Green working through nomination process

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The nomination of Monroe County District Attorney Michael C. Green for a federal judgeship is on the agenda Thursday for an executive business meeting of the U.S. Senate Committee on the Judiciary.

A committee spokesman said committee rules allow for any first-time agenda items to be held over for one week. That has happened with most, if not all, nominations considered by the 112th Congress since the beginning of the year.

Green has also finished answering written questions submitted to him from two senators following his May 24 nomination hearing.

Sen. Charles E. Grassley of Iowa, ranking Republican member of the committee, and Sen. Thomas A. Coburn, R-Okla., asked several questions, mostly having to do with the Constitution, U.S. Supreme Court, judicial discretion and Green’s testimony at his hearing.

“What is the most important attribute of a judge and do you possess it?” Grassley asked.

“I believe the most important attribute of a judge is to be able to promptly decide cases on the narrow issues presented after making fair and impartial findings of facts, identifying and apply controlling statutory and case law, and applying

that law to the facts of the particular case,” Green responded. “I believe I possess this ability.”
Green goes on to say, in response to another question about judicial temperament, that a judge should treat everyone with dignity and respect, should be firm in managing the docket and courtroom decorum, and make sure all decisions are prompt and just.

Green, who served on the New York State Commission on Sentencing Reform, notes he is familiar with the Federal Sentencing Guidelines from many aspects, including his nearly eight years of service as district attorney working with the U.S. Attorney’s Office on a regular basis.

He said he advocated for mandatory minimum sentences “for those offenders convicted of crimes which threaten the safety of our communities” and that he would only consider departing from Federal Sentencing Guidelines on an individual case basis when warranted by applicable statutory and decisional law.

“In all cases, I would be strongly guided by the provisions of the Federal Sentencing Guidelines and any relevant decisions of the United States Supreme Court and Second Circuit Court of Appeals,” Green wrote.

Grassley asked under what circumstances would Green consider striking down an act of Congress he deems unconstitutional.

“Such a decision would be proper when the judge determines, after careful consideration, that such act exceeds congressional authority as articulated in the Constitution and in relevant Supreme Court precedent,” Green answered.

Coburn asked a lot of questions about the Constitution and specific Supreme Court cases, particularly the Second Amendment protection to keep and bear arms. He asked Green if he agrees that the Constitution is a living document constantly changing as it is interpreted by society?

“No,” Green answered. “While courts may be called on to apply the Constitution to new or different factual scenarios, the only way the Constitution itself changes is by a constitutional amendment.”

Coburn wanted to know if Green believes the right to bear arms is a fundamental right. They both cite McDonald v. Chicago 130 S. Ct. 3020, 3042 (2010), a landmark decision that says the right to keep and bear arms applies to states.

“I have no personal opinions or beliefs that would interfere with my ability to follow the precedent of the Supreme Court on this issue,” Green wrote.

Coburn asks for a lot of opinions to which Green answered repeatedly he would apply the U.S. Supreme Court and Second Circuit Court of Appeals precedents.

Green also notes he would have no difficulty applying the death penalty in certain cases, he would not consider the laws of foreign countries unless specifically required and that empathy should play no role in the decision-making process.

“I believe the laws of the United States should be interpreted by reference to legal sources within the United States,” he says.

Coburn also delves into Green’s May 24 hearing testimony, asking him to further explain decisions not to prosecute in the interest of justice and to review the capital cases he has prosecuted.

“While every case is different and must be considered individually, the analysis involves an examination of the facts of the case in light of the applicable law,” Green wrote, citing three cases in which he moved jointly with defense attorneys to set aside three wrongful convictions after being provided DNA evidence.

“Did your decision involve empathy toward the perpetrator?” Coburn asked.

“No,” Green responded.

Green also notes he was the lead prosecutor on three cases where a notice of intent to seek the death penalty was actually filed. All three were convicted of murder and other charges. One was sentenced to death, which was reduced to life without parole after being set aside by a court ruling that part of the state capital statute was unconstitutional. The other two also received sentences of life without parole.

Green, who was nominated Jan. 26 by President Barack Obama, is one of six people on the agenda Thursday being considered for federal nominations. It is up to the committee to decide whether to forward the nominations to the full Senate for possible confirmation.

Green hopes to have an answer within a month when he must decide whether or not to seek re-election to a third term as district attorney. The Democratic Party is holding a slot open for him, but will have to name its official candidate before the end of July.

Green is being considered for a judgeship in the U.S. District Court for the Western District of New York to eventually replace U.S. District Court Judge David G. Larimer, who assumed senior status in March 2009, but still works full time.