[Congressional Record Volume 148, Number 105 (Monday, July 29, 2002)]
[Senate]
[Pages S7452-S7455]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONFIRMATION OF JUDGE JULIA SMITH GIBBONS
Mr. LEAHY. Mr. President, with today's vote, the Senate will confirm
the 12th judge to our Federal courts of appeals and our 61st judicial
nominee since the change in Senate majority last summer. In little more
than 1 year, the Senate Judiciary Committee has already voted on 75 of
this President's judicial nominees, including 15 nominees to the courts
of appeals. This is more circuit and district court nominees than in
any of the previous 6\1/2\ years of Republican control. In fact, we
have given votes to more judicial nominees than in 1996 and 1997
combined, as well as in 1999 and 2000 combined.
Despite the partisan din about blockades and stalls and inaction as
well as absurd claims that judicial nominees are being held
``hostage''--the fact is that since the change in majority last summer
the Senate, and in particular the Judiciary Committee, has been working
at a much faster rate than in the 6\1/2\ years of Republican control.
With respect to courts of appeals nominees, we confirmed the first of
President Bush's nominees last July 20 and today we confirm the 12th.
That is a confirmation rate of approximately one circuit court nominee
confirmed per month. By contrast, in the 76 months in which Republicans
were in charge, only 46 courts of appeals judges were confirmed, at a
rate closer to one every two months. Thus, despite the additional
obstacles and roadblocks that the partisan practices of the new
administration have created and the partisan rhetoric of our critics,
we are actually achieving almost twice as much as our Republican
counterparts did. With a little cooperation from the administration and
the nomination of more moderate, mainstream candidates, we would be
even further along.
During the 76 months under the Republican control before the
Judiciary Committee was allowed to reorganize, vacancies on the Federal
courts rose from 63 to 110. Vacancies on the Courts of Appeals more
than doubled from 16 to 33. That is the situation created by Republican
inaction and that is the situation we inherited. Since the change in
majority, confirmations have gone up and vacancies have been going
down.
Courts of Appeals vacancies are being decreased rather than
continuing to increase, despite the high level of attrition since the
shift in Senate majority last summer.
Indeed, in the last year the Judiciary Committee held the first
hearing on a Fifth Circuit nominee in 7 years, the first hearing on a
Tenth Circuit nominee in 6 years, the first hearing on a Sixth Circuit
nominee in almost 5 years, the first hearing on a Fourth Circuit
nominee in 3 years, the first hearing on a Ninth Circuit nominee in 2
years. This week we held hearings on a third nominee to the Fifth
Circuit in less than a year. This contrasts with the lack of any
confirmation hearing on any of President Clinton's nominees to the
Fifth Circuit in the last 5\1/2\ years of Republican control of the
confirmation process, despite three qualified nominees to vacancies
there.
The nominee being considered today is the first nominee to the Sixth
Circuit to be given a vote by the Senate since 1997.
After that, the Republican majority locked the gates and despite a
number of well-qualified nominees sent to the Senate by President
Clinton between 1995 and 2001, none were allowed to receive a hearing
or a vote for all of 1998, 1999, 2000 and the first 3 months of 2001.
Most of the vacancies that exist on the Sixth Circuit arose during the
Clinton administration and before the change in majority last summer.
[[Page S7453]]
Yet not one of the Clinton nominees to those current vacancies on the
Sixth Circuit received a hearing by the Judiciary Committee under
Republican leadership.
The Sixth Circuit vacancies are a prime and unfortunate legacy of the
past partisan obstructionist practices under Republican leadership and
one of a number of examples of circuits in which the vacancies were
preserved rather than filled by the former Republican majority in the
Senate.
That is what created the problem that we are now trying to correct.
Vacancies on the Sixth Circuit were perpetuated during the last several
years of the Clinton administration when the Republican majority
refused to hold hearings on the nominations of Judge Helene White,
Kathleen McCree Lewis, and Professor Kent Markus to those vacancies in
the Sixth Circuit.
One of those seats has been vacant since 1995, the first term of
President Clinton. Judge Helene White of the Michigan Courts of appeals
was nominated in January 1997 and did not receive a hearing on her
nomination during the more than 1,500 days before her nomination was
withdrawn by President Bush in March of last year.
Judge White's nomination may have set one or a number of unfortunate
records for obstruction established during the years 1996-2001. Her
nomination was pending without a hearing before this committee for over
4 years 51 months.
She was first nominated in January 1997 and renominated and
renominated through March of last year when President Bush chose to
withdraw her nomination.
This was at a time when the committee averaged hearings on only nine
courts of appeals nominees a year and, in 2000, held only five hearings
on courts of appeals nominees all year. In contrast, Judge Gibbons was
the 11th courts of appeals nominees voted on by the committee during
the first 10 months of a Democratic majority.
As of today, the Democratic-led Judiciary Committee has held hearings
for 17 of President Bush's courts of appeals nominees in less than 13
months, and we will hold our 18th hearing for a courts of appeals
nominee this week.
Kathleen McCree Lewis, a distinguished lawyer from a prestigious
Michigan law firm, also did not receive a hearing on her 1999
nomination to the Sixth Circuit during the years it was pending before
it was withdrawn by President Bush in March 2001. She is the daughter
of Wade McCree, a former Solicitor General of the United States and
former Sixth Circuit judge.
Professor Kent Markus, another outstanding nominee to a vacancy on
the Sixth Circuit that arose in 1999, never received a hearing on his
nomination before his nomination was returned to President Clinton
without action in December 2000.
While Professor Markus' nomination was pending, his confirmation was
supported by individuals of every political stripe, including: 14 past
presidents of the Ohio State Bar Association; more than 80 Ohio law
school deans and professors; prominent Ohio Republicans, including Ohio
Supreme Court Chief Justice Thomas Moyer, Ohio Supreme Court Justice
Evelyn Stratton, Congresswoman Deborah Pryce, and Congressman David
Hobson; the National District Attorneys Association; and virtually
every major newspaper in the State.
Professor Markus summarized his experience as a Federal judicial
nominee in testimony this May in a hearing before Senator Schumer. Here
are some of things he said:
On February 9, 2000, I was the President's first judicial
nominee in that calendar year. And then the waiting began. .
. . At the time my nomination was pending, despite lower
vacancy rates than the 6th Circuit, in calendar year 2000,
the Senate confirmed circuit nominees to the 3rd, 9th and
Federal Circuits. . . . No 6th circuit nominee had been
afforded a hearing in the prior two years. Of the nominees
awaiting a Judiciary Committee hearing, there was no circuit
with more nominees than the 6th Circuit.
With high vacancies already impacting the 6th Circuit's
performance, and more vacancies on the way, why, then, did my
nomination expire without even a hearing? To their credit,
Senator DeWine and his staff and Senator Hatch's staff and
others close to him were straight with me.
Over and over again they told me two things: No. (1) There
will be no more confirmations to the 6th Circuit during the
Clinton Administration, and No. (2) This has nothing to do
with you; don't take it personally it doesn't matter who the
nominee is, what credentials they may have or what support
they may have--see item number 1. . . .
The fact was, a decision had been made to hold the
vacancies and see who won the presidential election. With a
Bush win, all those seats could go to Bush rather than
Clinton nominees.
As Professor Markus identified, some on the other side of the aisle
held these seats open for years for another President to fill, instead
of proceeding fairly on the consensus nominees pending before the
Senate. Republicans were unwilling to move forward, even knowing that
retirements and attrition would create four additional seats that would
arise naturally for the next President. That is why there are now eight
vacancies on the Sixth Circuit and why it is half empty.
Long before some of the recent voices of concern were raised about
the vacancies on that court, Democratic Senators in 1997, 1998, 1999,
and 2000 implored the Republican majority to give the Sixth Circuit
nominees hearings. Those requests, made not just for the sake of the
nominees but for the sake of the public's business before the court,
were ignored. Numerous articles and editorials urged the Republican
leadership to act on those nominations, to no avail.
Fourteen former presidents of the Michigan State Bar pleaded for
hearings on those nominations.
The former chief judge of the Sixth Circuit, Judge Gilbert Merritt,
wrote to the Judiciary Committee chairman years ago to ask that the
nominees get hearings and that the vacancies be filled.
The chief judge noted that, with four vacancies--the four vacancies
that arose in the Clinton administration--the Sixth Circuit ``is
hurting badly and will not be able to keep up with its work load due to
the fact that the Senate Judiciary Committee has acted on none of the
nominations to our Court.''
He predicted: ``By the time the next President is inaugurated, there
will be 6 vacancies on the Courts of appeals. Almost half of the Court
will be vacant and will remain so for most of 2001 due to the
exigencies of the nomination process. Although the President has
nominated candidates, the Senate has refused to take a vote on any of
them.'' Nonetheless, no Sixth Circuit hearings were held in the last 3
years of the Clinton administration, despite these pleas. Not one.
Since the shift in majority last summer, the situation has been
exacerbated further as two additional vacancies have arisen.
The committee's April 25th hearing on the nomination of Judge Gibbons
to the Sixth Circuit was the first hearing on a Sixth Circuit
nomination in almost 5 years, even though three outstanding, fair-
minded individuals were nominated to the Sixth Circuit by President
Clinton and were pending before the committee for anywhere from 1 year
to over 4 years. We have not stopped there but have proceeded to hold a
hearing on a second Sixth Circuit nominee, Professor John Rogers of
Kentucky, and the Judiciary Committee has acted on that nomination, as
well.
Large numbers of vacancies continue to exist on many courts of
appeals, in large measure because the recent Republican majority was
not willing to hold hearings or vote on more than half--56 percent--of
President Clinton's courts of appeals nominees in 1999 and 2000 and was
not willing to confirm a single judge to the courts of appeals during
the entire 1996 session. As I have noted, from the time the Republicans
took over majority control of the Senate in 1995 until the
reorganization of the committee last July, circuit vacancies increased
from 16 to 33, more than doubling.
Democrats have broken with the Republican majority's history of
inaction. I certainly understand the frustration of Senator Levin and
Senator Stabenow. I know first hand the efforts they have made to solve
the problems in their circuit. I know that many of us have suggested
ways to the White House to break through and resolve the impasse. As
the chairman of the Judiciary Committee, despite my personal doubts and
reservations about this nominee due to some of her decisions as a
Federal district court judge, I will vote to confirm her, due to her
overall record, her testimony before the committee and the strong
support of Senator Thompson.
[[Page S7454]]
I respect the effort and views of Senator Thompson and want to send
what help we can to the Sixth Circuit. Far from payback for Republican
actions in the recent past, this action is being taken in spite of
those wrongs and to begin solving the problems that they have created.
Mr. HATCH. Mr. President, I rise in support of the nominations of
three excellent Federal court judges, Judge Julia Smith Gibbons, Joy
Flowers Conti, and John E. Jones.
Judge Gibbons, nominated to the Sixth Circuit Court of Appeals last
fall, is a jurist with a find legal mind, a strong work ethic, and a
widely admired judicial temperament. I have reviewed few records of
public service and personal accomplishment more outstanding than hers.
It seems to me that it was for good reason that in 2000 she received a
recognition called Heroine for Women in the Law Award.
But that is just one of her accomplishments. Judge Gibbons graduated
magna cum laude and Phi Beta Kappa from Vanderbilt University and then
with honors from the University of Virginia School of Law, where she
was an editor for the Law Review. She went on to clerk for the late
Honorable William E. Miller on the Sixth Circuit Court of Appeals,
where we now hope she will soon return after a distinguished career
which has included service as deputy counsel for Governor Lamar
Alexander and Tennessee State court judge. Since 1983 she has served as
U.S. District Court Judge for the Western District of Tennessee,
sitting with the Sixth Circuit Court of Appeals several times. Notably
she was the first female Federal judge in Tennessee and one of the
youngest Federal judges in history.
Judge Gibbons exemplifies the qualities of the nominees the President
has sent us--superbly accomplished, fully devoted to public service,
and well prepared for the Federal bench. Judge Gibbons enjoys the
support of Democrats and Republicans and everyone who knows her work.
She is backed by her home State legislators. Senator Thompson says she
is ``an outstanding person and jurist . . . [who will] serve the court
with dignity and distinction.'' Senator Frist has described her a
``trailblazer for women in the legal profession [who] exemplifies in
both her professional and personal life the character that makes us a
great Nation.'' Democratic Congressman Harold Ford, Jr., has noted that
Judge Gibbons has ``earned a solid reputation of applying the law in a
manner consistent with our nation's commitment to equal protection
under the law.''
Judge Gilbert S. Merritt, whose seat on the Sixth Circuit Judge
Gibbons will occupy, calls her a ``very able and distinguished Federal
judge'' and adds that he would be ``very happy to be replaced by her on
our court.''
Members of the Memphis, TN, legal community have added their own high
praise. For example, Pat Arnoult, president of the Memphis Bar
Association, cites her ``keen mind'' and ``good work ethic.'' Charles
Burson, former chief of staff and legal counsel to former Vice
President Gore and Tennessee attorney general, cites with first hand
experience her intellect, knowledge, evenhandedness, and exceptional
judicial temperament. Judge Gibbons has won the respect and bipartisan
support of legislators, attorneys, Federal judges, and Tennessee
citizens.
Judiciary Committee unanimously approved Judge Gibbon's nomination on
May 2 after a hearing that raised no issues of concern. We have waited
too long to act on her nomination on the Senate floor. With a 50
percent vacancy rate in the Sixth Circuit, we cannot afford to delay
any longer.
The two Pennsylvania district court nominees currently on the floor
also deserve our full support. Joy Flowers Conti, nominated to the
Western District of Pennsylvania, possesses years of civil litigation
experience and years of meaningful service and leadership in her
community. After graduation from Duquesne University School of Law,
where she graduated summa cum laude and finished first in her class,
Ms. Conti clerked for Justice Louis Manderino of the Supreme Court of
Pennsylvania.
For the following two years, Ms. Conti worked with the Pittsburgh
firm of Kirkpatrick & Lockhart, where she focused on business
bankruptcy, commercial finance, and other corporate law matters. She
then joined the faculty of Duquesne School of Law as a professor,
teaching classes on civil procedure, corporate finance, corporate
readjustments and reorganizations, corporations and creditors' and
debtors' rights.
In 1982, Ms. Conti returned to her former firm, Kirkpatrick &
Lockhart, and was named a partner in 1983. She again concentrated her
practice in business bankruptcy. She remained with the firm until 1996,
when she joined her current firm, Buchanan Ingersoll, to handle
business bankruptcy cases, health care matters, and nonprofit
corporation issues.
While serving as cochair of the Pennsylvania Bar Association's Task
Force for the Poor, she has helped with efforts to improve access to
legal services for indigent residents. She also initiated a program
proving employment for disadvantaged high school students in local
legal offices, donating approximately 200 ours to the cause.
John E. Jones, our nominee to the U.S. District Court for the Eastern
District of Pennsylvania, is similarly distinguished jurist. Mr. Jones
earned his undergraduate and law degrees from Dickinson College. After
graduation, he joined the Pottsville law firm of Dolbin & Cori as an
associated and worked part time as a clerk for Judge Guy A. Bowe of the
Schuylkill County Court of Common Pleas. After 2 years, Mr. Jones
became a partner at Dolbin & Cori.
In 1984, Mr. Jones began an 11-year association as a part-time
assistant public defender with the Schuylkill County Public Defender's
Office. His caseload included defending capital murder and criminal
homicide cases. Mr. Jones now works for his own firm, concentrating on
bankruptcy, personal injury, family, real estate, and corporate law.
In 1995, Mr. Jones was appointed and confirmed to the office of
chairman of the Pennsylvania Liquor Control Board. The Control Board is
responsible for the sale and regulation of all alcohol products in
Pennsylvania. The Control Board also runs the State's Alcohol Education
Program. As chairman, Mr. Jones has utilized his skills and experience
as a practicing attorney to change the State's liquor licensing
procedures. As head of the State's Alcohol Education Program, he has
been a tireless advocate against drunk driving and underage drinking.
In November 2000, Mr. Jones received the Government Leadership Award
from the National commission Against Drunk Driving in Washington, DC.
In May 1999, he was renominated and confirmed for a second 4-year term
as Control Board's Chairman.
I am confident that these three Federal court nominees-Julia Smith
Gibbons, Joy F. Conti, and John E. Jones--will each make fine additions
to the Federal judiciary. They deserve our swift confirmation
Mr. REID. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Julia Smith Gibbons, of Tennessee, to be United States Circuit Judge
for the Sixth Circuit? The clerk will call the roll.
The senior assistant bill clerk called the roll.
Mr. REID. I announce that the Senator from Florida (Mr. Nelson), is
necessarily absent.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms), the Senator from Ohio (Mr. DeWine), the Senator from Arkansas
(Mr. Hutchinson), and the Senator from Kentucky (Mr. McConnell), are
necessarily absent.
The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 95, nays 0, as follows:
[Rollcall Vote No. 194 Ex.]
YEAS--95
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
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
[[Page S7455]]
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
Mikulski
Miller
Murkowski
Murray
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--5
DeWine
Helms
Hutchinson
McConnell
Nelson (FL)
Mr. FRIST. Mr. President, I rise today to thank my colleagues for the
confirmation of Julia Smith Gibbons to the U.S. Court of Appeals for
the Sixth Circuit. I am also grateful to President Bush for his
nomination of this outstanding judge whose distinguished life is an
example of the American dream.
Raised in Pulaski, TN, Judge Gibbons has been a trailblazer for women
in the legal profession, and exemplifies in both her professional and
personal life the character that makes us a great nation--active in her
church and community, a supportive and loving wife to her husband,
Bill, for 29 years, and a proud mother of two wonderful children, Carey
and Will. A product of small town America and the solid values that her
family instilled in her, as valedictorian of her senior class at Giles
County High School, Julia was obviously poised to accomplish great
things.
With an outstanding record of achievement at Vanderbilt University
and the University of Virginia Law School, Judge Gibbons headed home to
Tennessee to begin her legal career. She served then-Governor Lamar
Alexander as his legal advisor, and in 1981, she became the first
female trial judge of a court of record in Tennessee. President Reagan
recognized her talent and skill, and just 2 years later, in 1983, she
was confirmed by the Senate as a U.S. District Judge in the Western
District of Tennessee. At that time, Julia became the first female
Federal judge in Tennessee, and was the youngest person on the Federal
bench in the country, and the second youngest in the Nation's history
ever appointed to a district court judgeship. Despite her tender years,
her legal acumen and human touch soon made her one of the brightest
stars in our Federal judicial system.
Judge Gibbons is known for being bright, industrious, thorough, even-
handed and someone who truly loves the law. She is everything anyone
could want in a judge, and will continue to serve our country with
distinction on the Sixth Circuit.
____________________