[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.
____________________