Judge Edward Chen's testimony before Senate Judiciary Committee

SENATOR SESSIONS: You, in the California Law Review wrote this, quote “Diversity enhances the quality of decision making. In addition to analyzing and applying the law, Judges have to make determination that draw not so much upon legal acumen but on understanding of people and human experiences. Such experiences then form assumptions that affect legal decisions. At trial and evidentiary hearings, judges have access to have to assess credibility of witnesses and witnesses’ testimony may seem more credible if it is consistent with the judge’s knowledge or experience and conversely less credible if he remains outside the judge’s experience. Simply put, a judge’s lifetime experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide. These determinations require a judge to draw upon something that is not found in the case, reports that line the walls of our chambers. Rather, judges draw upon the breadth and depth of their own life experiences upon the knowledge and understanding of people and of human nature and inevitably one’s ethnic and racial background contribute to those life experiences.” Did that statement accurately reflect your judicial philosophy?

EDWARD M. CHEN: Well, let me put that in context if I can, Senator. The point I was trying to make in that Law Review piece was that there was a benefit to having a diverse judiciary that the judgments we make, some of those are based on deductive reasoning and analysis of law and sometimes they’re based on more intuitive analysis, judging the witness credibility, making a decision with respect to bail or sentencing. That requires an understanding of human factors and different…and various contexts. And the point I was trying to make is that the broader the breadth the experience both for an individual judge and collectively as a court, I think the better the ability of judges to make those assessments. And I try to give some illustrations in that piece about how the collegiality amongst judges whether it’s formal exchange amongst the members of the Supreme Court or the Court of Appeal, or the informal exchange that often happens in the District Court, in the hallways, in the dining rooms that we learn from each other about various perspectives, different perspectives in life experiences.

SENATOR. SESSIONS: Well, you know, the average litigant would be nervous if he thought decisions are being made on what you judges talked about in the dining hall or in the hallways. I mean the case should be decided, should it not, on the evidence introduced and the law properly applied to that evidence.

EDWARD M. CHEN: No, and I agree with that fully and I didn’t mean to suggest that cases are decided on the hallways but--

SENATOR SESSIONS: No, I’m just raising this point because it’s something we’ve talked about before. I suppose your experience might help you have insight into a witness’s credibility. Everybody has different experiences and it might but I was a little concerned that you say you might understand the human impact of legal rules upon which a judge must decide. You know the oath says that a judge should do equal justice to the poor and the rich. Soon, you would take that oath and intend to follow that.

EDWARD M. CHEN: Absolutely and I did take that oath when I sworn in as a magistrate judge.

SENATOR SESSIONS: And if you would be impartial--

EDWARD M. CHEN: Absolutely.

SENATOR SESSIONS: I know you served, what, 18 years as counsel for the American Civil Liberty Union.

EDWARD M. CHEN: Sixteen years, actually.

SENATOR SESSIONS: Sixteen, and…now you were on their payroll as a…

EDWARD M. CHEN: As a staff attorney.

SENATOR SESSIONS: Staff attorney. Well, you know, the ACLU has filed some excellent cases. They filed some I’m not comfortable with. My time up? I’m sorry.

SENATOR FRANKEN: You’re right but I was giving you as—

SENATOR SESSIONS: A warning.

SENATOR FRANKEN: I was giving you, In my role as chairman, I was giving you leeway because you’re the distinguished ranking member and I was torn, frankly. But I guess your time is up and I would--

SENATOR SESSIONS: One thing with Senator Franken, he always has a tremendous skill at timing.

SENATOR FRANKEN: Thank you. Senator Feinstein.

SENATOR FEINSTEIN: Thank you very much, Mr. Chairman. I think I know where Senator Sessions is going and let me say this to him. Judge Chen has been a very fair magistrate judge for eight years. I’ve tested this because I also am aware he’s been a fierce advocate prior to that time and I might have some differences of opinion with some of the things and I’m going to raise one in a moment. But nonetheless, he has been examined by a Republican screening committee and by a Democratic screening committee for the position of magistrate judge and everybody has found he is fair. I’d like to just read on this subject one comment because it’s of the Coalition of Northern California Asian American Bar Association’s. And it’s this: He has a made successful transition from a zealous advocate to a balanced and conscientious adjudicator who was committed to the impartial and active administration of justice. Judge Chen has earned a reputation as an even-handed jurist who is constantly mindful of the role that judges fulfill in our society.

SENATOR SESSIONS: Well, I think a person can be a zealous advocate and be a great judge.

SENATOR FEINSTEIN: So, let me ask a question that takes you back away because--

SENATOR SESSIONS: Judge Chen, according to the web site, the ACLU, it believes the death penalty inherently violates the constitutional ban on cruel and unusual punishment and guarantees a due process and equal protection. Do you agree with that?

EDWARD M. CHEN: Well, those views are not the views of the Supreme Court and I abide by the rulings of the Supreme Court and I will tell you that I have one death penalty cases that I handled as a lawyer. In that case, we did not bring a broad challenge, a sweeping challenge. It was very fact specific about the case, the ineffective assistance of counsel that this individual had and mistakes that were made by the trial judge. So, it was a very narrowly focused case and we brought that case to ensure this person had a fair process. It was a not a broad challenge.

SENATOR SESSIONS: Well, great attention is provided on those cases by the courts and that’s legitimate but I guess my question is do you believe that…do you agree with this position of the organization you worked for, for 16 years?

EDWARD M. CHEN: Well, I’ve never…other than that one case, I’ve never been involved in any of the policy making or any of the broader efforts of the ACLU in that issue. And I would affirm again that as a district judge, I see my role very differently today than as an advocate some 15 years ago.

SENATOR FRANKEN: Thank you, Senator, Senator Feinstein. Any more questions? Well, in that case, I’d like to thank Senator Feinstein and the distinct ranking member. I also want to thank each of you for your testimony today. You’re all very impressive and I will hold the hearing open for one week for submission of questions for the nominees and other materials. The hearing is adjourned. Thank you.