[Congressional Record Volume 149, Number 33 (Monday, March 3, 2003)]
[Senate]
[Pages S3020-S3021]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF MARIAN BLANK HORN, OF MARYLAND, TO BE A JUDGE OF THE 
                 UNITED STATES COURT OF FEDERAL CLAIMS

  The PRESIDING OFFICER. Under the previous order, the hour of 5:30 
p.m. having arrived, the Senate will now proceed to the consideration 
of Executive Calendar No. 43, which the clerk will report.
  The legislative clerk read the nomination of Marian Blank Horn, of 
Maryland, to be a Judge of the United States Court of Federal Claims.
  Mr. HATCH. Mr. President, it is my pleasure today to speak in support 
of Marian Blank Horn, who has been nominated for a second term on the 
U.S. Federal Court of Claims. Judge Horn is a distinguished United 
States Court of Federal Claims Judge whose legal career has been 
nothing short of stellar.
  Judge Horn graduated from Fordham University Law School in 1969, and 
began her career as an assistant district attorney in Bronx County, NY, 
before joining Arent, Fox, Kintner, Plotkin and Kahn, where she worked 
in the litigation division.
  From 1973 to 1975, Judge Horn was a project manager for a Study of 
Alternatives to Conventional Criminal Adjudication which was financed 
by the U.S. Department of Justice's Law Assistance Enforcement 
Administration. She also served as an adjunct professor at American 
University's Washington College of Law, where she taught the 
Introductory Legal Methods course.
  In 1975, Judge Horn joined the Office of General Counsel for the 
Department of Energy/Federal Energy Administration. From 1979 to 1981, 
Judge Horn served as the deputy assistant general counsel for Financial 
Incentives, Office of General Counsel, where she supervised all legal 
work related to financial incentives at the United States Department of 
Energy. In addition, she served as legal advisor to the assistant 
secretaries for Fossil Energy and Resource Applications, as well as the 
Office of Energy Research.
  From 1981 to 1986, she worked in the United States Department of 
Interior, where she assisted the Associate Solicitor and helped 
administer the Surface Mining Control and Reclamation Act of 1977. In 
1985, Judge Horn was promoted to principal deputy solicitor, where she 
supervised all the Regional and Field Offices of the Solicitor's Office 
in the Department and acted as the chief lawyer to the Secretary and 
Under Secretary of Department of Interior. So you see that Judge Horn 
already had a very impressive resume in 1986, when she was first 
confirmed.
  Since that time, she has built an excellent reputation as a judge, 
and I am confident that Judge Horn will continue being a fine member of 
the Federal Bench.
  Mr. LEAHY. Mr. President, today we consider the nomination of Judge 
Marion Blank Horn to the U.S. Court of Federal Claims. Although this is 
not a so-called ``Article III'' court with lifetime appointments, it is 
an important court with 15-year terms for its members. Judge Horn has 
been serving on the court for almost 15 years and I do not oppose her 
re-appointment. What I do take issue with, however, is the 
Administration's unilateral actions, in spite of the bipartisan 
cooperation and appointments of other Presidents to this and other 
courts.
  The process for nominating judges to the Court of Federal Claims has 
traditionally included accommodation and compromise. For more than 2 
years Senate Republicans blocked President Clinton's appointment of 
Larry Baskir to the court until a compromise could be reached. They 
refused to give him a hearing and refused to allow any of the other 
vacancies to be filled unless the administration promised to keep 
conservative Judge Loren Smith as the Chief Judge. Republicans also 
insisted on the reappointment of another Republican appointee, Judge 
Christine Miller. Finally, Senator Hatch agreed to allow five Clinton 
nominees to have hearings and votes if the administration also named 
his staffer Edward Damich to the court and promised to retain Judge 
Smith as Chief until his retirement into lifetime senior status at the 
end of his term appointment. Upon Chief Judge Smith's ``retirement,'' 
President Clinton named Judge Baskir the Chief Judge. Shortly after his 
inauguration, President George W. Bush summarily removed Judge Baskir 
as chief judge and installed Judge Damich as the Chief Judge.
  Last fall when the Democrats were in the majority, we took the 
exceptional action of quickly moving the nomination of Larry Block to 
the Court of Federal Claims at the request of the ranking Republican, 
Senator Hatch. At that time, I noted that we would expect fairness and 
consideration in return, including true bipartisan consultation with 
respect to Federal Court of Claims nominations. Despite our 
accommodation on Mr. Block's nomination, the White House refused to act 
on the nomination of Judge Sarah Wilson who, up until a few months ago, 
was already serving with distinction on the Court of Federal Claims. 
Judge Wilson is a well-respected and talented lawyer who graduated from 
Columbia Law School, clerked for a Federal judge, was a fellow with the 
Administrative Office of the Courts, and served in the Department of 
Justice and in a prior White House. Yet, the administration and the 
Senate Republicans refused to accommodate our request to consider her 
nomination for a continued position on the court.
  It troubles me that despite a long history of compromise and 
accommodation regarding appointments to this court, there has been no 
consultation with the Democratic leadership regarding the remaining 
nominations to the Court of Federal Claims. Instead, the White House 
proceeded as it does with most things--unilaterally. The same is true 
with respect to the Parole Commission, the Federal Election Commission 
and many other bipartisan boards and commissions.
  I can count on one hand the number of States that have any sort of 
bipartisan selection commission for their district court judges. The 
importance of such organizations is paramount. They ensure that 
nominees for judicial office are selected based upon professional merit 
and experience. The recommendations of such commissions have the 
support of members from their community on both sides of aisle. 
Accordingly, these bipartisan commissions preserve the independence and 
integrity of the judicial branch of government and ensure the fair and 
equal administration and enforcement of justice.
  Unfortunately, this President has thwarted the development of 
bipartisan boards and commissions for judicial appointments. The White 
House Counsel has indicated publicly that he does not favor bipartisan 
committees because they ``usurp the president's constitutional 
authority to choose judges.'' This unilateral and uncompromising view 
disregards the constitutional role of the Senate. It also fails to 
acknowledge that these commissions simply make recommendations to the 
President. They do not make nominations in lieu of the President. The 
administration's disdain for bipartisan commissions ignores past 
precedent and tradition.
  It is one thing for a President to appoint members of his Cabinet to 
carry out his political agenda but it should be different with respect 
to judicial appointments. When a President makes

[[Page S3021]]

nominations for positions to a co-equal branch of government, he should 
not be able to tip the scales of justice by packing the courts with 
ideologues who are selected to implement his political agenda. 
Recently, Walter Dellinger noted that the President's ``slate of 
nominees, considered as a whole, . . . [is] a list tilted to the right 
and from which any other views have been carefully culled.'' I agree 
that we need to broaden the slate. This could be best accomplished with 
the creation of new judicial selection commissions who could make 
recommendations to home State Senators and to the President.
  I urge the White House and Chairman Hatch to work with us to assemble 
the type of bipartisan panel that Senator Hatch helped assemble in 1997 
and 1998 to fill the remaining vacancies on the Court of Federal Claims 
in a way that respects the tradition of compromise and accommodation 
that has marked appointments to this court. I also look forward to 
working with Senate Republicans to preserve our constitutional role in 
advising the President on judicial nominations to all courts through 
the use of bipartisan selection commissions.
  Mr. SESSIONS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Marian Blank Horn, of Maryland, to be a Judge of the United States 
Court of Federal Claims? On this question, the yeas and nays have been 
ordered, and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Missouri (Mr. Bond), the 
Senator from New Mexico (Mr. Domenici), the Senator from Kentucky (Mr. 
McConnell), and the Senator from Alaska (Ms. Murkowski) are necessarily 
absent.
  Mr. REID. I announce that the Senator from New Jersey (Mr. Corzine), 
the Senator from Connecticut (Mr. Dodd), the Senator from Illinois (Mr. 
Durbin), the Senator from Florida (Mr. Graham), the Senator from 
Louisiana (Ms. Landrieu), the Senator from Connecticut (Mr. Lieberman), 
and the Senator from Georgia (Mr. Miller) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Connecticut (Mr. Dodd) and the Senator from Illinois (Mr. Durbin) would 
each vote ``aye.''
  The result was announced--yeas 89, nays 0, as follows:

                       [Rollcall Vote No. 38 Ex.]

                                YEAS--89

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dole
     Dorgan
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--11

     Bond
     Corzine
     Dodd
     Domenici
     Durbin
     Graham (FL)
     Landrieu
     Lieberman
     McConnell
     Miller
     Murkowski
  The nomination was confirmed.
  The PRESIDING OFFICER (Mr. Talent). Under the previous order, the 
President shall be immediately notified of the Senate's actions.

                          ____________________