[Congressional Record Volume 148, Number 11 (Monday, February 11, 2002)]
[Senate]
[Pages S582-S585]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATIONS OF MICHAEL J. MELLOY, OF IOWA, TO BE UNITED STATES CIRCUIT 
 JUDGE FOR THE EIGHTH CIRCUIT, AND JAY C. ZAINEY, OF LOUISIANA, TO BE 
   UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA

  The PRESIDING OFFICER (Mr. Carper). Under the previous order, the 
Senate will now proceed to executive session to consider Executive 
Calendar Nos. 670 and 676, which the clerk will report.
  The legislative clerk read the nominations of Michael J. Melloy, of 
Iowa, to be United States Circuit Judge for the Eighth Circuit, and Jay 
C. Zainey, of Louisiana, to be United States District Judge for the 
Eastern District of Louisiana.
  The PRESIDING OFFICER. Under the previous order, there are now 15 
minutes to be equally divided.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I begin by thanking the nominees' home 
State Senators for working with us on this nomination and by commending 
the majority leader and our assistant majority leader for bringing this 
matter to successful conclusion today.
  I also want to thank Senator Cantwell for chairing the hearing in 
January that laid the groundwork for today's confirmation of Judge 
Michael Melloy as a judge on the United States Court of Appeals for the 
Eighth Circuit. That confirmation hearing was held on the second day of 
this session of Congress and was the twelfth confirmation hearing for 
judicial nominees since the majority shifted last summer. Judge Melloy 
and the five district court nominees included in the hearing that 
Senator Cantwell chaired are the first judicial nominees to receive a 
confirmation hearing during January since at least 1995.
  Those nominees were all promptly considered by the committee at our 
business meeting last Thursday and, today, due to that unusually fast 
start by the committee, Judge Melloy's nomination is being considered 
by the Senate for final action.
  Last year I noticed our first judicial nominations hearing within 10 
minutes of the Senate being permitted to reorganize. We held that first 
hearing last session on the day after committee members were assigned. 
In fact, during the past 7 months we have held 12 hearings involving 
judicial nominees. That is more hearings involving judicial nominees 
than were held in all of 1996, 1997, 1999 or 2000 and a more rapid pace 
than in either 1995 or 1998. Unlike the preceding six and one-half 
years in which no hearings were held in 30 of the months, since the 
Committee has reorganized last summer, we have held at least one 
hearing for judicial nominees every month. In fact, we held two in 
July, two unprecedented hearings during last summer's August recess, 
two in December and three in October. With the hearing at which Judge 
Melloy appeared, we now have held at least one hearing for judicial 
nominees every month since we were permitted to reorganize last summer 
after I became chairman of the committee and the Democrats became the 
majority party in the Senate.
  Judge Melloy's confirmation fills a judicial emergency vacancy. That 
seat on the Court of Appeals for the Eighth Circuit, which includes 
eight States--Iowa, Arkansas, Minnesota, Missouri, Nebraska, North 
Dakota and South Dakota--has been vacant since May 1, 1999. I recall 
that it was not so long ago, in 2000, when the Senate was under 
Republican control, that another nominee to this very seat on the 
Eighth Circuit, Bonnie Campbell, did not receive the courtesy of a vote 
by the committee following the hearing on her nomination. She did not 
receive a vote due to the previous policy of allowing anonymous holds 
to be placed on nominees, even though in her case, both of her home 
State Senators, one a Democrat and the other a Republican, supported 
her nomination. Bonnie Campbell, the former Attorney General of Iowa, 
did not receive the courtesy of a vote, up or down, during the 382 days 
between her nomination by President Clinton and the time that the Bush 
Administration withdrew her name.
  In contrast, we moved expeditiously to consider and report Judge 
Melloy's nomination to the Eighth Circuit. He participated in the first 
confirmation hearing this year, and his nomination was favorably 
reported by the Committee last week, during the first full week of this 
session. Judge Melloy's confirmation will eliminate the judicial 
emergency vacancy in that circuit caused, in part, by the committee's 
failure to act on Bonnie Campbell's nomination when Republicans 
controlled the Senate and the confirmation process.
  Since the change in majority last summer, we have already moved ahead 
to confirm another new member of the Eighth Circuit. Judge Melloy will 
join Judge William J. Riley of Nebraska as the second judge considered 
and confirmed to the Eighth Circuit since the

[[Page S583]]

summer. Both nominees were supported by well-respected home-state 
Senators from both parties.
  Judge Melloy will be the seventh Court of Appeals nomination 
confirmed by the Senate in the last seven months. That is seven more 
Court of Appeals judges than a Republican majority confirmed in the 
1996 session, and as many as were confirmed in all of 1997 and in all 
of 1999.
  During our consideration of Judge Melloy's nomination to be elevated 
to the Eighth Circuit, we learned that Judge Melloy has a reputation 
for decisions that are fair, well-reasoned and well-written, without 
editorial comment or ideological bent. Judge Melloy was nominated to 
the Northern District of Iowa in 1992 by President George H.W. Bush and 
confirmed by the Senate. He previously served for six years as a United 
States Bankruptcy Judge for the Northern District of Iowa. While 
serving on the District Court for these past 9\1/2\ years, Judge Melloy 
also sat by designation on the Eighth Circuit on several occasions and 
wrote a number of appellate opinions.
  I congratulate the nominee and his family on his confirmation today.
  With today's confirmation, the Senate will have confirmed five 
additional judges since returning late last month. The Senate will have 
confirmed 33 judges since the change in majority last summer. More than 
one-quarter of the judges confirmed have been for judicial emergency 
vacancies, nine so far. Unfortunately, the White House has yet to work 
with many home-state Senators to send nominees for 14 other judicial 
emergency vacancies.
  I am working to hold another confirmation hearing for judicial 
nominations, as well, before the end of February, even though it is a 
short month with a week's recess. The Committee has not held two 
hearings in the month of February in four years, since 1998.
  I noted on January 25 in my statement to the Senate that we inherited 
a frayed process and are working hard to repair the damage of the last 
several years. I have already laid out a constructive program of 
suggestions that would help in that effort and help return the 
confirmation process to one that is a cooperative, bipartisan effort. I 
have included suggestions for the White House, that it work with 
Democrats as well as Republicans, that it encourage rather than 
forestall the use of bipartisan selection commissions, that it consider 
carefully the views of home State Senators. Working together, we can 
make significant progress in filling judicial vacancies.
  Mr. HATCH. Mr. President, I am pleased that we are considering today 
the nominations of two very well-qualified nominees for the Federal 
courts.
  Our circuit nominee is Judge Michael Melloy, who has been nominated 
for a position on the U.S. Court of Appeals for the Eighth Circuit. 
Judge Melloy has impeccable credentials for this position: He has 
served for the past decade as a Federal District court judge in Iowa, 
and he served as a bankruptcy court judge for six years before then. In 
his capacity as a district judge, he has had the honor of having been 
invited to sit by designation with the Eighth Circuit. I am certain 
that his distinguished experience will serve him well as he makes the 
move to join the Eighth Circuit on a permanent basis.
  Today's district court nominee is Jay Zainey, whom we are considering 
for the Eastern District of Louisiana. Mr Zainey is an experienced 
private practitioner who has earned the respect of his colleagues, as 
reflected in his election as president of the Louisiana State Bar 
Association. One of the remarkable achievements during his tenure as 
President was the creation of the first state bar committee in the 
nation to provide legal referral services for the disabled. He will 
undoubtedly be a welcome addition to the Eastern District bench.
  I have every confidence that both of these nominees will serve on the 
federal courts with distinction. I commend President Bush for selecting 
them, and I thank Chairman Leahy for holding hearings and committee 
votes on them.
  I do note that five other district court nominees were unanimously 
voted out of committee last week along with Judge Melloy and Mr. 
Zainey. Given this strong endorsement, I urge the Senate to give their 
nominations timely consideration as well.
  Before I yield the floor, I would like to briefly address our 
progress on judicial nominees so far during this session of Congress. I 
began this session on an optimistic note about our opportunity to 
address the vacancy crisis that plagues the federal judiciary. Nearly 
100 seats on the federal bench are presently empty. High numbers of 
vacancies in the federal judiciary can only result in delay of the 
administration of justice. And, as Justice Oliver Wendell Holmes once 
stated, and as some of my Democratic colleagues have observed in the 
past, ``Justice delayed is justice denied.'' There is simply no viable 
alternative to confirming judges if we are to make a bona fide effort 
to fill the vacancies in our Federal judiciary.
  Despite some of the negative rhetoric and distortions of the record I 
have heard over the last couple of weeks, I am still optimistic about 
our chances for success. As I have mentioned before, we are off to a 
good start. But we still have much work left to do. Last May, President 
Bush nominated 11 extremely well-qualified nominees to the circuit 
court of appeals, but only 3 of them have had hearings thus far. Less 
than one-third of the administration's total appellate nominees have 
had hearings. So while we are off to a good start, there is much work 
left to be done.
  In 1994, President Clinton's second year in office, the Senate 
confirmed 100 judicial nominees. I am confident that, with diligence 
and determination, we can replicate that feat this year. I pledge to 
work with my Democratic colleagues to get hearings and confirmation 
votes for our pending judicial nominees.
  Thank you, Mr. President. I yield the floor.
  Ms. LANDRIEU. Mr. President, it is my distinct honor to endorse my 
good friend Jay Zainey for Federal District Court Judge for the Eastern 
District of Louisiana. I must commend President Bush for this 
nomination. He has chosen a man who will bring professionalism, 
dignity, and respect to the Federal bench.
  I cannot say enough about Jay. He has had a stellar legal career, 
practicing law in Louisiana for more than 25 years--the bulk of that 
time in solo practice in Metarie, LA, helping people draft wills, start 
businesses, and giving them sound, sage, and accurate legal advice for 
virtually any situation. In addition to his own practice, Jay has 
served as a judge and hearing officer in some of our local courts.
  His close connection to the community informed the work he did as 
Louisiana State Bar Association President. Jay established a community 
involvement committee of the Bar Association to get Louisiana's 18,000 
lawyers working on direct service projects like helping out at homeless 
shelters and soup kitchens. He saw a need in not only his community, 
but others around the state and used human resources of the bar 
association to help bring some relief.
  What is even more special about Jay is the humanity he has brought to 
the Bar and the practice of law in our state. Let me tell you about a 
very special initiative Jay started as State Bar Association president. 
He established a special committee dedicated to providing legal 
services for the disabled--the first State bar association in the 
country to do this. If a family has a disabled child or adult living 
with them and they need help understanding the Americans with 
Disabilities Act or they are having trouble sorting through the 
requirements for SSI eligibility, they can call the State Bar 
Association for a referral to a lawyer trained in disability issues.
  This effort came from Jay's heart. He and his wife Joy are the 
parents of a disabled child. And while their son Andrew is a source of 
happiness and pride for their family, Jay also understands the legal 
challenges families such as his face. His heart moved him to use his 
professional talents and skills to help disabled Louisianians, 
improving the quality of life in our State.
  I must also acknowledge his wonderful family. He and his wife Joy 
have a daughter Margaret and two sons, Christopher and Andrew. His 
family means the world to him and they will inspire his service on the 
Federal bench.
  Mr. President, we need more people such as Jay Zainey on the Federal 
bench, someone who recognizes that our judicial system is there to help

[[Page S584]]

people. It is a powerful tool for the powerless. I heartily endorse his 
nomination and urge my colleagues to vote to confirm him.
  Mr. GRASSLEY. Mr. President, I am glad that we have an opportunity to 
vote on judges today. One of the judges scheduled to be voted on today 
is Judge Michael Melloy, who has been appointed by the President and 
who will hopefully be confirmed by the Senate to be United States 
Circuit Judge for the Eighth Circuit Court of Appeals.
  First of all, before speaking about Judge Melloy, I thank Senator 
Leahy, the distinguished chairman of the Senate Judiciary Committee, 
for bringing the nomination to the committee in the form of a hearing 
last month and accommodating me on changing the date of the hearing so 
it could be convenient for me to be there and for immediately putting 
it on the agenda of the committee.
  I thank also all the committee members, each of whom had an 
opportunity to hold over this nomination for another meeting--under the 
rules that is an automatic holdover--for not doing it so that this 
nomination could be advanced very quickly.
  For my colleagues who aren't on the Judiciary Committee, I would like 
to say a few words about Judge Melloy so you can see what an excellent 
candidate we are putting on the federal appellate bench.
  Judge Melloy, who originally hails from Dubuque, IA, has had a very 
distinguished legal career. He graduated magna cum laude from Loras 
College in Dubuque, and received his law degree from the University of 
Iowa. After practicing at an Iowa law firm Judge Malloy was appointed 
United States Bankruptcy Judge for the Northern District of Iowa, a 
position be held for approximately 6 years.
  In 1992, he was appointed to the United States District Court for the 
Northern District of Iowa. Here Judge Melloy has served as a fine 
judge. He has also been active on numerous legal committees, including 
the Eighth Circuit Judicial Counsel, the Gender Fairness Task Force of 
the Eighth Circuit, and the Bankruptcy Administration Committee of the 
Judicial Conference.
  As you can see, Judge Melloy has excellent legal qualifications and 
experience, and he has been a dedicated public servant. He possesses 
all the qualities that we want to see in a federal judge, intellect, 
temperament, judgement, and a true commitment to the rule of law. He 
comes highly recommended by his peers. I know for a fact that Judge 
Melloy will serve our country well as a judge on the eighth Circuit 
court.
   I urge my colleagues to join me in supporting Judge Michael Melloy's 
nomination.
  The PRESIDING OFFICER. Under the previous order, there now remain 2 
minutes on the Republican side and 6 minutes on the Democratic side.
  Mr. GRASSLEY. Then, to be fair to everybody, I ask that the time I 
spoke be taken off our time.
  The PRESIDING OFFICER. The time was counted.
  Mr. GRASSLEY. Mr. President, I suggest the absence of a quorum and 
ask unanimous consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the question is, Will the Senate advise and 
consent to the nomination of Michael J. Melloy, of Iowa, to be United 
States Circuit Judge for the Eighth Circuit? On this question, the yeas 
and nays have been ordered. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. REID. I announce that the Senator from Georgia (Mr. Miller) and 
the Senator from Rhode Island (Mr. Reed), are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Rhode Island (Mr. Reed) would vote ``aye.''
  Mr. NICKLES. I announce that the Senator from Utah (Mr. Bennett), the 
Senator from Idaho (Mr. Craig), the Senator from Oregon (Mr. Smith), 
the Senator from Ohio (Mr. Voinovich), the Senator from Virginia (Mr. 
Warner), the Senator from Arkansas (Mr. Hutchinson), and the Senator 
from Montana (Mr. Burns) are necessarily absent. I further announce 
that if present and voting the Senator from Montana (Mr. Burns) would 
vote ``yea.''
  The PRESIDING OFFICER (Mrs. Clinton). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 91, nays 0, as follows:

                       [Rollcall Vote No. 21 Ex.]

                                YEAS--91

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

                             NOT VOTING--9

     Bennett
     Burns
     Craig
     Hutchinson
     Miller
     Reed
     Smith (OR)
     Voinovich
     Warner
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is laid upon the table, and the President will be 
immediately notified of the Senate's action.
  Under the previous order, the question is, Will the Senate advise and 
consent to the nomination of Jay C. Zainey, of Louisiana, to be United 
States District Judge for the Eastern District of Louisiana? The yeas 
and nays have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Georgia (Mr. Miller) and 
the Senator from Rhode Island (Mr. Reed) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Rhode Island (Mr. Reed) would vote ``aye.''
  Mr. NICKLES. I announce that the Senator from Utah (Mr. Bennett), the 
Senator from Idaho (Mr. Craig), the Senator from Oregon (Mr. Smith), 
the Senator from Ohio (Mr. Voinovich), the Senator from Virginia (Mr. 
Warner), and the Senator from Arkansas (Mr. Hutchinson) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 92, nays 0, as follows:

                       [Rollcall Vote No. 22 Ex.]

                              YEAS --- 92

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

                            NOT VOTING --- 8

     Bennett
     Craig
     Hutchinson
     Miller
     Reed
     Smith (OR)
     Voinovich
     Warner
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is laid upon the table.
  The President will be immediately notified of the Senate's action.

[[Page S585]]



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