[Congressional Record Volume 144, Number 29 (Tuesday, March 17, 1998)]
[Senate]
[Pages S2095-S2096]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF SUSAN GRABER, OF OREGON, TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE NINTH CIRCUIT

  The PRESIDING OFFICER. The Senate will now proceed to vote on the 
nomination of Susan Graber of Oregon, which the clerk will report.
  The legislative clerk read the nomination of Susan Graber of Oregon 
to be United States circuit judge for the ninth circuit.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Susan Graber, of Oregon, to be a U.S. 
circuit judge for the second circuit? On this question, the yeas and 
nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Hawaii (Mr. Inouye) and 
the Senator from West Virginia (Mr. Rockefeller) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from West 
Virginia (Mr. Rockefeller) would vote ``aye.''
  The result was announced--yeas 98, nays 0, as follows:

                       [Rollcall Vote No. 35 Ex.]

                                YEAS--98

     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
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Inouye
     Rockefeller
       
  The nomination was confirmed.
  Mr. WYDEN. Mr. President, I move to reconsider the vote.
  Mr. SMITH of Oregon. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEAHY. Mr. President, I am delighted that the Majority Leader has 
chosen to proceed to consideration of the nomination of Justice Susan 
Graber to the Ninth Circuit. Justice Graber currently serves on the 
Oregon Supreme Court. She was reported unanimously by the Judiciary 
Committee earlier this month. She has the support of both Oregon 
Senators and received the American Bar Association's highest rating.
  At her confirmation hearing, she was interrogated about two briefs 
that she had filed a number of years ago, in 1982 and 1984, in 
connection with cases being pursued by the ACLU. She was asked whether 
she is now or ever has been a member of the ACLU. She was asked whether 
she personally agreed with a number of positions taken recently by the 
ACLU. I objected to this line of questioning at the hearing and caution 
the Senate that we are headed down a road toward an ideological litmus 
test that does not well serve the Senate, the courts or the American 
people.
  I hope that Justice Graber's confirmation will signal a change of 
direction and a willingness of the Senate to confirm qualified judicial 
nominees. I was encouraged when Senator Sessions voted to report this 
nomination favorably and said: ``I think she is a very talented 
nominee, has been an activist in some ways in her past, but has many 
good recommendations, and I think would have the capability of making 
an outstanding judge. I would support her nomination, although had I 
been making the nomination, I may not have nominated her.'' I trust 
that is the standard that will be applied to other qualified nominees, 
as well.
  I remain concerned, as I look at the Senate Executive Calendar, that 
we are again passing over other highly-qualified nominees, nominees who 
will be confirmed by the Senate if they are ever allowed to be 
considered. In particular, I see G. Patrick Murphy, the nominee to the 
District Court for the Southern District of Illinois, and Judge Michael 
P. McCuskey, the nominee to the District Court for the Central District 
of Illinois. I spoke of these longstanding nominations yesterday, as 
well. I know that Senator Durbin is doing everything he can to try to 
have them considered by the Senate because they have been on the Senate 
calendar since last November, over 5 months; they are desperately 
needed in their districts; and they are so well qualified.
  I see Edward F. Shea, a nominee to the District Court for the Eastern 
District of Washington, and Margaret McKeown, the Washington State 
nominee to the Ninth Circuit. Mr. Shea was reported at the same time as 
two other District Court nominees who have been considered and 
confirmed and should likewise be considered and confirmed without 
further, unnecessary delay. Margaret McKeown was reported before the 
Justice Graber but has been skipped over, as well. Her nomination is 
fast approaching its two-year anniversary. She was reported by the 
Judiciary Committee on a vote of 16 to 2 and she has the support of 
Chairman Hatch and a number of Republican Senators. Why these 
outstanding nominees are being skipped is a mystery to me.
  Finally, we have reported to the Senate the nomination of Judge 
Sotomayor to the United States Court of Appeals for the Second Circuit. 
Her nomination was received back in June 1997. She, too, was favorably 
reported by a Committee vote of 16 to 2, once we finally considered her 
nomination. She is strongly supported by both New York Senators, yet 
the nomination continues to languish without consideration. This would 
fill one of the four vacancies that currently plague that Court. A 
fifth vacancy on this 13-judge court will arise before the end of this 
month.
  The confirmation of Susan Graber will mark the twelfth judge 
confirmed by the Senate this year. While we are still behind the pace 
the Senate established in the last nine weeks of last year, we can make 
a step in the right direction by proceeding to consider and confirm the 
five additional judicial nominees who remain on the Senate calendar and 
are ready for our consideration and favorable action.
  When the Chief Justice of the United States Supreme Court wrote in 
his 1997 Year End Report that ``some current nominees have been waiting 
a considerable time for a . . . final floor vote'' he could have been 
referring to Patrick Murphy, Judge Michael McCuskey, Margaret McKeown 
and Judge Sonia Sotomayor.
  Nine months should be more than a sufficient time for the Senate to 
complete its review of these nominees. During the four years of the 
Bush Administration, only three confirmations took as long as nine 
months. Last year, 10 of the 36 judges confirmed took nine months or 
more and many took as long as a year and one-half. So far this year, 
Judge Ann Aiken, Judge Margaret Morrow, and Judge Hilda Tagle have 
taken 21 months, 26 months and 31

[[Page S2096]]

months respectively. The average number of days to consider nominees 
used to be between 50 and 90, it rose last year to over 200 and this 
year stands at over 300 days from nomination to confirmation. That is 
too long and does a disservice to our Federal Courts. I urge the 
Republican leadership to proceed to consideration of each of the 
judicial nominees pending on the Senate calendar without further delay.

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