Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, later we will be voting on a judge for the Eastern District of Missouri. I come to the Senate floor today to explain why, regrettably, I am unable to support the nominee.

As my colleagues know, Justice Ronnie White was originally nominated by President Clinton during the 105th Congress. This body voted on and rejected his nomination in 1999. After careful consideration of his record, I voted against Justice White's nomination at that time. Since 1999, Justice White completed a term as chief justice of the Missouri Supreme Court and has returned to private practice. So today I would like to revisit a few aspects of Justice White's legal and judicial career that first led me to vote against his nomination. I will also discuss developments since 1999. Unfortunately, his record since that time has only reinforced my concerns.

First, I begin with some troubling aspects of Justice White's record during his days on the Missouri Supreme Court in the 1990s. I only need to point to a few cases to illustrate my concerns.

In the 1998 Johnson case, Justice White was the sole dissenter on the State's high court. It was a capital appeal case involving a claim of ineffective assistance of counsel. The case was heartbreaking. The defendant shot four people to death--three Missouri sheriffs and one of the sheriffs' wives. The facts were stark and very clear-cut. This was not a close case.

The defendant was convicted based upon the overwhelming evidence of his guilt. Justice White conceded there was more than sufficient evidence to sustain the conviction on appeal, but he went out of his way to create a standard that was not based on Missouri law when he evaluated the conduct of the defense attorney. Unsurprisingly, not a single member of the State court agreed with Justice White's dissenting opinion. That is because it was obvious there was no reasonable probability that anything the defense attorney did would have

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changed the outcome of the trial. That is the applicable legal standard. It is straightforward--very straightforward. In that case, every member of the State supreme court applied it correctly, except Justice White.
Unfortunately, Justice White's dissent in that case was not an isolated example. On a number of other occasions throughout his judicial career, Justice White misapplied standards of review or considered issues that were not germane to the law when he was deciding cases. Justice White has even admitted as much. Discussing his judicial philosophy, he said in 2005 that he thinks it is appropriate for judges to let their opinions be ``shaped by their own life experiences.'' I think the personal characteristics of any judge--what this nominee calls his ``own life experiences''--should play absolutely no role whatsoever in the process of judicial decisionmaking. I know my colleagues on our Judiciary Committee share that view as well.

Let me get back to the nominee's judicial track record. Justice White was the sole dissenter in another case that the Missouri Supreme Court decided in 1997. That case raised the question of whether the defendant was entitled to an additional evidentiary hearing. In his dissent, joined by none of his colleagues, Justice White again ignored a straightforward standard of review and wrote that the defendant should have the hearing because Justice White thought it would cause ``little harm.'' Here again we see Justice White's personal preferences creeping into what should be objective, law-based decisionmaking--something pretty elementary to being a judge at any level, Federal or State, in our system of jurisprudence.

Those are just two examples of what led me, after consideration of the nominee's record as a whole, to vote against his nomination in 1999.

Unfortunately, my concerns about Justice White's first nomination have only been reaffirmed by his subsequent record. For instance, I am troubled by Justice White's concurrence in the Eighth Amendment case of Roper v. Simmons. That case was first heard by the Missouri Supreme Court, was appealed to the Supreme Court, and was eventually affirmed. But the affirmance is not what my colleagues should focus on. What should concern my colleagues is the opinion that Justice White concurred in, which ignored binding Supreme Court precedent. That precedent was the Stanford v. Kentucky case. I will explain.

In 2003, when Justice White's court decided Roper, binding Supreme Court precedent at that time permitted applying the death penalty to individuals if they committed their crimes when they were under 18. Nonetheless, Justice White concurred in the State court opinion that simply ignored that precedent. Justice White concurred even though the Supreme Court had reaffirmed the Stanford principle twice in 2002, the year before Justice White's state court decision.

Moreover, in 2003 the Supreme Court rejected an appeal raising legal arguments that were identical to the ones Justice White endorsed. That is the very same year Justice White's court ruled in Roper and ignored Stanford outright.

My colleagues on our Judiciary Committee often ask nominees about their commitment to Supreme Court precedent and their faithfulness to the doctrine of stare decisis. Nominees who appear before us routinely repeat the mantra that they will unfailingly apply precedent and nothing else--in other words, leave out personal views. Justice White did as much at his hearing as well. But--and this is what I find so troubling--when I asked him about the Stanford case, he admitted that Stanford was, in fact, binding on his state court at the time he concurred in Roper. What he did not explain--what he could not explain--was why he ignored that binding precedent as a State supreme court justice. He could not explain why he thought it was appropriate for him to concur in a State court opinion that, in effect, overruled U.S. Supreme Court precedent.

I do not doubt that Justice White has always done what he thought was right and that he ruled the way he thought best to achieve justice for the litigants before him. But in my view that is not an appropriate role for a Federal district judge. Judicial decisionmaking requires a disinterested and objective approach that never takes into account the judge's life experiences or policy preferences. From the careful look I have taken at Justice White's 13-year track record as a judge, I have too many questions about his ability to keep his personal considerations separate from his judicial opinions.

Finally, it is worth noting that there continues to be opposition to this nominee from law enforcement.

Specifically, both the National Sheriffs' Association and the Missouri Sheriffs' Association oppose this nominee.

I always try to give judicial nominees the benefit of doubt when I have questions about their records, but in this nominee's case, I simply can't ignore so many indications that the nominee isn't the right person to occupy a lifetime appointment to the Federal bench.

I sincerely hope I am wrong about Justice White, and I reluctantly vote no on the nominee.

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