Executive Session
Floor Speech
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Ms. HIRONO. Mr. President, I thank my friend, the Senator from Florida, for speaking out on the critical importance of the Affordable Care Act for millions of people in our country and for calling upon this administration to support healthcare for all instead of what they are doing to the healthcare of millions of people in our country.
Turning to another matter, nearly 12 years ago, on December 7, 2006, President George W. Bush nominated Thomas Farr to be a U.S. District Court Judge for the Eastern District of North Carolina. Today, 12 years and three nominations later, his name is again before us for confirmation to the very same vacancy, which has remained unfilled all this time.
When Mr. Farr was nominated for this vacancy in 2006 and 2007, his nomination did not receive a vote in the Judiciary Committee. It was known at that time that Mr. Farr had spent his professional life engaged in restricting minority voting rights and defending companies alleged to have discriminated against African Americans, women, and others.
In the 1980s and in 1990, Mr. Farr represented Senator Jesse Helms, notorious for his opposition to civil rights, voting rights, women's rights, workers' rights, and LGBTQ rights--in other words, individual rights.
Mr. Farr also helped corporations fight off their employees' discrimination claims. In 2003, Mr. Farr defended Blue Cross Blue Shield of North Carolina against claims by a female employee who alleged that the company had compelled her to resign because of her sex and age. To win this case, Mr. Farr convinced the North Carolina Supreme Court to strike down the county's antidiscrimination law.
Given this history of restricting minority voting rights and defending companies in discrimination claims, Mr. Farr's nomination did not proceed at that time, and rightly so.
In the 12 years since his first nomination, Mr. Farr has become notorious for his defense of the North Carolina legislature's attempts to disenfranchise African-American voters.
His current nomination is opposed by nearly every civil rights group in North Carolina and nationally, and the Congressional Black Caucus, or the CBC, has fought Mr. Farr's nomination.
In a 2017 letter to the Judiciary Committee, the CBC wrote: ``It is no exaggeration to say that had the White House deliberately sought to identify an attorney in North Carolina with a more hostile record on African-American voting rights and workers' rights than Thomas Farr, it could hardly have done so.''
This district court vacancy was not filled by President Obama in his two terms, but not for lack of trying. President Obama nominated two different African-American women for this vacancy, one an assistant U.S. Attorney and another a State court judge. Neither nomination moved forward because the Republican home State Senators withheld their blue slips. Judiciary Committee Chairman Leahy and, later, Chairman Grassley both, at that time, abided by the blue-slip process during that period, as I said, and no hearings were ever held for these two Obama nominees.
At the same time, both of my colleagues from North Carolina persisted in their desire to confirm Mr. Farr to the Federal bench. Of course, now, the return of a blue slip is no longer a barrier to pushing nominees through the Judiciary Committee.
So, on the recommendation of my Senate colleagues from North Carolina, Donald Trump nominated Mr. Farr yet again to the seat that had been kept open in the Eastern District of North Carolina. In fact, when Mr. Farr's nomination was returned at the end of a session of Congress last year, the White House decided to renominate him this year.
The history regarding this judicial vacancy and Mr. Farr is key to understanding why I and so many of my colleagues will vote no. We will be accused of obstruction and wanting to deprive the people of North Carolina of a judge in the Eastern District. We will hear how this is the longest open vacancy on the entire Federal bench, but, in fact, this vacancy has remained open so long because of Republicans' refusal to confirm qualified minority women and their insistence on filling this vacancy with a man whose career is filled with examples of his using the law to advance a racist, obstructionist, plainly un-American agenda.
Had the Republicans not blocked the nominations of qualified minority women in 2013 and 2016, this district, which is about 27 percent African American, would have had its first African-American judge.
By contrast Mr. Farr has spent decades opposing the rights of African Americans, women, and workers. Let me highlight a few examples.
When Mr. Farr was working as legal counsel for the 1990 campaign for Senator Jesse Helms of North Carolina, the Justice Department filed a Federal lawsuit against the campaign for trying to intimidate thousands of African Americans from voting. How did they do this? The Helms campaign staff sent postcards suggesting that the voters were ineligible to vote and warning that they could be prosecuted if they voted. Although Mr. Farr denied any involvement in these racist voter intimidation efforts, the Justice Department attorney who investigated the matter confirmed that Mr. Farr ``was certainly involved in the scheme as it was being developed.''
That is not the only time Mr. Farr has opposed the rights of African- American voters. When the North Carolina legislature decided to restrict or dilute the votes of African Americans over the past 10 years, Mr. Farr fiercely defended these efforts as a private attorney.
In 2013, for example, he defended the North Carolina legislature's voter suppression efforts that a court found were enacted with racially discriminatory intent--racially discriminatory intent. In other words, the North Carolina legislature was totally upfront about what they were up to.
After the Supreme Court effectively struck down the part of the Voting Rights Act that required North Carolina to preclear any changes to their voting laws, the North Carolina State legislature passed a law that eliminated or cut back on voter mechanisms that African Americans disproportionately used. This is the law that Mr. Farr defended. The Fourth Circuit in that case determined that these voting changes ``target[ed] African Americans with almost surgical precision.'' In other words, blatantly discriminatory intent was found by the Fourth Circuit.
Between his efforts to support suppression of voters, Mr. Farr has helped companies avoid accountability for discrimination against African Americans, women, and minority groups. In 2003, Mr. Farr argued that female employees at Pfizer were not protected under Federal civil rights law from condescending, sexist, and sexual comments from their manager because they were not ``severe'' or ``pervasive'' enough.
He even tried to undermine the plaintiff's claim by arguing that she failed to point out that her manager ``harassed her because of her gender on a daily or weekly basis.'' That was the standard he applied: You have to have been harassed on a daily or weekly basis. Mr. Farr ultimately convinced the court to dismiss the employee's claim as untimely.
A person who has devoted decades of his legal career to furthering oppression and injustices against minorities and women has no business being confirmed to a lifetime position as a judge, where his ideological agenda will certainly be reflected in his decision.
I will not vote for Mr. Farr's nomination, and I urge my colleagues to do likewise. Nomination of Jonathan Kobes
Mr. President, I would also like to explain my opposition to another nominee being considered this week: Jonathan Kobes for the Eighth Circuit Court of Appeals from South Dakota.
Mr. Kobes received a ``not qualified'' vote from a substantial majority of the ABA's Standing Committee on the Federal Judiciary. They reported that Kobes has ``neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge.''
They continued, saying: ``The Standing Committee had difficulty analyzing Mr. Kobes' professional competence because he was unable to provide sufficient writing samples of the caliber required to satisfy Committee members that he was capable of doing the work of a United States Circuit Court judge''; hence, their ``not qualified'' vote for him.
In normal times, this sort of negative evaluation from the ABA would be given to the White House before the White House decided to nominate someone, and the person would never be nominated. But these are not normal times.
Instead of following normal procedure, the White House has nominated someone not fit to serve for a lifetime on the circuit court, but nevertheless will be confirmed on a party-line vote.
Mr. Kobes has demonstrated a hostility toward women's reproductive rights. His anti-choice activism is on par with so many other Trump nominees who are relatively young, as he is, and profoundly inexperienced.
In 2005, Mr. Kobes represented, as a volunteer, so-called crisis pregnancy centers, which were seeking to uphold the South Dakota law requiring doctors to inform women seeking abortions that ``the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota.'' That is not the state of the law, by the way.
Mr. Farr and Mr. Kobes are two of the worst of President Trump's judicial nominees, and that is saying a lot. They are two more examples of President Trump's relentless pursuit to pack the Federal courts with ideologues who will rule in favor of conservative causes. Clearly, Donald Trump does not believe in the independent judiciary envisioned by the Framers of our Constitution and respected by every President until now.
We see in his single-minded efforts to pack the courts that he is nominating judges who he believes will be his political allies. He tells us as much. He believes the judges he appoints are ``Trump judges'' and that they will be loyal to him, protect him and his policies when the time comes.
Chief Justice John Roberts could not have been clearer in his response last week to Donald Trump's criticism of judges who don't rule his way. The Chief Justice told the AP:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their very best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
The independence of the judiciary is not something Donald Trump acknowledges, values, or even believes in. What he wants are Trump judges who will rule in favor of his policies and decisions and who will satisfy his ideologically conservative base. It is no wonder that Chief Justice Roberts felt it necessary to take the extraordinary step of reminding the President and the country that the judiciary must be independent.
I urge my colleagues to vote against the nomination of Mr. Farr and Mr. Kobes.
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