[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the quorum call be rescinded.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.
____________________