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Floor Speech

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Mr. DURBIN. I am going to ask for the Senate to take action to condemn that conduct. Seems pretty straightforward, doesn't it? Turns out, it would be the first time in the history of the Senate that we do something like this.

We asked the Congressional Research Service: Is there any Senate precedent for what the Senator from Tennessee is doing? They responded: There is no Senate precedent for either introducing or passing a Senate resolution condemning a judge's illegal misconduct.

What? Out of thousands of judges in the United States at the Federal level, surely in history, someone has done something wrong that should be condemned, but it has never been done.

Well, it gets down to some basic elements of constitutional law. You start with this, the Constitution of the United States. And the Constitution of the United States says in article I, section 2, the House of Representatives shall have the ``sole power of impeachment''-- removal from office. The sole power of impeachment is in the House of Representatives, not the Senate.

So why is that stopping us from this condemnation? Well, let me explain. Under the Constitution, Congress does not respond to judicial misconduct in the form of a Senate resolution. It never has.

It is the responsibility of the House of Representatives, specifically the House Judiciary Committee, to investigate the allegations of misconduct and consider the next steps, including impeachment.

But here is the critical element: Who is the jury? Where is the trial? It is right here. After someone has been impeached in the House of Representatives, for example a President, the case comes to the Senate for trial. I have sat through at least three of those, maybe more. So we are juries; the U.S. Senate is a jury.

What this Constitution, again, tells us when it comes to the role of the Senate: The Senate shall have the sole power to try all impeachments. No question about that. If the House impeaches, it is our job to decide whether we agree or not. It takes an extraordinary vote to impeach.

And, also, let me be clear, this is critical:

When sitting for that Purpose, they shall be on Oath or Affirmation.

That is a pretty high standard, isn't it? You have to swear that what you are doing is constitutional or to the best of your ability. So it is an awesome responsibility. We sit like juries in criminal courts and civil courts across the United States, and we make bottom-line decisions as to whether the House impeachment shall be sustained.

So the action starts in the House. If they vote to impeach, it comes to the Senate. The Senate sits as a jury and decides whether or not the impeachment goes through. That is why this resolution needs to be defeated.

Senators serve as jurors in impeachment matters. Passing this resolution--passing this resolution, calling on the Senate to condemn this judge before there has been any effort at impeachment in the House of Representatives--is going to do what they call ``taint the jury.''

He would have already taken a position on the case as to who is right and who is wrong. You can't do that. Voir dire in the courtroom is the judge asking the basic question of potential jurors: Do you have any prejudice against this case that stops you from finding the truth?

And people say: I don't. I have an open mind, and I will listen to the evidence and the law.

Well, what the Senator from Tennessee wants us to do is to taint the jury, to get us on record before the House has any impeachment activity, before we sit as a jury as to how we are going to rule. That is why it has never been tried before on the floor of the U.S. Senate.

I also note the resolution contains multiple material inconsistencies on what the Eleventh Circuit found during its investigation of Judge Ross' misconduct. This underscores that the Senate has not engaged, prior to the election of this resolution, in its own investigation or factfinding. The only factfinding we have is from one Senator in Tennessee.

According to the Congressional Research Service, there is no precedent for the Senate adopting a resolution condemning alleged judicial misconduct. The Senate has never done this before. We should not establish a new precedent here, especially when it could taint the jury pool if the Senate later considers articles of impeachment, if that ever happens. It could also open the door to Senate resolutions about other instances of judicial misconduct.

We must have the highest standards for Federal judges, and the alleged conduct in this case is inappropriate, unacceptable, perhaps even indefensible. But the Constitution is clear. It is a matter for the House to consider at this point rather than the Senate.

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Mr. DURBIN. Mr. President, we are not judging by this action of objecting the conduct of this judge. That is not for us to judge. Under the Constitution, it is clear. That will be a decision by the House of Representatives and maybe ultimately by the Senate.

There is a reason why this has never been done on the floor of the U.S. Senate, and the Senator from Tennessee ignores that reality. It has never been done because it would taint the jury pool if there was ever an impeachment action against this judge.

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