Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - September 17, 2009)

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Mr. SCHUMER. Mr. President, first, I thank our chairman and leader, Senator Leahy, for not just moving this very qualified nominee forward but for his diligence and steadfastness and patience as we try to move judges to the floor. Senator Leahy, as everyone in this Chamber knows, is a very fairminded person. He always goes out of his way to allow people to have their time to speak. We had this in the Judiciary Committee this morning. He has done an amazing job trying to move our judges through. I hope those on the other side of the aisle will hear his heartfelt plea that we stop all these dilatory tactics.

Having said that, today is a very good day because I am so pleased to rise in favor of the nomination of the first appointment by President Obama to a Federal appellate court that this body will consider. If Judge Gerard Lynch is any indication of the quality and temperament and intellectual firepower of judges whom President Obama intends to nominate, then my friends on both sides of the aisle should have reason to rejoice today.

As Chairman Leahy has already noted, Judge Lynch was referred out of committee by a unanimous voice vote. Even my friend and colleague Ranking Member Sessions was able to support Judge Lynch despite having opposed his nomination to the district court bench in 2000.

Judge Lynch, who currently sits as a U.S. district judge in the Southern District of New York, comes to us today for confirmation much as he did in 2000 for his first confirmation: with an unimpeachable record of moderation, consistency, intelligence, and dedication to exploring all facets of complex legal questions. But since then, he has amassed an impressive record of moderation and thoroughness. In his 9 years on the bench, he has issued nearly 800 opinions, has tried nearly 90 cases to verdict, and has been overturned by the Second Circuit only 12 times--and one of those times, the Second Circuit was, in turn, reversed by the U.S. Supreme Court.

There should not be any doubt that Judge Lynch is not an ideologue. His opinions and his writings show moderation and thoughtfulness. He is pragmatic. His peers and those who practice before him have found him to be both probing and courteous--in sum, very judicial in his temperament.

In response to questions before the Senate Judiciary Committee in 2000, Judge Lynch said:

A judge who comes to the bench with an agenda, or a set of social problems he or she would like to solve, is in the wrong business.

As his record has shown, Judge Lynch is in the right business.

I have said many times that my criteria for selecting good judges are three: excellence--they should be top of the line legally; moderation--judges should not be too far right or too far left; and diversity.

As is somewhat known, despite the fact that President Bush and I clashed on Supreme Court nominees and some of these circuit court nominees, within New York and within the Second Circuit we had a very amiable arrangement where he would nominate two and then we would get--Senator Clinton and I would get to nominate one. We each had veto power on the other.

I am proud to say that Judge Lynch was one of my first choices to put on the district court bench. It was because of the recommendations of his peers, the lawyers with whom he practiced, and just how good the general legal community thought he was.

That stands true today. He still, more than ever before, meets the qualifications of excellence, moderation, and diversity.

There is no question of his excellence. He was first in both his classes at Columbia, undergraduate and law school--first, not even second or third. Pretty good. His opinions are scholarly, and one that was overturned by the Second Circuit was lauded by the panel as ``a valiant effort by a conscientious district judge.''

There is also no question that Judge Lynch is, in fact, a moderate. His impressively low reversal rate should give the lie to any argument that he is outside the legal mainstream.

Now, the rap on Judge Lynch in 2000 among those 36 who voted against him was that he would be an ``activist.'' This view rose from out-of-context outtakes from two law review articles he had written. I repeat now what I said then: In both of these articles, then-Professor Lynch expressed the moderate view that the Constitution cannot as a practical matter remain frozen in the 18th century--the Constitution should not be expanded but it must be interpreted.

To illustrate my point about why Judge Lynch should be accepted as a paragon of moderation, I want to read two quotes.

First:

Text is the definitive expression of what was legislated.

Second:

A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.

The second quote was written by Associate Justice Antonin Scalia. The first quote was from our nominee, Judge Lynch.

So the entirety of Judge Lynch's copious opinions and rulings bears out the conclusion that he does not intend to legislate from the bench. He has been the definition of law enforcing and justice seeking. He has ruled for the State against prisoners, but he has also ruled that the State must protect the due process rights of those it seeks to detain. He has sentenced defendants convicted of horrible crimes to life without parole, and he has also expressed concern when he thinks a sentence might be too long--while imposing the sentence in complete accordance with the law. He has issued complex and scholarly opinions in securities and antitrust cases. Judge Lynch imposed the sentence that was required by law.

In sum, Judge Lynch is excellent, and he represents moderation.

Now let me say a word about diversity. Judge Lynch obviously is not a nominee who fits this bill. But I want to note another kind of diversity that I believe deserves mention. Before he went on the bench, Judge Lynch sought out opportunities to be more than a smart professor living in an ivory tower. He spent 5 years in the U.S. Attorney's Office in the Southern District of New York as Chief of the appellate section and Chief of the Criminal Division. He worked as counsel to a prominent law firm. He took numerous pro bono cases. In short, he lived the life of a real lawyer while teaching and writing. Driven by his own conscience, he even registered for the draft during the Vietnam war rather than seek a college deferment. Very few do that. This is someone who has sought out a diversity of experiences which he now brings to the table as a judge.

I look forward to this new chapter in Judge Lynch's service to our country. I hope he will get a unanimous vote, or close to it, from the Members of this Chamber.

Mr. President, I yield the floor.

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