[Congressional Record Volume 170, Number 104 (Thursday, June 20, 2024)]
[Senate]
[Pages S4170-S4171]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Mustafa Taher Kasubhai

  Mr. CORNYN. Mr. President, I have served on the Senate Judiciary 
Committee my entire time in the Senate. As the Presiding Officer knows, 
one of the responsibilities of the Judiciary Committee is to vet and to 
vote on a President's nominees for judicial office.
  These are unique jobs because they last literally a lifetime, so it 
is very, very important that we vet these nominees. In my case, in the 
case of Texas, Senator Cruz and I have appointed a group of the best 
lawyers in the State of Texas on something we call the Federal Judicial 
Evaluation Committee to help us screen the people who want to serve on 
the Federal bench, and so we are then in a position to enter a 
conversation with the White House, whether it is a Republican or a 
Democrat, about whether or not we will vote for and support that 
nominee for the Federal judiciary.
  There is something called the blue slip which is unique to the Senate 
Judiciary Committee where, if a home State Senator does not return a 
blue slip on somebody that the President has nominated, the committee 
will not process that nominee.
  So the Judiciary Committee has a very important role and one I think 
consistent with the responsibilities of vetting and considering these 
lifetime-tenure judges.
  For 13 years, I was a judge myself on the State court bench in Texas, 
so I have some strong views about the qualities that make for a good 
judge. A good judge is not a policymaker wearing a black robe, because 
judges don't stand for election--or at least Federal judges do not.
  So I have been watching very closely President Biden's judicial 
nominees to make sure they meet at least the minimum standard to serve 
on the Federal bench, but I have to say that President Biden's 
unqualified judicial nominees are a problem. Not all of them but some 
of them stand out, and one in particular continues to face big problems 
in this Chamber.
  Earlier this week, the Senate was expected to vote on Judge Mustafa 
Kasubhai, who was nominated to serve on the U.S. District Court for the 
District of Oregon. He was set to receive a vote on Tuesday, but 
Senator Schumer pulled that down. He is the one who sets the schedule 
in the Senate. He pulled that down at the last minute because he 
obviously did not have the votes to confirm this nominee.
  They were expected to push that vote to today because perhaps there 
would be enough Senators that would be absent the day after the 
Juneteenth holiday that it would actually change the outcome and make 
it more likely that he would be confirmed. But then it became obvious 
that this nominee was so controversial that even a poor attendance day 
would not lead to his confirmation. All I have to say to that is, thank 
goodness.
  Our colleagues have delayed Judge Kasubhai's confirmation vote again, 
and I sincerely hope this will mark the end of the road for this 
particular nominee. Given everything we know about the judge, it is 
clear that he is not fit for a lifetime appointment to the Federal 
bench. Maybe there is some other job in government he would be 
qualified to do but not serve as a Federal judge.
  When nominees appear before the Judiciary Committee, of course, they 
are asked about their judicial philosophy. They are asked about their 
ideology, their world views, and how they would operate if confirmed. 
This is basic stuff.
  With Judge Kasubhai, we don't have to wonder how he would function as 
a judge because he has a long record on the bench as a U.S. magistrate, 
and he also previously served as a circuit court judge in Oregon. He 
has been on the bench since 2007, so he has an extensive record that we 
can look to as a way of predicting how he will behave,

[[Page S4171]]

how he will perform the duties if confirmed on the Federal bench. That 
is exactly what we evaluated in the Judiciary Committee, and we quickly 
spotted a number of red flags.
  One of the most critical qualities for a judge is impartiality. Good 
judges are like good referees. They don't pick sides, they don't play 
favorites, and they don't make decisions that are essentially a result-
oriented process. In other words, they start as a blank slate, consider 
the law and evidence, and then make a decision, not the other way 
around.
  Judges should make decisions based solely on the law and the evidence 
presented in a courtroom--that is pretty basic stuff--nothing more, 
nothing less. In recent years, though, we have seen a disturbing trend 
of judicial activism.
  That is entirely appropriate if you are an elected representative 
because the voters get to vote on you, but if you are a lifetime-tenure 
judge, to basically usurp the role of the political branches and to 
make policy yourself is an abuse of that power. That happens when 
judges inject their personal beliefs and biases in their decision-
making process, and unfortunately this nominee has a record of doing 
that.
  Throughout his career, he has repeatedly shown that he has an agenda, 
and I question his ability to give litigants a fair shake. That is the 
most basic responsibility of a judge. If you are someone, let's say, 
charged with a crime or maybe a civil litigant or maybe just any other 
one of a number of different types of cases, you want to be able to 
walk into the courtroom knowing that the judge has not already decided 
the case against you.
  So when the judge, for example, requires all the people in his 
courtroom to announce their preferred pronouns as part of the process, 
I think you begin to question, can this judge actually be fair and 
treat everybody the same?
  Look, we live in a diverse country, and some people find that sort of 
question appropriate and others do not, which is fine. Everybody is 
entitled to their own beliefs. But I believe it is completely 
inappropriate to have a Federal judge who will effectively require this 
sort of proclamation by ordinary litigants or chill anyone who may have 
a religious or other objection from claiming a pronoun.
  Imagine this same protocol but with a different question. What if a 
judge told the parties they had to declare their religious affiliation 
before the judge would hear the case? Imagine lawyers, litigants, and 
witnesses being told to announce before an entire courtroom if they 
identify as a Christian, a Muslim, a Jewish person, an atheist, or some 
other religion. We wouldn't tolerate that sort of outcome or question 
in a courtroom. Would that be viewed as an act of inclusion or would it 
be condemned as religious discrimination?
  Our court system is and should remain blind to who you are, where you 
come from, how rich you are, or whom you represent. Everyone is 
entitled to a fair shake, no matter what. That is the minimum required 
under our Constitution. In order for that to happen, judges have to set 
aside their personal beliefs and apply the law as written. Judge 
Kasubhai has proven that he cannot and will not do that.
  I am afraid the judge's woke courtroom policies won't end there. 
Clearly, his own liberal bias has infiltrated his ability to make 
rational decisions on the evidence.
  Consider this: In an interview a few years ago, Judge Kasubhai said:

       We have to set aside conventional ideas of proof when we 
     are dealing with the interpersonal work of equity, diversity, 
     and inclusion.

  Now, the standard of proof and what qualifies as evidence are things 
you learn about in law school that are applied to every single case. 
But now for the judge to say that we need to set aside those 
conventional ideas of proof when we are dealing with equity, diversity, 
and inclusion sends a very troubling signal. What I take that to mean 
is that he will disregard the facts, the law, and the applicable legal 
standard to get the results he wants.
  Making matters worse, he later referred to diversity, equity, and 
inclusion as ``the heart and soul of the court system.'' I would argue 
that the ``heart and soul'' of our court system is the pursuit of 
justice and equal treatment under the law, not pursuit of diversity for 
its own sake.
  I can't imagine anything more terrifying to a litigant than to walk 
into a courtroom where the judge has already put his finger on the 
scales of justice--a judge with an agenda.
  Of course, judges are duty-bound by their oath to operate without 
fear or favor. They must base their decisions on the law, the evidence, 
and the facts before them, period. Based on Judge Kasubhai's history on 
the bench, I have no confidence that he will do that. He has a record 
of judicial activism. He has made it abundantly clear he is willing to 
set aside the facts and the law when considering some cases. He has 
proven that he values his own ideology more than he does his commitment 
to the rule of law or the evidence that is presented in court, and he 
has proven that he can't prevent his personal views from bleeding into 
his decisions as a judge.
  Judge Kasubhai is not qualified for a lifetime appointment to the 
Federal bench. I know this, and I believe my Democratic colleagues know 
this too, which is why this vote had to be rescheduled a couple of 
times because Senator Schumer, who sets the agenda, wonders whether or 
not even enough Democrats will vote for the nomination to get him 
confirmed. The fact that Democratic leadership can't rally the votes 
among their own Members says everything you need to know about this 
nominee.
  The American people, no matter where they live, deserve to have fair 
and unbiased judges on the bench, and they certainly deserve better 
than this nominee.
  I believe the majority of Senators oppose this nomination, and I hope 
this marks the end of the road for this unqualified nominee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.

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