of the rule of law and public trust in our system of justice.”

I have over 50 more letters.  They come from:

Sen. Dianne Feinstein

The mayors of San Francisco, Oakland, and San Jose, Calif.;

The sheriff, city attorney, former chief of police and former U.S. marshal of San Francisco;

The last 10 presidents of the Bar Association of San Francisco;

The Congressional Asian Pacific American Caucus;

The National Asian Pacific American Bar Association;

and many others.

Their judgment is clear:  Edward Chen is fair. He is impartial. He is an excellent jurist who deserves to be confirmed.

But despite this long judicial track record and broad bipartisan support, this nomination has been sitting in the Senate for more than 600 days.

The president first nominated Chen on Aug. 6, 2009. That was 643 days ago. Since that time, the minority has required the nomination to be sent back to the president three different times. And the Senate Judiciary Committee has had to consider the nomination four separate times.

I find this extraordinary.

This is a District Court nominee with 10 years of judicial experience.

When other judicial nominees have come before the Senate, they have been criticized because they did not have judicial experience, or because there was no judicial track record to review.

Well, here is a nominee who has both.

Ten years on the bench. Bipartisan support and uniformly positive reviews. More than 350 published opinions, and there has not been criticism of a single one. But his nomination has nonetheless been sitting in the Senate for 600 days and sent back to the president three separate times.

I find this to be a deeply disappointing testament to the situation we face in the Senate today.

Let me pose the question that Police Commissioner Mazzucco asked in his op-ed:

“If Judge Chen — an experienced judge whose judicial record proves he is committed to the rule of law without bias or favor and who is widely respected by the bar that has practiced before him — isn’t qualified for the federal bench, who is?”

So what happened here? Well, let me take a few moments to address some of the attacks that have been made on Judge Chen.

First, Chen has been criticized because he worked for the ACLU before he became a judge.

No one disputes that. Chen was once an advocate. That’s a fact. But he also has a 10-year track record to prove that he has made the transition. He was once an advocate. He is now a judge.

As a coalition of Northern Californian Asian American bar associations wrote:

Chen “has made a successful transition from a zealous advocate to a balanced and conscientious adjudicator who is committed to the impartial and active administration of justice.”

Former federal prosecutors from the Northern District of California made the same point.  They wrote:

“Judge Chen consistently treats all sides evenly and impartially, and conducts himself with the utmost propriety, as is fitting for a judge…  While we are aware of his previous position as a staff attorney at the ACLU of Northern California over eight years ago, Judge Chen does not show favoritism toward the parties or issues before him.”

The record is available. The evidence is in. Chen understands the unique role of the impartial adjudicator. He knows what it means to decide cases even-handedly. He has been doing it for more than 10 years.

Let me turn then to the speeches.

Since 2009, the Washington Times and others have used a handful of quotes from speeches Chen has given during his time as a judge to try to paint him as someone he is not.

As happens far too often, these quotes have been cut, spliced, and taken far out of context.

Let me give you one example.

Fred Korematsu (Photo by Shirley Nakao)

The Washington Times has tried to label Chen a “radical” based on a speech he gave to students following the funeral of a man by the name of Fred Korematsu.

Now, some of you may be too young to remember Mr. Korematsu and his fight against the Japanese internment, but I am not.

One of the singular experiences of my lifetime was when my father took me as a small child to the Tanforan Racetrack. That racetrack was down the peninsula from San Francisco. During World War II, it was taken out of action turned into an internment camp. It was fenced with barbed wire. Small buildings lined the center portion of the track. And Japanese Americans were picked up one by one without due process and placed in this internment camp …

One young Californian, Fred Korematsu, challenged the internment. He took his case all the way to the U.S. Supreme Court and argued that the U.S. Constitution did not permit loyal American citizens to be forced into these camps solely because of their Japanese American heritage. The Supreme Court heard his case, but he lost in a decision that is considered by many a black stain on the jurisprudence of our Supreme Court.

Decades later, in 1983, Korematsu challenged his conviction again. This time, he was represented by a team of volunteer lawyers, including Edward Chen.

This team put forward newly discovered evidence that demonstrated that prosecutors in Korematsu’s original case had withheld evidence, specifically, they had withheld U.S. government intelligence at the time that indicated that the internment was neither necessary nor justified.

This time, they won. Forty-one years after the original internment order, Fred Korematsu’s conviction was overturned by the District Court …

[In 1988] President Reagan signed into law the Civil Liberties Act, which issued a formal, national apology for the Japanese internment.

So this is the full context for a speech that Edward Chen gave in 2005, after Fred Korematsu’s funeral.

Chen was speaking to a group of students and reflecting on the funeral. According to his notes, he told the students that at times he had experienced “feelings of ambivalence and cynicism when confronted by appeals to patriotism.”

That’s the line that the Washington Times and even members of this Senate have picked out and tried to use to paint Chen as unpatriotic.

Maybe they didn’t know the context.

Sometimes, things that have monumental importance at the time, like the internment of Japanese American citizens without due process, fade too quickly from our historical memory.

But I can tell you. This was a big deal. The Japanese internment was not a proud moment for our country. This Congress and President Reagan issued a formal apology for the injustice that was done.

So now, to take this quote from a speech after Fred Korematsu’s funeral and use it to try to imply that Edward Chen does not love his country – it’s shameful.

It’s also flatly inconsistent with the rest of the speech. Chen went on to say that when the congregation sang “America the Beautiful” at Korematsu’s funeral, he was moved to tears because “the song described the America that Fred envisioned. The America whose promised beauty he sought to fulfill, an America true to its founding principles.”

Fred Korematsu is no longer with us. But his daughter Karen sent me a letter about Edward Chen.  Here are some of her words:

“My father’s belief in our Constitution was unwavering, even when he was treated unfairly. Like my father, Judge Chen is adamant about upholding the Constitution, without bias or prejudice.”

In my view, Edward Chen is a judicial nominee who has been treated extraordinarily unfairly. But he remains steadfast in his commitment to serving our country as a federal judge.

And he has a 10-year judicial track record to show that he will serve us exceedingly well.

I urge my colleagues to vote yes on the nomination of Judge Edward Chen to be district judge for the Northern District of California.

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