Executive Session

Floor Speech

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Mr. GRASSLEY. Today, the Senate will consider the nomination of Michael Simon, nominated to be a U.S. district judge for the District of Oregon. This nominee was reported out of Judiciary Committee with four votes in opposition. I am one of those who opposed the nominee and would like to detail my reasons for doing so.

Mr. Simon received his B.A. summa cum laude from the University of California, Los Angeles, in 1978, and J.D. cum laude from Harvard Law School in 1981. He began his legal career as a trial attorney with the Antitrust Division of the Justice Department.

In 1985, he spent 6 months as special assistant U.S. attorney for the Eastern District of Virginia and argued one appeal before the Fourth Circuit. Mr. Simon joined a large law firm as an associate in 1986. Since 1990, he has been a partner and the head of litigation for the firm's Portland office.

Throughout his career, Mr. Simon has advocated on behalf of the American Civil Liberties Union of Oregon as a pro bono attorney. But his involvement in the ACLU goes beyond mere representation of a client. Mr. Simon has been a member of the ACLU of Oregon since 1986. He is an active member of their Lawyers' Committee and served as a board member from 1997 to the year 2004, the vice president for legislation 1997 to 1998, and vice president for litigation from 2000 to 2004.

I recognize that judicial nominees should not be evaluated solely on client lists or memberships, that would be very unfair. However, these are relevant bits of information about a nominee.

Listen to the words of one of my Democratic colleagues, who inferred that the ACLU is beyond a moderate and mainstream approach. This was stated during the debate on judges nominated by President Bush:

If you look at the records of these judges and you put scales, left to right, 10 being the most liberal and 1 being the most conservative, these judges are ``ones'', to be charitable. When Bill Clinton nominated judges, he nominated mainly sixes and sevens, people who tended to be a little more liberal, but were moderate and mainstream--very few legal aid lawyers or ACLU charter members, much more prosecutors and partners in law firms.

My colleague recognized that ACLU lawyers were beyond moderate and mainstream. I would complete his analysis and rank this organization as very liberal.

In Mr. Simon's case, there has been concern about whether or not he shares the far out views of the ACUL. On this question, Mr. Simon refuses to provide a clear answer. At his hearing he stated that ``we do not necessarily agree with all of the positions taken by the American Civil Liberties Union.'' When asked in follow-up questions to describe the legal or policy position with which he disagrees, he argued that his advice to the ACLU was confidential and subject to the attorney-client privilege. In a second round of questions, committee members clarified they were not asking about advice to a client, but policy positions with which he disagreed. This was met with ``I am not at liberty to describe the legal or policy positions advocated by the ACLU with which I disagree.''

The ACLU does hold very liberal views, and Mr. Simon has been the voice for those views. For example, Mr. Simon wrote a letter to the Tillamook County Courthouse in Oregon expressing the ACLU's concern with religious Christmas signs and decorations. The letter encouraged the county to repeal its resolution that deemed the county a ``Merry Christmas County.''

On issue after issue, Mr. Simon refused to disassociate himself from legal and policy positions held by the ACLU, that are far outside the mainstream. This includes the legalization of drugs, the unconstitutionality of the death penalty, the unconstitutionality of the Pledge of Allegiance, the ACLU's opposition to tax exemptions for churches and extreme views regarding separation of church and state.

Mr. Simon's views on the war on terrorism and a liberal view on civil liberties are troubling to me. In a speech in 2007, Mr. Simon argued that Americans' civil liberties have been threatened because of measures undertaken following 9/11. In his speech, he said that ``our thinking would be clearer and our solutions more effective if we stop thinking about--and stop calling--terrorism a `war' or a `crime,' '' and argued that calling military action against terrorism a ``war'' ``implies that a military conquest is the best tool for this fight'' and that terminology ``may limit more creative and even more successful techniques to promote and protect our security.''

Perhaps Mr. Simon agrees with the Attorney General who, in a recent speech, asserted that ``our most effective terror-fighting weapon'' is our article III [civil] court system. I certainly disagree with that assertion, and I think most national security experts, our military, and most Americans would disagree as well.

Mr. Simon appears to approach constitutional theory with an activist slant. In remarks before a conference sponsored by the Oregon Lawyers Chapter of the American Constitution Society on May 23, 2007, Mr. Simon stated:

There is also support for the conclusion that the Founders did not believe that their intentions and understanding should bind future generations. That may be the only real `original intent' of the Founders.

That quotation makes me wonder, if the Constitution wasn't going to have any hold on future generations, why did the drafters spend so much time during that summer of 1787--and even longer periods of time--getting the Constitution adopted. That seems to be the implication of what he says there.

It is no surprise, then, that Mr. Simon has a hostile view of religion in the public square. He continued in those remarks, ``There is also support for the proposition that the concept of `separation of church and state' was an `unfolding and evolving' idea at the time of the Founders. .....''

Mr. Simon appears to demand an absolute wall of separation between church and state, as opposed to the U.S. Government promoting a specific religion. He has argued against religious displays on public land, against religious visitors to schools, against a coach praying with his football players. I assume that means even if you're praying that they don't get injured. Mr. Simon has argued that it is unconstitutional under the establishment clause to teach intelligent design in public school science classes.

Based on his views regarding the war on terror, his activist approach to constitutional interpretation, his hostility to religion in the public square, and his remarks and advocacy of ideas which indicate a legal view that is outside the mainstream, I will oppose this nomination. I ask my colleagues to do likewise.

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