Will Bardwell went to Washington and observed confirmation hearing for Justice Graves in the Fifth Circuit; he’s written about it on Twitter, on his blog, and for the Daily Journal. He describes some of the hearing, which was attended by Senators Al Franken, John Cornyn, and Jeff Sessions. Justice Graves was introduced by Mississippi Senators Wicker and Cochran (on his blog, Bardwell says that Wicker used the word “enthusiastic” in endorsing Graves).
The First Amendment issues debated over the last week after a post on Volokh’s blog did not come up.
Bardwell describes the hearing:
And for five minutes after that, Franken mostly treated the nominee to softball questions, such as whether Graves – the first black Mississippian nominated to the Fifth Circuit in that court’s 119-year history – would be able to transition to the federal judiciary from a long career in state court. Graves, a graduate of Millsaps College and the Syracuse University College of Law, spoke quickly through the first few moments of his initial response, but he quickly recovered his typically cool pace.
Sessions was a different story. The committee’s ranking member, himself a casualty of a 1986 confirmation hearing for his failed nomination to the federal bench, quizzed Graves for 10 minutes regarding a post-conviction case named Doss v. State, which Graves and his colleagues twice considered before vacating the man’s death sentence in 2009.
During the Court’s first examination of Doss in late 2008, Graves joined the opinion of then-Presiding Justice Oliver Diaz, who argued that the Constitution’s ban on cruel and unusual punishment forbade capital punishment in any case.
Sessions began by asking whether Graves believed, as Diaz wrote, that the definition of “cruel and unusual punishment” changes with time. He continued by asking whether a court answering that question should rely, even in part, on international law.
Each time, Graves parried by assuring Sessions that, as a member of a lower court, he would bind himself to the decisions of the U.S. Supreme Court. As evidence of that deference, Graves told the stridently pro-death penalty senator that he had voted to affirm capital sentences in no fewer than a dozen cases.
Ultimately, faced directly with the question of whether his view is that the Constitution forbids executions, Graves answered simply, “It is not” – a response that seemed to satisfy the Alabama senator’s questions.
The Clarion Ledger has a straightforward story from the Gannet Washington bureau.