[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1986-S1988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



   NOMINATION OF JEREMY D. FOGEL, OF CALIFORNIA, TO BE UNITED STATES 
         DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. The clerk will report the nomination.
  The assistant legislative clerk read the nomination of Jeremy D. 
Fogel, of California, to be United States District Judge for the 
Northern District of California.
  Mr. LEAHY. What is the parliamentary situation?
  The PRESIDING OFFICER. There will be 10 minutes of debate evenly 
divided.
  Mr. LEAHY. Mr. President, today there are 82 vacancies among the 
Federal judiciary. We can see another 15 vacancies on the horizon. If 
we confirm Jeremy Fogel to the U.S. District Court for the Northern 
District of California in a vote this evening, then we will have 
confirmed 11 judges so far this year. That is less than four a month. 
When you know that you have close to 100 vacancies, 4 a month doesn't 
cut it. The President spoke to this issue; the Chief Justice spoke to 
it. The Senate can do a better job.
  At the end of last year the Senate was confirming on average three 
judges a week. In response to the plea by the Chief Justice in the 1997 
Year End Report, the Senate can and should do better this year.
  Some still resist acknowledging the judicial vacancies crisis and 
contend that there are plenty of Federal Judges to handle the work of 
the courts and criticize the Judges for expanding their own 
jurisdiction. That is certainly not the case among the Federal Judges I 
know or the Federal Courts with which I am familiar.
  We should not perpetuate circumstances that require Chief Judges to 
impose so heavily on senior judges and visiting judges. That is why I 
introduced the judgeship bill recommended by the Judicial Conference 
that calls for creating 55 additional judges. Moreover, it appears to 
me that it is the Congress of the United States that has been expanding 
Federal Court jurisdiction and role--and may do so again if the 
Republican leadership has its way and passes its version of the 
juvenile crime bill and its takings bill.
  There is a need--in a growing number of cases, the desperate need--to 
fill the almost 100 vacancies that continue to plague the federal 
justice system. The President has spoken to the issue both last 
September and in his most recent State of the Union. The Chief Justice 
spoke to the matter again in the 1997 Year End Report. I have spoken 
until I am blue in the face. The Senate can do a better job to fulfill 
its constitutional responsibility and to support the third co-equal 
branch of our government.
  As the Chief Justice has pointed out, confirmations are taking longer 
and longer to the detriment of greater numbers of Americans and the 
national cause of prompt justice. I fear that the current delays will 
persist until each of you, concerned judges from around the country, 
begins to express outrage at the slowdown on judicial confirmations. 
Rather than have the Senate persist in efforts to micro manage the 
judiciary and attack its independence and integrity, I am seeking to 
have the Senate get on about the business of confirming judges and 
provided the resources courts need.
  Today 7 judicial nominees are listed on the Senate calendar. Unlike 
earlier days in the Senate when nominees were not made to wait for 
weeks and months on the Senate calendar before they could be 
considered, that is now becoming the rule.
  I calculate that the average number of days for those few lucky 
nominees who are finally confirmed is continuing to escalate. In 1994 
and 1995 judicial nominees took on average 86 or 87 days from 
nomination to confirmation. In 1996, that number rose to a record 183 
days on average. Last year, that number rose dramatically yet again. 
From initial nomination to confirmation, the average time it took for 
Senate action on the 36 judges confirmed in 1997 was 206 days.
  During the entire four years of the Bush Administration there were 
only three judicial nominations that were pending before the Senate for 
as long as 9 months before being confirmed and none took as long as a 
year. In 1997 alone there were 10 judicial nominations that took more 
than 9 months before a final favorably vote and 9 of those 10 extended 
over a year to a year and one-half. Of the 10 judges confirmed so far 
this year, Margaret Morrow took 21 months, Ann Aiken took 26 months, 
and Hilda Tagle took 31 months.
  Last year the President sent us 79 judicial nominations but the 
Senate

[[Page S1987]]

completed action on fewer than half of them. The percentage of judicial 
nominees confirmed over the course of last year was lower than for any 
Congress over the last three decades and, possibly, at any time in our 
history. Left pending were 42 judicial nominees, including 11 who were 
first nominated in 1995 and 1996, and 21 to fill judicial emergencies. 
Still pending before the Senate are 6 nominees first nominated in 1995 
and 3 more first nominated in 1996.
  Unfortunately, over the last three years, the Senate has barely 
matched the one-year total of judges confirmed in 1994 when we were on 
course to end the vacancy gap. We have less than 70 working days left 
in this Congress. The Senate has confirmed only 10 judges.
  We should start by clearing the Senate calendar of judicial nominees 
this week. I would like to commend the Senator from Illinois, Senator 
Durbin, for his action in strong support of the two outstanding 
judicial nominees from his home state who have been languishing on the 
Senator calendar for months. I know Senator Durbin took action only 
after he had exhausted all his other options.
  It is time for the Senate to consider the nominations of G. Patrick 
Murphy and Judge Michael McCuskey. The Senate Judiciary Committee 
unanimously reported these two nominations to the full Senate on 
November 6, 1997--more than 5 months ago. Their confirmations are 
desperately needed to end the vacancy crisis in the district courts of 
Illinois.
  Pat Murphy is an outstanding judicial nominee. He has practiced law 
in the State of Illinois for 20 years as a trial lawyer. During his 
legal career, Mr. Murphy has made an extensive commitment to pro bono 
service--dedicating approximately 20% of his working time to 
representing disadvantaged clients in his community. The American Bar 
Association recognized this extensive legal experience when it rated 
him as qualified for this nomination.
  Judge Michael McCuskey is an outstanding judicial nominee. Judge 
McCuskey served as a Public Defender for Marshall County in Lacon, IL 
from 1976 to 1988. In 1988, he left the Public Defender's office and 
the law firm of Pace, McCuskey and Galley to sit on the bench in the 
10th Judicial Circuit in Peoria, IL.
  The Chief Justice of the United States Supreme Court has called the 
rising number of vacancies ``the most immediate problem we face in the 
federal judiciary.'' There is no excuse for the Senate's delay in 
considering these two fine nominees for Districts plagued with judicial 
emergency vacancies.
  I have urged those who have been stalling the consideration of the 
President's judicial nominations to reconsider and to work with us to 
have the Judiciary Committee and the Senate fulfil its constitutional 
responsibility. Those who delay or prevent the filling of these 
vacancies must understand that they are delaying or preventing the 
administration of justice. Courts cannot try cases, incarcerate the 
guilty or resolve civil disputes without judges.
  The mounting backlogs of civil and criminal cases in the dozens of 
emergency districts, in particular, are growing more critical by the 
day. This is particularly true in the Central and Southern District 
Courts of Illinois, where these outstanding nominees will serve once 
they are confirmed.
  I hope that the Majority Leader will soon set a date certain to 
consider the nominations of G. Patrick Murphy and Judge Michael 
McCuskey and do so promptly.
  I hope there will be a realization by those in this body who have 
started down this destructive path of attacking the judiciary and 
stalling the confirmation of qualified nominees to the federal bench 
that those efforts do not serve the national interest or the American 
people. I hope that we can once again remove these important matters 
from partisan and ideological politics.
  Mrs. FEINSTEIN. Mr. President, it is with enthusiasm and pride that I 
ask my colleagues to confirm Judge Jeremy Fogel for appointment to the 
Northern District Court in California.
  I recommended to President Clinton the appointment of Judge Fogel.
  Judge Fogel has been unanimously approved by the Senate Judiciary 
Committee and I hope that he will receive the same type of support 
today.
  Judge Fogel is extremely well qualified for this appointment. He is a 
highly respected judge in the San Jose area.
  For the past three years, in fact, Judge Fogel was ranked as the best 
Superior Court Judge in the Santa Clara County according to a survey of 
both prosecutors and attorneys.
  Judge Fogel has earned a reputation for fairness and sound reasoning 
over the course of his 17-year career on both the Municipal and 
Superior Courts in California.
  Let me provide a few details about Judge Fogel:
  He obtained his Bachelors degree from Stanford University, graduating 
with ``great distinction,'' and went on to earn his Juris Doctorate 
from Harvard University, graduating cum laude.
  Following law school, he served as a civil attorney at Smith, 
Johnson, Fogel & Ramo in San Jose and worked as executive director of 
the Santa Clara County Bar Association Law Foundation.
  Appointed to the Municipal Court in 1981, he served as Presiding 
Judge of the Court's Felony Division and in 1984, Presiding Judge of 
the Municipal Court
  Immediately after election to the Superior Court in 1986, he was 
assigned to be the Court's sole civil law and motion judge. Judge Fogel 
has also served as the civil team leader responsible for settlement and 
case management.
  Judge Fogel is also a recognized expert in judicial ethics and 
discipline, having taught ethics to judges and lawyers since 1988.
  He has served as an advisor on judicial ethics to the Judicial 
Council of California, the Commission on Judicial Performance and the 
California Judges Association.
  His outstanding experience in the State Courts and his experience 
advocating for high judicial standards are just some of the reasons 
Judge Fogel is so well respected within the legal community and has 
such strong bipartisan support.
  Judge Fogel's support--from Republicans and Democrats alike--includes 
many endorsements from law enforcement leaders, attorneys and Judges on 
the State Court who know him best.
  In the law enforcement community, Judge Fogel has earned the strong 
support of Santa Clara County District Attorney George Kennedy and the 
California Narcotics Officers Association.
  I'd like to quote from just some of the impressive letters of support 
we received on behalf of Judge Fogel:
  State Court of Appeal Presiding Justice J. Clinton Peterson wrote:
       Judge Fogel is a highly disciplined jurist of exceptional 
     intellect. . . . By reputation he has long been one of the 
     leading members of the Santa Clara bench, noted particularly 
     for his outstanding judicial demeanor and impartiality in 
     applying the law.

  Weldon Wood, principal of Robinson & Wood and officer of San 
Francisco Chapter of American Board of Trial Advocates said:
       My experience with Judge Fogel comes from several years of 
     almost daily contact by me or members of law firm while he 
     served as the Civil Law & Motion Judge. . . . In that 
     position he was called upon to read, understand and rule on a 
     huge volume of motions, many of which were quite complex. He 
     was exceptionally impressive in his grasp of the facts and 
     the law in ruling on those motions. His reputation for making 
     the correct and legal ruling is excellent. He treats all who 
     appear before him with courtesy, respect and proper judicial 
     decorum.
  Santa Clara County Bar Association President Richard Loftus wrote:
       The lawyers of this County believe him to be a bright, 
     thoughtful person who is a leader of the local judiciary.
  Retired California Court of Appeal Associate Justice Harry Brauer 
said:
       [Judge] Fogel is extraordinarily competent, and I am not 
     given to hyperbole. He is conscientious and has good 
     judgement. He works very hard . . . There is not a Superior 
     Court judge in that District who is better qualified then he 
     is. . . . You could not do better than to nominate Judge 
     Fogel.
  San Jose Attorney David Bennion wrote:
       He does not favor one side over another. He treats people 
     and clients evenhandedly.
  As these quotes indicate, Judge Fogel's sound judgement has earned 
him the highest respect of those in the legal community
  Jeremy Fogel, quite simply, is one of the best and brightest Judges 
in California.
  I urge my colleagues in the Senate to confirm his nomination to the 
Northern District Court.
  Mr. LEAHY. Mr. President, I am advised that I can yield the time of 
the

[[Page S1988]]

distinguished senior Senator from Utah. I yield all of his time and my 
time so we can go to a vote on the nomination.
  The PRESIDING OFFICER. All time is yielded back.
  The question is, Will the Senate advise and consent to the nomination 
of Jeremy D. Fogel, of California, to be United States District Judge 
for the Northern District of California? On this question, the yeas and 
nays have been ordered, and the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Faircloth), the Senator from Texas (Mr. Gramm), the Senator from 
Oklahoma (Mr. Inhofe), and the Senator from Oregon (Mr. Smith) are 
necessarily absent.
  Mr. FORD. I announce that the Senator from Hawaii (Mr. Inouye), the 
Senator from Massachusetts (Mr. Kerry), the Senator from Maryland (Ms. 
Mikulski), the Senator from Illinois (Ms. Moseley-Braun), the Senator 
from New Jersey (Mr. Torricelli), and the Senator from Oregon (Mr. 
Wyden) are necessarily absent.
  The result was announced--yeas 90, nays 0, as follows:

                       [Rollcall Vote No. 33 Ex.]

                                YEAS--90

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wellstone

                             NOT VOTING--10

     Faircloth
     Gramm
     Inhofe
     Inouye
     Kerry
     Mikulski
     Moseley-Braun
     Smith (OR)
     Torricelli
     Wyden
  The nomination was confirmed.
  Mr. BREAUX. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Brownback). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ROTH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________