[Congressional Record Volume 147, Number 156 (Tuesday, November 13, 2001)]
[Senate]
[Pages S11708-S11711]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF EDITH BROWN CLEMENT, OF LOUISIANA, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the hour of 4:45 
having arrived, the Senate will now go into executive session and 
proceed to the consideration of Executive Calendar No. 511, which the 
clerk will report.
  The assistant legislative clerk read the nomination of Edith Brown 
Clement, of Louisiana, to be United States Circuit Judge for the Fifth 
Circuit.
  The PRESIDING OFFICER. Under the previous order there will be 15 
minutes for debate, time to be equally divided by the chairman and 
ranking member of the Judiciary Committee. At 5 o'clock, a vote will 
follow on that nomination. Who yields time?
  The Senator from Montana.
  Mr. BAUCUS. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent the time be equally charged against both sides.
  The PRESIDING OFFICER. Without objection, the clerk will call the 
roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I congratulate the nominee and her family 
on her nomination, confirmation and what is soon to be her appointment 
to the United States Court of Appeals for the Fifth Circuit. I also 
commend the Senators from Louisiana for working with the committee and 
the majority leader and working with the President to bring this 
nomination forward and to have the Senate act to confirm Judge Clement.
  I take special pride in this confirmation because we are finally 
bringing some help to the Fifth Circuit. Since 1999, Chief Judge King 
of the 5th Circuit has declared a state of emergency in the Circuit 
such that the hearing and determination of cases and controversies 
could be conducted by panels of three judges selected without regard to 
the qualification in 28 U.S.C. section 46(b) that a majority of each 
panel be composed of judges of the 5th Circuit.
  I well recall when delays in the confirmation process over the last 
several years threw the 2nd Circuit into a similar emergency in March 
1998, and how hard I worked to get those five vacancies filled to end 
that emergency in my Circuit. I am glad that we are proceeding with 
Judge Clement today in order to try to help the 5th Circuit.
  Judge Edith Brown Clement from Louisiana was among the first nominees 
sent to this committee by the President. Unfortunately, in the wake of 
the Republican leader's objection to keeping that nomination and many 
others pending over the August recess, Senate rules required that her 
nomination be returned to the President without action as the Senate 
began its August recess. She was nominated again in September to serve 
on the U.S. Court of Appeals for the Fifth Circuit, which encompasses 
the States of Texas, Louisiana, and Mississippi.
  This is one of the many Circuits that were left with multiple 
vacancies at the end of the Clinton administration. Since January 23, 
1997, Judge Garwood's seat on the 5th Circuit has been vacant. Despite 
the fact that former President Clinton nominated Jorge Rangel to fill 
this vacancy in July of 1997, Mr. Rangel never received

[[Page S11709]]

a hearing and his nomination was returned on October 21, 1998. On 
September 16, 1999, former President Clinton nominated Enrique Moreno 
to fill the same vacancy. Once again, the nominee did not receive a 
hearing.
  Since April 7, 1999, the seat previously occupied by Judge Duhe of 
the 5th Circuit has been vacant. Although former President Clinton 
nominated Alston Johnson to fill that vacancy only 15 days later, on 
April 22, 1999, Mr. Johnson was never granted a hearing by the 
Judiciary Committee in 1999, during all of 2000, or during the first 
months of this year while his nomination was still pending.
  Over the last several years I have commented on those vacancies as I 
urged action on the nominations of Jorge Rangel, Enrique Moreno, and 
Alston Johnson to fill those vacancies on the 5th Circuit. None of 
those nominees were ever provided a hearing or acted upon by the 
Senate. After 15 months without action, Mr. Rangel asked not to be re-
nominated. After 15 months and two nominations, Enrique Moreno's 
nomination was returned to the President without action. After nearly 
23 months and two nominations without action, Mr. Johnson's nomination 
was withdrawn by President Bush in March of 2001.
  The nominations hearing for Judge Clement was the first hearing for a 
nominee to the 5th Circuit in 7 years--since September 14, 1994. She 
will likewise be the first judge confirmed to the 5th Circuit in 7 
years.
  Since July 2001, when the Senate was allowed to reorganize and the 
committee membership was set, we have maintained a strong effort to 
consider judicial and executive nominees. With the confirmation of 
Judge Clement, we reach yet additional milestone. Judge Clement is the 
fifth nominee to the Courts of Appeals confirmed by the Senate since 
July 20 this year. We have now confirmed as many Court of Appeals 
nominees as were confirmed during the first year of the first Bush 
administration and two more than were confirmed during the first year 
of the Clinton administration. I thank the Majority Leader, the 
Judiciary Committee and all Senators for their cooperation in reaching 
this important goal.
  In addition, I note that by confirming our 18th judicial nominee, we 
have now confirmed more total judges this year than were confirmed in 
1989, the first year of the first Bush administration. With the 
confirmations of Judges Armijo, Bowdre, Friot, and Wooten last week, 
the Senate confirmed its 10th, 11th, 12th and 13th District Court 
judges for the year and matched and then exceeded the number of 
District Court judges confirmed in 1989, which was 10.
  With the confirmation of Judge Wooten last week, the Senate confirmed 
its 17th judge over all and matched the number of judges confirmed in 
all of the 1996 session. With the confirmation of Judge Clement to the 
U.S. Court of Appeals for the Fifth Circuit we have exceeded that total 
for the 1996 session. Of course, in 1996, the Senate majority at that 
time did not proceed on a single nominee to a Court of Appeals and 
limited itself to confirming only 17 judges to the District Courts.
  Thus, despite all the upheavals we have experienced this year with 
the shifts in chairmanship and, more importantly, the need to focus our 
attention on responsible action in the fight against international 
terrorism, we have matched or beaten the number of confirmations of 
judges during the first year of first Bush administration and the last 
year of the first Clinton term.
  As a judge on the Court of Appeals, Judge Clement will have a vital 
role to play in protecting and preserving our civil liberties in the 
days ahead. Our system of checks and balances requires that the 
judicial branch review the acts of the political branches. I trust that 
Judge Clement will take this responsibility seriously and will rely on 
our rich history of judicial precedent to make wise decisions in the 
challenging times ahead.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The Senator from Utah has 1 minute 40 seconds remaining.
  Mr. LEAHY. Mr. President, I ask unanimous consent that I be allowed 
to use the remaining time of the Senator from Utah, unless he appears. 
I will then immediately yield to him.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I wanted to highlight that the Fifth 
Circuit is one of those circuits where for the last 6 or 7 years there 
was a refusal to hold any hearings on the nominees. I think we are 
changing the way things have been done in the past. On this nomination, 
there was a hearing within weeks after the nominee had cleared all the 
paperwork. I applaud the majority leader for bringing this nomination 
before the Senate.
  I also thank the members of the Judiciary Committee, and the 
distinguished Presiding Officer, who voted for this nominee on a 
rollcall vote in the committee.
  Mr. HATCH. Mr. President, I would like to voice my support for the 
nomination of Edith Brown Clement to the U.S. Court of Appeals for the 
Fifth Circuit. She has made a well-respected name for herself both as a 
litigator and as a Federal district court judge.
  Judge Clement graduated from Tulane University School of Law in 1972. 
After graduation, she accepted a clerkship with U.S. District Judge 
H.W. Christenberry in the Eastern District of Louisiana. At the 
culmination of her clerkship, Judge Clement began a 16 year career as a 
litigator, eventually becoming a partner at the New Orleans firm of 
Jones, Walker. As a practitioner, she developed an expertise in 
admiralty and maritime law, and litigated a multitude of complex and 
nuanced cases.
  In 1991, President G.H.W. Bush nominated Judge Clement to be a 
Federal district judge for the Eastern District of Louisiana--the same 
court for which she had served as a law clerk more than 15 years 
earlier. As a judge, she has written extensively on admiralty law as 
well as issues of general interest to practitioners.
  I must note that although Judge Clement's confirmation hearing was 
held on October 4, she was still receiving written questions from 
Judiciary Committee members nearly 1 month later. In fact, she received 
a lengthy set of questions from one member on November 1, the same date 
her nomination was voted out of committee. Judge Clement nevertheless 
cooperated fully and answered the questions promptly. I wish to commend 
her and the Department of Justice for their efforts in complying with 
the requests of committee members.
  During her tenure, Judge Clement has served with honor and 
distinction. She has proven herself to be exceptionally qualified for a 
position on the Fifth Circuit Court of Appeals, and I praise President 
Bush for recognizing that fact by nominating her to serve on that 
court. I wholeheartedly support Judge Clement's nomination, and urge my 
colleagues to do the same.
  Mr. FEINGOLD. Mr. President, I will vote to confirm Judge Edith Brown 
Clement to the U.S. Court of Appeals for the Fifth Circuit today, but I 
do so with some reservations. I rise today to discuss my concerns for 
the record and to comment on the issue of privately funded judicial 
education about which I questioned Judge Clement.
  Judge Clement has served for nearly a decade as a U.S. district judge 
in Louisiana. She is supported by my two colleagues from Louisiana and 
received a ``well-qualified'' rating from a majority of the ABA's 
Standing Committee on the Federal Judiciary. There is nothing in her 
record as a judge that gives me reason not to support her nomination.
  At Judge Clement's hearing before the Judiciary Committee, Senator 
Kohl asked her two questions concerning her attendance at a number of 
judicial education seminars sponsored by free-market economics 
organizations. Let me quote the full exchange between Senator Kohl and 
Judge Clement:

       Senator Kohl. I would like to turn briefly to the topic of 
     privately-funded judicial seminars, or what some have called 
     junkets for judges. Your financial disclosure forms indicate 
     that you have attended a significant number of these seminars 
     in recent years, including a seminar on environmental law 
     hosted by the Foundation for Research on Economics and the 
     Environment.

[[Page S11710]]

       As you are probably aware, such seminars have come under 
     intense scrutiny based on evidence that the seminars are one-
     sided and that they are being funded by corporations and 
     special interest groups that have an interest in Federal 
     court litigation. Senator Kerry and Senator Feingold have 
     introduced legislation that would ban these kinds of trips.
       Do you think that those Senators are correct to be 
     concerned about these trips, and might you support their kind 
     of legislation?
       Judge Clement. Well, as you know, judicial officers are 
     frequently invited to participate as speakers or participants 
     in programs dealing with judicial education, as well as 
     continuing legal education for lawyers, as well as 
     participate in lectures to law students. My experience has 
     shown that the panels and the speakers are from a widely 
     diverse group, that there is a representation from private 
     industry as well as from government and public officials, as 
     well as from the law schools, including the deans of the law 
     schools and the faculty members.
       So to that extent, my participation in programs, either as 
     a speaker or as a participant, has reflected that there is a 
     wide variety of opinions expressed. I think it is a very 
     broad-based presentation of issues dealing with 
     constitutional law, as well as antitrust and economic, as 
     well as environmental issues. So to that extent, I don't see 
     a problem with the educational opportunities afforded to the 
     judiciary.
       Senator Kohl. Do you plan to continue these types of 
     seminars in terms of your attendance in the event that you 
     are confirmed to the fifth circuit?
       Judge Clement. Well, some of the seminars are basic 
     economics which, of course, I have completed. And then there 
     is an advanced economics, which I have completed. Some of the 
     seminars are focused on the Constitution, some are focused on 
     environmental issues. So to the extent that I haven't already 
     been exposed to that information and to the extent that I am 
     impressed with the faculty that's being presented, I would 
     evaluate the opportunity at that time when presented with the 
     invitation.

  I was concerned about this exchange for a number of reasons. First, 
Judge Clement seemed to minimize her participation in judicial 
education seminars that are put on for judges by outside interest 
groups. The question Senator Kohl posed was not about her giving a 
speech or a lecture, but about attending all-expense paid seminars 
funded by corporate interests with room, board, and airfare worth 
thousands of dollars to places like Montana and Captiva Island, FL. 
Judge Clement has taken five such trips from 1994-1998.
  I was also concerned by Judge Clement's testimony that the seminars 
she attended were balanced and broad-based. An exhaustively researched 
report released last year by the Community Rights Counsel suggests 
strongly to the contrary. Judge Clement's answers to Senator Kohl's 
questions suggested that she sees nothing wrong with these trips and 
would not hesitate to attend similar events in the future if the topic 
of the seminar interests her.
  Because I was concerned about Judge Clement's testimony, I asked a 
few followup questions in writing. Those questions had not yet been 
answered when Judge Clement came up for a vote in the Judiciary 
Committee. That is why I voted ``present'' in committee.
  One of my questions called Judge Clement's attention to a Harvard 
Environmental Law Review article that specifically discussed one of the 
seminars that she attended, a trip to Montana in 1996 sponsored by the 
Foundation for Research on Economics and the Environment, FREE. After 
discussing the views of the various presenters at that seminar, the 
authors conclude:

       It is easy to see why some corporations and extreme 
     conservative foundations so eagerly fund FREE. FREE's 
     seminars for judges explain how and why judges should strike 
     down Federal environmental laws. FREE's assertion that its 
     seminars present a ``very wide range'' of viewpoints is true 
     only insofar as they feature both extreme positions like 
     those of Greve, Huffman, and DeCrane, as well as moderate 
     views such as those of Olson and Snow. The seminars offer no 
     views contrary to the seminar's principle themes. No one at 
     the seminar 1. gave a robust defense of existing Federal 
     environmental laws, 2. explained fully why the market fails 
     to protect the environment, or 3. critiqued the legal and 
     constitutional analysis of Huffman and Greve.--D. Kendall and 
     E. Sorkin, ``Nothing for Free: How Private Judicial Seminars 
     are Undermining Environmental Protections and Breaking the 
     Public's Trust,'' 25 Harv. Env. L. Rev. 405, 447 (2001).

  Judge Clement reviewed the article and stated in her response that 
she remains of the view that this seminar and others she attended 
``focused on the problems and solutions from varied perspectives.'' 
Essentially, Judge Clement refused to acknowledge that these seminars 
have any bias whatsoever. I found this answer troubling because I 
believe that most fair-minded observers, even if they do not agree with 
me that there is a problem with judges taking expense paid trips to 
receive ``education'' from a specific corporate point of view, would 
agree that the seminars in question are slanted in favor of one 
approach to the law.
  I also asked Judge Clement whether she had inquired about the 
corporate sponsorship of these seminars before attending and if not, 
how she complied with Judicial Conference Committee on Codes of Conduct 
Advisory Opinion 67. That opinion states:

       It would be improper to participate in such a seminar if 
     the sponsor, or source of funding, is involved in litigation, 
     or likely to be so involved, and the topics covered in the 
     seminar are likely to be in some manner related to the 
     subject matter of such litigation. If there is a reasonable 
     question concerning the propriety of participation, the judge 
     should take such measures as may be necessary to 
     satisfy himself or herself that there is no impropriety. 
     To the extent that this involves obtaining further 
     information from the sponsors of the seminar, the judge 
     should make clear an intent to make the information public 
     if any questions should arise concerning the propriety of 
     the judge's attendance.

  The central thrust of this opinion in my view is that judges have the 
responsibility to inquire about the sources of funding of programs they 
attend and to take steps to avoid the appearance of impropriety should 
the funders be involved in litigation before them. Judge Clement's 
response to my question was troubling. She said she relied entirely on 
the sponsoring organization's description of their purpose and 
sponsors. And she added: ``Corporate sponsors were never identified, 
and to this day I do not know who they are.'' I find this attitude of 
willful ignorance of the underlying sources of funding for these 
seminars, an attitude that I fear is shared by many members of the 
judiciary who go on these trips, very disturbing indeed.
  At the very foundation of our system of justice is the notion that 
judges will be fair and impartial. Strict ethical guidelines have been 
in effect for years to remove even the hint of impropriety from the 
conduct of those we entrust with the responsibility of adjudicating 
disputes and applying the law. One-sided seminars given in wealthy 
resorts funded by wealthy corporate interests to ``educate'' our judges 
in a particular view of the law cannot help but undermine public 
confidence in the decisions that judges who attend the seminars 
ultimately make.
  Distinguished judges and academics, most notably former 
Representative, Court of Appeals Judge, and White House Counsel Abner 
Mikva, have spoken out against these ``judicial junkets.'' I have 
worked with Senator Kerry on legislation to address this issue. I hope 
that the federal judiciary can address this growing public perception 
problem through its own internal rules, but if it doesn't, I believe 
that Congress has the responsibility to act to protect the independence 
and the reputation of the judiciary.
  Despite my reservations and concerns about Judge Clement's response 
to questions on this issue, I will vote for her. One reason is that in 
answering my questions she did acknowledge the importance of guarding 
against the appearance of impropriety. And she promised she would guard 
against such appearances if she is elevated to the 5th Circuit. 
Furthermore, there is no indication that her opinions as a judge have 
been unduly influenced by these seminars.
  In sum, I want to be clear that I do not believe that taking part in 
these seminars should disqualify a judge from a subsequent 
confirmation. I do believe, however, that our judges need to be more 
attuned to the appearance problem that there participation creates. I 
hope that in responding to questions on this topic, future nominees 
will recognize the importance of the public perception of their 
independence and impartiality.

  I ask unanimous consent that the list of trips taken by Judge 
Clement, to which I previously referred, be inserted in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           Publicly Disclosed Trips by Judge Edith B. Clement

     Date: 3-28-1996
     Sponsoring Organization: ABA American Bar Association

[[Page S11711]]

     Description: EEO, Carlsbad, CA, value $1069.65; airfare, 
         lodging, meals, and misc. 3/28-29
     Date: 1995
     Sponsoring Organization: American Hawaii Lines
     Description: Cabin upgrade valued at $2500
     Date: 5-16-1995
     Sponsoring Organization: Center for Judicial Studies/Liberty 
         Fund
     Description: 8th Annual Judicial Seminar, 5/16-21--airfare, 
         lodging, meals and misc. expenses valued $1405.55 (listed 
         Source as Liberty Fund)
     Date: 9-17-1996
     Sponsoring Organization: FREE (Foundation for Research on 
         Economics and the Environment)
     Description: Montana, 9/17-21, airfare, lodging, meals and 
         misc., value $1727.28
     Date: 10-2-1994
     Sponsoring Organization: George Mason University Law & 
         Economics Center (LEC)
     Description: George Mason U Economics Institute for Federal 
         Judges 10/2-15; housing & meals value $3832.88 and reimb. 
         of $215 for airfare
     Date: 4-12-1997
     Sponsoring Organization: George Mason University Law & 
         Economics Center (LEC)
     Description: George Mason U Antitrust Institute for Federal 
         Judges, Haines City, FL 4/12-18; airfare, lodging, meals, 
         misc., expenses valued $2090.12
     Date: 1-8-1998
     Sponsoring Organization: Liberty Fund
     Description: 1/8-11 Captiva Island, FL, Freedom and 
         Federalism Seminar--transportation, meals and room
     Date: 6-20-1996
     Sponsoring Organization: SEAK, Inc.
     Description: Expert Witness and Litigation Seminar, Cape Cod, 
         value $1004.31 6/20-21
     Date: 10-5-1995
     Sponsoring Organization: SoEastern Admirality Law Institute
     Description: SEALI mtg, 10/5-8; airfare, rental car, lodging 
         and meals valued $768.86
     Date: 5-27-1992
     Sponsoring Organization: Tulane Law School
     Description: CLE, 4th By the Bay Seminar 5/27-30; meals, 
         mileage and lodging $339.01
     Date: 10-21-1993
     Sponsoring Organization: Tulane Law School
     Description: CLE, 5th By the Bay Seminar 10/21-23; meals and 
         mileage $146.97

  The PRESIDING OFFICER (Mr. Nelson of Nebraska). All time has expired.
  The question is, Will the Senate advise and consent to the nomination 
of Edith Brown Clement, of Louisiana, to be United States Circuit Judge 
for the Fifth Circuit? On this question, the yeas and nays have been 
ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from South Dakota (Mr. Johnson) 
is necessarily absent.
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 335 Ex.]

                                YEAS--99

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--1

      
     Johnson
       
  The nomination was confirmed.
  Mr. SCHUMER. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the President will 
be immediately notified of the Senate's action.

                          ____________________