[Congressional Record Volume 144, Number 39 (Tuesday, March 31, 1998)]
[Senate]
[Pages S2873-S2874]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        NOMINATION OF JUDGE PAEZ

  Mr. ABRAHAM. Mr. President, I wanted to make a few comments about 
Judge Paez's nomination, which was recently reported out of the 
Judiciary Committee with six Members noting dissents. Because I had a 
prior commitment, when the markup was moved from 10:00 A.M. to 5:30 
P.M. Thursday afternoon I was not able to be there and accordingly did 
not record a position on this matter, which was voted on by voice vote 
with those wishing to note a dissent doing so. I would like the record 
to reflect, however, that I have serious objections to this nominee's 
confirmation. My reasons center around some comments Judge Paez made 
about two California initiatives while he was serving as a district 
judge.
  In a speech given at Boalt Hall in April of 1995 as part of a series 
of lectures on Law & Cultural Diversity honoring Judge Mario Olmos, a 
Boalt Hall graduate, Judge Paez said the following:

       The Latino community has, for some time now, faced 
     heightened discrimination and hostility, which came to a head 
     with the passage of Proposition 187. The proposed anti-civil 
     rights initiative [which was eventually placed on the ballot 
     as Proposition 209] will inflame the issues all over again, 
     without contributing to any serious discussion of our 
     differences and similarities or ways to ensure equal 
     opportunity for all.

  Here are my concerns. In the case of Proposition 187, an initiative 
barring receipt of state-funded benefits by illegal aliens, at the time 
Judge Paez made these remarks, he was a sitting district court judge, 
and there was litigation pending in Judge Paez's own court regarding 
the constitutionality of this initiative. That court had granted a 
t.r.o. and had before it a request for a preliminary injunction, which 
the district court did not rule on until November 1995, seven months 
after Judge Paez made this speech. Assuming some aspects of the 
initiative ultimately survived this facial constitutional challenge, a 
question that I believe has just gone to the Ninth Circuit, there was 
also certain to be litigation over how it should be interpreted.
  Judge Paez's comments on the initiative, it seems to me, at a minimum 
at least unnecessarily raise a question as to whether he will be able 
to decide cases presenting issues relating to Proposition 187 
impartially. Indeed, at his hearing, when asked about these remarks, 
Judge Paez practically acknowledged this problem in that he cited the 
pending cases as a reason why he needed to be cautious in answering 
Judiciary Committee Members' questions about what he had said. That is 
the very reason he should not have said what he did in the first place. 
Accordingly, I think these comments are inconsistent with Canon 4 of 
the Model Code of Judicial Conduct, governing judges' extra-judicial 
activities. Under that canon, off the bench a judge is supposed to 
conduct himself or herself so as not to ``cast reasonable doubt on the 
judge's capacity to act impartially as a judge.''
  As for Judge Paez's comments regarding Proposition 209, barring 
racial preferences in the provision of public services, I believe they 
raise similar concerns and some additional ones as well. Proposition 
209 had not even been placed before the voters at the time these 
comments were made, and so as far as I am aware, there was no pending 
litigation about it at the time Judge Paez made these comments--
although we have had before us another nominee for the Ninth Circuit 
who tried to get an injunction against circulating petitions to place 
an initiative on the ballot, so such litigation certainly was not an 
impossibility even at that stage of the process. Even if no challenge 
along those lines were brought, however, it was crystal clear that 
there certainly would be ample litigation about it if the initiative 
was placed on the ballot and passed, and that again, it was likely to 
be in Judge Paez's court. Indeed we know that is in fact what happened. 
So in that instance as well, it seems to me that these comments are 
dubious under Canon 4.
  In addition, I think they are problematic under Canon 5(D). That 
canon generally prohibits judges from engaging in political activity. 
Judge Paez gave this speech on April 6, 1995. The next day, the 
California Democratic Party opened its State convention, where press 
reports say that the question of how to respond to the circulating 
initiative was one of the central issues on the table. One day later, 
President Clinton went out to California to give a speech on the 
subject. According to the press, at the time many were arguing that 
given California's significance in Presidential politics, this issue 
could play a critical role in the Presidential election.
  Given this context, Judge Paez's comments look a lot like a judge 
intervening in a hot political controversy. Granted, the forum where 
Judge Paez made these remarks--a lecture series at a law school--may 
insulate them from actually violating Canon 5. And it is possible that 
Judge Paez was just unlucky about the timing of his remarks, and had 
no intention of affecting the California Democratic Party's position 
(although in answer to a question at his hearing about how an 
initiative that tracks the Fourteenth Amendment could be ``anti-civil 
rights'', he said that at the time he was giving his remarks, he 
remembered ``just reading in the papers there was a lot of debate going 
on as to how it should actually be formulated,'' suggesting that 
perhaps he was following that debate). Regardless of his actual 
intention, however, the appearance that a judge is injecting himself 
into politics is exactly what Canon 5(D) is designed to avoid, and that 
is presumably why it is formulated as a flat prohibition.

  When he was asked about these comments at his hearing, Judge Paez 
said ``we shouldn't and I wasn't trying to take a political position. 
We were bound by certain ethics. Nonetheless, as I said a minute ago, 
we are--we have a life outside of our role as a judge as well, and it 
was an--I was trying to address a particular broad issue, and so I made 
those remarks.'' He also said that he regretted having used the 
particular words he did. In written answers to follow up questions, he 
also explained why in his view his remarks did not violate Canon 3A(6) 
(prohibiting judicial comments on the merits of pending cases) and how 
``upon reflection, [he] underst[ood] how [his] reference to the 
proposed initiative could have led some to believe that [he] might have 
a biased view of the constitutionality of Proposition 209.'' He 
continued ``I regret that anyone would have that perception, as I 
assure you that was not

[[Page S2874]]

and is not the case. I am sorry that I may have given anyone such an 
impression by uncritically referring to the proposed initiative in the 
way that I did.''
  I do not think these responses are sufficient. The concerns that have 
been raised about these matters are not esoteric. They are the kind of 
thing that I think we reasonably expect judges to think about before 
they give public remarks. Nor was Judge Paez brand new to the bench 
when he made these remarks: he gave the speech in April 1995, some nine 
months after his appointment. Finally, Judge Paez indicated in response 
to written questions from Senator Ashcroft (1) that since his comments 
only went to the divisive nature of the initiative, he ``hope[d]'' it 
would have been clear to the people of California that he had not 
prejudged the matter but that (2) in any event he would not have 
recused himself from hearing a challenge to Proposition 209 because he 
believes he could have been impartial in the matter since judges often 
have personal opinions on policy questions but are expected to put them 
aside. It seems to me, however, that given that Judge Paez went out of 
his way as a judge to say what he did, it would be perfectly reasonable 
for the people of California not to trust his impartiality and that a 
recusal pledge with respect to cases involving these initiatives was a 
bare minimum indicator of the sincerity of his expressions of regret.
  Despite the central role that the initiative process has played in 
California in correcting judicial excesses, I have supported two prior 
nominees. One was a nominee to a California district court seat who had 
written a piece criticizing the initiative process itself. The other 
was a nominee to the Circuit Court whose pro bono work challenging a 
Washington initiative even before it had been placed on the ballot I 
alluded to earlier. These activities raised some questions about 
whether either of these nominees should be confirmed for judicial 
positions where they would of necessity be passing on the validity of 
initiatives. In each instance, the nominee's explanations persuaded me 
that they should be given the benefit of the doubt. Unfortunately, in 
Judge Paez's case, I find myself unable to do so, and accordingly I 
have serious objections to his elevation to the Ninth Circuit.

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