[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.

                          ____________________