[Congressional Record Volume 149, Number 65 (Monday, May 5, 2003)]
[Senate]
[Pages S5699-S5713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF DEBORAH L. COOK, OF OHIO, TO BE A UNITED STATES CIRCUIT 
                      JUDGE FOR THE SIXTH CIRCUIT

  The PRESIDING OFFICER. The hour of 12:45 having arrived, the Senate 
will proceed to executive session to consider Executive Calendar No. 
34, which the clerk will report.
  The assistant legislative clerk read the nomination of Deborah L. 
Cook, of Ohio, to be United States Circuit Judge for the Sixth Circuit.
  The PRESIDING OFFICER. The Senator from Ohio.

[[Page S5700]]

  Mr. DeWINE. Mr. President, it is my great honor to come to the Senate 
floor this afternoon to speak in favor of the nomination of Deborah 
Cook to sit on the Sixth Circuit Court of Appeals.
  Deborah Cook is from Akron, OH. She is currently serving her second 
term as an Ohio Supreme Court Justice, a post to which she was first 
elected in 1994.
  I will take a few minutes to tell my colleagues in the Senate about 
Justice Cook and why I am so pleased this afternoon to support her 
nomination.
  Justice Cook received her law degree in 1978 and an honorary doctor 
of law degree in 1996, both from the University of Akron. Prior to 
serving on the Ohio Supreme Court, she served on the Ohio Court of 
Appeals for the Ninth District from 1991 to 1994. And, from 1976 until 
1991, she worked for the Akron law firm of Roderick, Myers & Linton. 
She was the first female associate hired by the firm, later becoming 
the firm's first female partner.
  Justice Cook is an excellent judge and a gracious and giving 
individual who has dedicated a great deal of her personal time and 
energy to helping the underprivileged in her community and in the State 
of Ohio. First, let me tell my colleagues a little bit about her work 
as a judge.
  Justice Cook has been an appellate judge for over 12 years--4 years 
on the Ohio Court of Appeals and over 8 years on the Ohio Supreme 
Court. While Justice Cook was on the Ohio Court of Appeals, she 
participated in deciding over 1,000 cases. Overall, she had a very low 
reversal rate.
  She has worked on hundreds of additional cases in the Ohio Supreme 
Court. But rather than focus on these hundreds of cases, I would like 
to draw my colleagues' attention to just a small handful of Ohio 
Supreme Court opinions that have been considered by the United States 
Supreme Court, during Justice Cook's tenure. As my colleagues are 
aware, the U.S. Court reviews few State supreme court cases.
  But this statistic is still worth considering for Justice Cook. 
During her time on the Ohio Supreme Court, the U.S. Supreme Court has 
reviewed five Ohio Supreme Court decisions and has agreed with Justice 
Cook in all five of those cases.
  One of those cases was simply a unanimous Ohio Supreme Court decision 
affirmed by the U.S. Supreme Court 8 to 1. In the other four cases, 
Justice Cook has dissented in the underlying Ohio case. And, in each of 
these four cases, the U.S. Supreme Court reversed the Ohio Supreme 
Courts' majority opinion and reached the same conclusion as Justice 
Cook.
  These were not all just the close 5 to 4 decisions that we sometimes 
see in the U.S. Supreme Court. For example, in a fifth amendment self-
incrimination case, the Supreme Court sided with Justice Cook 9 to 0. 
Another case went 8 to 1, again siding with Justice Cook's dissent. So 
it is clear from this record that Justice Cook's decisions have been 
well founded.
  Another useful gauge of a sitting judge's abilities is the 
evaluations she gets from objective observers who watch the court on a 
day-to-day basis.
  In my home State of Ohio, the major newspapers closely watch our high 
Court. After observing Justice Cook on the Ohio Supreme Court for a 
full 6-year term, Justice Cook was endorsed by all the major newspapers 
in Ohio for her 2000 reelection campaign.
  These newspapers included the Cleveland Plain Dealer, the Columbus 
Dispatch, the Cincinnati Enquirer, the Akron Beacon Journal, the Dayton 
Daily News, and the Toledo Blade.
  Here's what several Ohio papers have said about her nomination to the 
Sixth Circuit. The Cincinnati Post wrote on January 8, 2003:

       Cook is serving her second term on the Ohio Supreme Court, 
     where she has been a pillar of stability and good sense. Her 
     role on that court--one, which in the last few years, has 
     repeatedly marched on 4 to 3 votes into the realm of policy 
     making--has often been writing sensible dissents.

  On December 29, 2002, insisting that the Senate Judiciary Committee 
act on Justice Cook, the Cleveland Plain Dealer wrote:

       Cook is a thoughtful, mature jurist--perhaps the brightest 
     on the state's highest court.

  The Akron Beacon Journal wrote on January 6, 2003:

       Those who watch the Ohio high court know Cook is no 
     ideologue. She has been a voice of restraint in opposition to 
     a court majority determined to chart an aggressive course, 
     acting as problem-solvers . . . more than jurists. In Deborah 
     Cook, they have a judge most deserving of confirmation, one 
     dedicated to judicial restraint.

  And, the Columbus Dispatch wrote on January 6, 2003:

       Cook's record is one of continuing achievement. . . . Since 
     1996, she has served on the Ohio Supreme Court, where she has 
     distinguished herself as a careful jurist with a profound 
     respect for judicial restraint and the separation of powers 
     between the three branches of government.

  Mr. President, these quotes are from papers across the political 
spectrum--all of which endorsed Justice Cook. As these comments make 
clear, Justice Cook is a talented, serious judge who works diligently 
to follow the law. At the same time, she also dedicates a great deal of 
her time to volunteer work and community service.
  Justice Cook has served on the United Way Board of Trustees, the 
Volunteer Center Board of Trustees, the Akron School of Law Board of 
Trustees, and the Women's Network Board of Directors. She was named 
Woman of the Year in 1991 by the Women's Network. She has volunteered 
for the Safe Landing Shelter and for Mobile Meals. She has served as a 
board member and then president of the Akron Volunteer Center.
  Furthermore, Justice Cook has served as a Commissioner on the Ohio 
Commission for Dispute Resolution and Conflict Management, where she 
focused on, among other things, truancy mediation for disadvantaged 
students.
  She has chaired Ohio's Commission on Public Legal Education and has 
taught continuing legal education seminars on oral argument and brief 
writing. I find it remarkable that Justice Cook has found the time for 
this level of commitment to her community--and I have yet to describe 
the most amazing commitment Justice Cook has made to helping the 
underprivileged in Ohio. Justice Cook believes that the ticket out of 
poverty is a quality education. And, over the years, in their everyday 
lives Justice Cook and her husband, Bob Linton, has come across hard 
working young people who are making an effort to improve their lives 
through education.
  Tashia Smith is one of those people. Justice Cook met her when Tashia 
was struggling to put herself through college at Kent State by working 
as a waitress. Justice Cook assisted her with tuition for several 
years. Today, Tashia is in her final year of nursing school, carrying a 
3.8 grade point average.
  Tara King is another of these students. With Justice Cook's help, 
Tara recently graduated from the University of Akron. She just enrolled 
in graduate school at Cleveland State University.
  After helping several students in this manner, Justice Cook and her 
husband decided they should structure their assistance so they could 
help more young people early on in their education.
  A little over 4 years ago, they started the ``College Scholars'' 
program with a group of 20 disadvantaged third graders from an inner 
city school. The students were selected to participate based on teacher 
recommendations, financial need, and level of family support. Justice 
Cook matched each of the students with a mentor in the community. The 
students meet with their mentors weekly and participate in other 
program activities.
  If the students maintain good grades and conduct through secondary 
school, Justice Cook and her husband will pay for 4 years of their 
tuition at any public university in Ohio. Let me repeat that--Justice 
Cook is going to pay for 4 years of college tuition for 20 
disadvantaged children.
  These activities demonstrate a commitment to the community and 
dedication to helping the disadvantaged that we would like to see in 
everyone. These are qualities that help make Justice Deborah Cook 
a great judge on the Federal bench. It tells us what kind of a person, 
what kind of human being she is. For these reasons and the other 
reasons I have outlined, I urge my colleagues to support her 
nomination.

  I add, on a personal note, I have known Justice Deborah Cook for many 
years. She is a fine individual. She is the type of person that should 
be on the Federal bench. She has a proven track record of fairness, of 
compassion, of competence. I would not be on the

[[Page S5701]]

Senate floor today if I did not trust her. I would not have recommended 
her name to the President of the United States if I did not have the 
utmost confidence in her ability.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). Who yields time?
  Mr. DeWINE. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeWINE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Madam President, I ask unanimous consent that any time on 
the quorum call be taken off both sides at this point.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Madam President, I rise to address the nomination of 
Deborah Cook to serve on the U.S. Court of Appeals for the Sixth 
Circuit. I welcome the opportunity to speak to the Senate, to express 
my very deep concerns about the commitment of this nominee to the 
interests of working families and to the underlying cause of fairness 
and justice.
  I want to say at the outset that I have the highest regard for my 
friend from Ohio, Senator DeWine. With his recommendations of a 
nominee, one has to give not only a first look but a second and a third 
because the good Senator is so highly regarded and respected here in 
the institution. Certainly anyone he supports has a very heavy 
presumption in their favor because of the high regard we have for 
Senator DeWine. So I acknowledge that at the outset.
  But I must say in reviewing the history of this nominee, there is a 
pattern of decisionmaking that is of very deep concern for the Senate 
and for all of us who want to make sure those sitting on the courts of 
appeal are going to be fair to workers and workers' rights in that 
district, that district which obviously has so many working families 
whose rights need to be reaffirmed at different times.
  I urge my colleagues to vote against the nomination of Deborah Cook 
to a lifetime seat on the U.S. Court of Appeals for the Sixth Circuit. 
Her record demonstrates the extreme length to which she will go to 
protect corporations and deny the rights of injured workers, victims of 
discrimination, religious minorities, schoolchildren, and others. She 
is the leading dissenter on the predominantly Republican Ohio Supreme 
Court, objecting repeatedly to decisions by that court that favor the 
rights of individuals. Often she stands alone as the only dissenter, 
and again and again her colleagues have criticized her for ignoring 
precedents, for manipulating the law to reach the results she wants. 
Her record is extreme, even in comparison with her Republican 
colleagues on the Ohio Supreme Court, and she consistently seems bent 
on narrowing laws intended to remedy violation of the rights of 
individuals.

  In cases involving workers' rights, her record is among the worst we 
have ever seen. Her defenders try to maintain a straight face when they 
say she is only impartially enforcing the law, but more than any other 
judge on her court, she seems to think that the law should almost 
always protect corporations and not injured workers. She consistently 
dissents from the majority and votes to protect corporations from 
liability when they harm their employees, and she has even tried to 
shield these corporations from liability when they attempt to cover up 
their malfeasance. The pattern is overwhelming.
  In 37 cases she has supported the rights of employees only 6 times, 
and in all but 1 of those 6 cases she was joining a unanimous court. 
Even where a Republican majority on the court rules in favor of the 
employee, she dissents almost 80 percent of the time. She has never, in 
any case we know of, dissented from a decision of the court in favor of 
an employee. In the majority of the cases where she dissents, she is 
the only dissenter or is joined by only one other member of the seven-
member supreme court.
  Her dissents take an extremely narrow view of workers' access to the 
courts. On more than one occasion she would have protected employers 
who were accused of lying to their employees. In one extreme case, in 
Davis v. Wal-Mart Stores, she would have penalized the employee when 
the store had covered up evidence that the workplace was unsafe. In 
that case, a Wal-Mart worker was killed operating a forklift at work. 
He was unloading a truck with the forklift when the truck suddenly 
pulled away from the loading dock. The forklift fell on him and crushed 
him to death.
  His wife brought a tort action to recover damages from Wal-Mart for 
her husband's death, and during the course of the proceedings on her 
case, Mrs. Davis discovered that Wal-Mart might have withheld evidence 
and provided false and misleading testimony. Wal-Mart representatives 
had denied under oath that they were aware of hazardous conditions at 
the loading docks, and had denied knowledge of incidents similar to 
those that caused her husband's death. As it turned out, Wal-Mart had 
improperly concealed documents on similar accidents and had instructed 
its representatives to lie about them.

  If Mrs. Davis had obtained this information sooner, she would have 
prevailed on some of her claims at the initial trial. With this new 
evidence, she filed a new claim, in which she alleged that the 
company's concealment, destruction of evidence and perjury had been 
used to limit her recovery on her prior claims. All except one of the 
members of the Ohio Supreme Court ruled that Mrs. Davis's claim that 
Wal-Mart had concealed and distorted evidence could proceed. One 
Justice said that concealing evidence as Wal-Mart did ``harms the 
sanctity of the judicial system and makes a mockery of its search for 
the truth.''
  Deborah Cook was the only member of the court to dissent from the 
holding that the case should proceed. She was the only member of the 
court to conclude that the company was not accountable for its 
misrepresentations of the evidence. Incredibly, her dissent would have 
had the effect of rewarding an employer who lied to cover up its wrong 
doing.
  Similarly, in Norgard v. Wellman, Cook wrote a dissent that would 
shield from liability an employer who lied to its employees about their 
exposure to beryllium on the job. Beryllium is a toxic chemical that 
causes a serious chronic illness, and exposure to it can be deadly.
  The worker in the case developed the disease. The company assured him 
that he was fine even though it had found through its examinations that 
he had a heightened sensitivity to beryllium. The company knew that its 
workers were being exposed to beryllium at the particular job site, and 
that they were becoming ill from the exposure, but the company 
concealed these facts from its workers. When the worker learned that 
the company had withheld information about exposure levels, air-
sampling and ventilation problems in the workplace, he filed a lawsuit.
  When the case came before the Ohio Supreme Court, the issue was 
whether the suit had been timely filed. The supreme court held that the 
suit was still timely, because his employer had concealed the beryllium 
exposure. It ruled that the time to bring suit begins to run not at the 
time when the worker becomes ill, but when he learned of his employer's 
deceit.
  Cook, however, rejected this sensible approach. She said that the 
period to file the suit began to run when the employee had first become 
ill--even though at that time the employee could not have known that 
his illness was caused by his unsafe workplace. Under Cook's approach, 
workers would be responsible for knowing whether or not their employers 
are lying to them. In her view, if an employer deliberately conceals 
information about safety violations, the worker has no effective 
remedy.
  Another shameful example of Cook's willingness to strip workers of 
their legal protections is the case Petrie v. Atlas Iron Processors 
Inc. Petrie

[[Page S5702]]

worked in a scrap-yard, and some of the yard's conveyor belts were in a 
fenced-in enclosure. Petrie was removing ice and debris from one of the 
machines when his glove was caught in the moving conveyor belt, and his 
finger was cut off.
  Petrie sought additional workers' compensation on the ground that his 
employer had violated specific safety requirements. Under Ohio law, he 
had a claim only if the yard's fenced-in enclosure could be considered 
a ``workshop.'' The Ohio Supreme Court found the answer so obvious that 
it wrote only a brief three-paragraph opinion holding that the area was 
a workshop and Petrie could proceed with his claim.
  Cook, however, wrote a two-page dissent--joined only by one other 
justice--insisting that because the machine was not ``within a 
building,'' it was not a workshop and the employee was not entitled to 
the protection of state safety rules. The cases Cook cited, however, 
did not hold that outdoor factory work was exempt from workshop safety 
rules. Nevertheless, Cook would have held that a scrapmetal conveyor 
belt in a fenced-in area, is not subject to workplace safety 
protections, just because there is no roof over this employee's head.
  There are many other examples of Cook's attempts to limit workplace 
protections. She has opposed allowing employees fired for reporting 
violations of federal occupational safety and health laws to sue under 
common law and statutory whistleblower protections. She wrote a lone 
dissent in the case of a railroad worker who had been repeatedly 
harassed and threatened on the job and required to work under unsafe 
conditions. The issue was whether the worker could bring suit under the 
Federal Employers' Liability Act. Cook alone would have barred the 
suit, despite the clear language of the statute.
  No Senate should confirm a judge so consistently hostile to 
protections for workers injured or killed on the job. In 2001, there 
were 5.2 million occupational injuries and illnesses in the private 
sector, and 6,000 deaths. Many workers in the four states covered by 
the Sixth Circuit--Kentucky, Michigan, Ohio, and Tennessee--are 
employed in manufacturing jobs. Often, the workers in such jobs are 
exposed to a high risk of injury or death in the workplace.
  The nation has made genuine progress in reducing injuries and 
fatalities, but only through careful enforcement of Federal and State 
safety standards. We rely on the courts to uphold these safety laws and 
give injured workers the chance to obtain compensation for their 
injuries. Yet Cook seems bent on denying workers their day in court 
whenever she can.
  Cook has also tried to limit the ability of students in public 
schools to vindicate their right to an adequately funded public 
education. The Ohio Constitution, like many State constitutions, 
guarantees all students what is called a thorough and efficient public 
education. In many states, public schools are severely underfunded, 
partly because of heavy reliance on local property taxes to fund 
education often leads to gross disparities in funding between school 
districts.
  In litigation challenging the constitutionality of Ohio's educational 
funding system, the Ohio Supreme Court found that many students were 
attending schools in dangerous disrepair and failed to meet minimum 
safety requirements. Half of Ohio's schools had unsatisfactory 
electrical systems, 70 percent lacked adequate fire alarm systems, and 
more than 80 percent lacked proper heating systems. In one school 
district, 300 students were hospitalized when carbon monoxide leaked 
out of heaters and furnaces. In another district, elementary schools, 
more than 100 years old, had floors so thin that a teacher's foot went 
through the floor.
  In another school, students were breathing coal dust from the coal 
heating system. The system was in such disrepair that the coal dust 
often covered students' desks after accumulating overnight. In another 
district, buildings were crumbling and chunks of plaster were falling 
from the walls and ceilings. In some districts, classes were held under 
leaking roofs and in former coalbins. Funding of teachers and supplies 
was also inadequate. Some districts had to ration basic supplies such 
as paper and chalk and even toilet paper.
  The majority of the Ohio Supreme Court found that ``school districts 
were starved for funds, lacked teachers, buildings and equipment, had 
inferior educational programs, and their pupils were being deprived of 
educational opportunity.'' The majority of the supreme court found 
that.
  The Ohio Supreme Court ruled that the education funding system was 
unconstitutional and had to be changed, but not Ms. Cook. She 
dissented. Despite the shameful conditions in some schools, and the 
large disparities that existed between school districts, she insisted 
that Ohio citizens did not have a right to go to court to enforce the 
State constitution's guarantees. On at least four separate occasions, 
she dissented from the majority of the court which has repeatedly ruled 
that the legislature must fill the Ohio Constitution's commitment.
  In her view, the courts had no authority to define the scope of the 
Ohio Constitution's provisions on funding education. She says that as 
long as the legislature provides at least some funding, the 
constitution is satisfied. As the court's majority has said:

       [D]eference to the corresponding branches of government 
     does not mean abdication.

  The court's majority specifically criticized the dissent failing to 
face up to the evidence of the school problems. As the court majority 
wrote:

       The dissent recognizes that it could not in good conscience 
     address these facts and then conclude that Ohio is providing 
     the opportunity for a basic education. Therefore, it does the 
     only thing that it could do: it ignores them.

  Few issues are more important to the future of our country than 
ensuring a good education for our children. Courts, of course, do not 
have the principal responsibility to remedy all these problems. But a 
majority of the Ohio Supreme Court clearly ruled that the State 
constitution gave the Ohio courts a role in assuring that a State 
provides a basic education to its children. But Cook said no, as she 
always tries to do in such cases.
  In another basic area discrimination case, Cook again seeks to narrow 
remedies and reverse jury awards. The Nation has made great progress in 
combating discrimination against minorities and women, but 
discrimination and harassment continue to exist. Victims of 
discrimination rely on courts to remedy such discrimination when other 
avenues have failed.
  Cook has joined dissents to protect employers from liability in 
harassment cases, no matter how flagrant the violation. She has voted 
to reverse jury verdicts for employees in age discrimination cases and 
gender discrimination cases, despite the high presumption of the 
validity of those verdicts on appeal and the clear and abundant 
evidence of discrimination.
  In a case on religious freedom, she adopted a position opposed by all 
of her colleagues on the court. A Native American employee of a State 
agency was asked to cut his hair by his employer. His religious beliefs 
prevented him from doing so, and he tried to be accommodating by 
pinning his hair under his cap. The Ohio Supreme Court accepted that 
accommodation, but Cook alone dissented. Despite previous Ohio Supreme 
Court decisions, Cook wanted a higher standard before plaintiffs could 
prevail in cases involving violations of religious freedom.
  For reasons such as these, Cook's nomination has generated intense 
opposition from groups that know her record and that represent women, 
racial minorities, labor, and consumers. I have more than 100 letters 
in opposition. I ask unanimous consent to have relevant material 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       National Employment Lawyers


                                                  Association,

                                                 January 24, 2003.
     Hon. Orrin Hatch,
     Chairman, Senate Judiciary Committee, Hart Office Building, 
         Washington, DC.
     Hon. Patrick Leahy,
     Senate Judiciary Committee, Russell Senate Office Building, 
         U.S. Senate, Washington, DC.
       Dear Senators Hatch and Leahy: I am writing as President of 
     the National Employment Lawyers Association to urge the 
     Senate Judiciary Committee to reject Justice Deborah Cook's 
     nomination for appointment to the Sixth Circuit Court 
     Appeals. NELA is

[[Page S5703]]

     the country's only professional organization that is 
     exclusively comprised of lawyers who represent individual 
     employees in cases involving employment discrimination and 
     other employment-related matters. NELA and its 67 State and 
     local affiliates have more than 3000 members. The Ohio 
     Employment Lawyers Association is among NELA's largest 
     affiliates.
       Justice Cook's record and temperament display all the 
     characteristics of a bad judge. She is dogmatic, often in an 
     unprincipled manner, insensitive and biased in her decision-
     making. Our Ohio affiliate joined several other statewide 
     organizations in opposing Justice Cook's nomination. I have 
     attached a copy of the letter these Ohio organizations have 
     sent to the Committee. Their description of Justice Cook is 
     apt:
       ``What is most striking about Justice Cook's career on the 
     bench, particularly her tenure on our state Supreme Court, is 
     her heartlessness. She repeatedly displays a cold 
     indifference to the most tragic situations confronted by the 
     individuals who appear before her. Worse, she routinely 
     adopts strained or extreme legal propositions to deny 
     meaningful relief to those most in need of justice from our 
     courts. Her body of opinions demonstrates that she lacks the 
     compassion, sensitivity and legal integrity which are the 
     hallmark of a jurist who enforces both the letter and spirit 
     of the law. Any objective reading of her decisions, makes it 
     clear she is not a fair-minded judge.''
       Although this letter is sent in my capacity as president of 
     NELA, I also write as an Ohio lawyer who has appeared before 
     the Ohio Supreme Court many times during my 27 years of 
     practice. I have represented a wide array of individuals and 
     organizations in the Court both before and during Justice 
     Cook's tenure as a Justice. Justice Cook's anti-civil rights, 
     anti-worker and anti-consumer record on the Court is 
     unparalleled.
       Justice Cook is the most frequent dissenter (often the lone 
     dissenter) on a Court consisting of five (5) Republicans and 
     only two (2) Democrats. Justice Cook has taken the position: 
     (1) that even overt racist, sexist and ageist statements and 
     epithets are irrelevant in most discrimination cases. See 
     Byrnes v. LCI Communications Holdings Co. (1996), 77 Ohio St. 
     3d 125, 672 N.E. 2d 145; (2) that blind people are not 
     qualified because of their disability to go to medical school 
     notwithstanding the testimony of successful blind 
     practitioners to the contrary. See, Ohio Civil Rights Comm'n. 
     v. Case Western Reserve University (1996) 76 Ohio St.3d 168, 
     666 N.E.2d 1376; (3) that an employer cannot be sued for 
     destroying, concealing or lying about evidence. See her lone 
     dissent in Davis v. Wal-Mart Stores, Inc, dba Sam's Club 
     (2001), 93 Ohio St.3d 488, 756 N.E.2d 657; (4) that railroad 
     workers subjected to severe harassment, including threats of 
     serious physical injuries, cannot pursue a claim under the 
     Federal Employers' Liability Act. See her lone dissent in 
     Vance v. Consol. Rail Corp., (1995) 73 Ohio St.3d 222, 625 NE 
     2d 776; (5) that an employer can avoid liability by lying to 
     its employees about the presence of dangerous chemicals in 
     the workplace so that fatally affected employees will miss 
     applicable time limits for filing an action against the 
     employer. See Norgard v. Brush Wellman, Inc. (2002) 95 Ohio 
     St.3d 165; (6) that employers can disregard their own 
     handbooks and promises to their employees with impunity. See 
     her lone dissent in Wright v. Honda of America Mfg., Inc. 
     (1995) 73 Ohio St.3d 571, 653, N.E.2d 381.
       In light of the letter signed by Denise Knecht, chairperson 
     of our Ohio affiliate, which reviews more of Justice Cook's 
     opinions in particular cases, I will not detail here the many 
     unfathomable and unjust votes and opinions issued by Justice 
     Cook.
       At the request of our Ohio affiliate, my firm undertook a 
     study of all of the employment decisions which were decided 
     on the merits by the Ohio Supreme Court during Justice Cook's 
     tenure. The purpose of the study was to do a complete review 
     of Justice Cook's employment law record (including civil 
     rights cases) to measure the full extent of Justice Cook's 
     propensities in these cases. The review covered all 
     employment related cases other than workers' compensation 
     matters. The cases reviewed included discrimination actions, 
     intentional workplace torts, breach of contract suits, 
     promissory estoppel claims, whistle-blower cases, public 
     policy wrongful discharge cases and alleged violations of 
     statutes governing procedures for termination of public 
     employees.
       During Justice Cook's tenure on the Court there were 37 
     such employment cases in which the Court issued decisions on 
     the merits. Attached to this letter are the results of the 
     study. The study demonstrated the following about Justice 
     Cook's record: (1) Justice Cook has never dissented from any 
     decision of the Court favorable to an employer; (2) Justice 
     Cook dissented 23 times, in cases in which the Court ruled in 
     favor of an employee (or 79 percent of the time); (3) Justice 
     Cook only voted in favor of an employee on 6 occasions 
     (notably, 5 of those 6 cases were ``no brainers'' in which 
     the Court decision for the employee was unanimous); (4) 
     Justice Cook has voted in favor of an employee in only 1 case 
     in which there was a split vote of the Court in favor of the 
     employee (that case, not surprisingly, was a 6 to 1 decision 
     for the employee); (5) Of Justice Cook's 23 dissents from a 
     ruling in favor of an employee, she was either the lone 
     dissenter or joined by only one other Justice 61 percent to 
     the time; (6) Overall, Justice Cook voted in favor of 
     employers in 83 percent of the cases and, as noted above, her 
     few votes in favor of employees were almost always in cases 
     in which the Court was unanimous.
       Both Justice Cook's actions and her words demonstrate that 
     she is not fit for a lifetime appointment as a federal judge. 
     As a state court judge she voted to weaken protections for 
     working Americans, undermined equal employment opportunity 
     laws and spurned the pleas of those who have suffered 
     catastrophic injuries caused by intentional misconduct of 
     their employers.
       Judges must be fair-minded and impartial. Justice Cook 
     lacks both of these traits. Her hostile an extreme views 
     concerning laws governing the workplace have no place on the 
     Federal bench. Her nomination is a disservice to working men 
     and women. Her appointment will only serve to encourage 
     unscrupulous and prejudiced employers.
       I will be happy to provide any further information that the 
     Committee may desire concerning Justice Cook's record.
           Very truly yours,
                                              Frederick M. Gittes,
                                                        President.

  Mr. KENNEDY. The groups opposed to her nomination include the Ohio 
Organization for Women, the National Employment Lawyers Association, 
and the AFL-CIO. Many of those who have written to oppose her are 
lawyers who have participated before her and are familiar with her 
record and approach. Their message is clear: Justice Cook displays a 
hostility to workers' rights, consumer rights, and civil rights, and 
she lacks the fairness and balance we expect of our Federal judges.
  Many of our Republican colleagues say that when we oppose nominees 
such as Cook, we are somehow obstructing the President's right to put 
his nominees on the Federal courts. If fact, the Senate has confirmed 
120 of President Bush's judicial nominees--100 of them when Democrats 
controlled the Senate. Today, our Federal courts have the lowest 
vacancy rate in more than a decade.
  When nominees' records raise concern about whether they will be fair, 
whether they will enforce Federal rights and protections, the Senate 
does have the constitutional right to withhold our consent. The 
Constitution is clear that the Senate's role is not simply to 
rubberstamp nominees. The Framers clearly intended to avoid vesting too 
much power in the President. The role of the Senate on Presidential 
nominations is one of the fundamental checks and balances in the 
Constitution. From the earliest days of the Nation, the Senate has 
exercised its duty of advice and consent, rejecting Presidential 
nominees it has found unsuitable.
  Far too many of President Bush's nominees are controversial and 
divisive. They are clearly part of a plan to pack the Federal courts, 
particularly the courts of appeals, with judges who will advance an 
ideological agenda that is hostile to civil rights, hostile to workers' 
rights, hostile to environmental protections, and hostile to the right 
to privacy and a woman's right to choose.
  We in the Senate do not have to go along for the ride. We should have 
our constitutional responsibility to safeguard the independence of the 
judiciary, and to ensure that the courts are not stacked with judges as 
a part of a White House master plan to tilt the Federal courts as far 
right as possible.
  Deborah Cook's record demonstrates she lacks the fairness the Nation 
expects from the judiciary, and I urge the Senate to reject her 
nomination.
  I have a number of items. I will not take a great deal of time, but I 
will read excerpts from a few of these letters. This one is from the 
National Employment Lawyers Association.

       I am writing as President of the National Employment 
     Lawyers Association to urge the Senate Judiciary Committee to 
     reject Justice Deborah Cook's nomination for appointment to 
     the Sixth Circuit Court of Appeals. NELA is the country's 
     only professional organization that is exclusively comprised 
     of lawyers who represent individual employees in cases 
     involving employment discrimination and other employment-
     related matters. NELA and its 67 state and local affiliates 
     have more than 3000 members. The Ohio Employment Lawyers 
     Association is among NELA's largest affiliates.
       Justice Cook's record and temperament display all the 
     characteristics of a bad judge. She is dogmatic, often in an 
     unprincipled manner, insensitive and biased in her decision-
     making.

  And he continues:

       Justice Cook's anti-civil rights, anti-worker and anti-
     consumer record on the Court is unparalleled. . . .
       Both Justice Cook's actions and her words demonstrate that 
     she is not fit for a lifetime appointment as a Federal judge. 
     As a State

[[Page S5704]]

     court judge she voted to weaken protections for working 
     Americans, undermine equal employment opportunity laws and 
     spurned the pleas of those who have suffered catastrophic 
     injuries caused by intentional misconduct of their employers.
       Judge's must be fair-minded and impartial. Justice Cook 
     lacks both of these traits. Her hostile and extreme views 
     concerning laws governing the workplace have no place on the 
     federal bench. Her nomination is a disservice to working men 
     and women. Her appointment will only serve to encourage 
     unscrupulous and prejudiced employers.

  These are the organizations, the lawyers who represent workers who 
have been suffered injury and have been discriminated against. This is 
the national organization. This is as strong a letter as we have 
received in opposition to a judge by the lawyers who have represented 
workers who have been before that court. That is a powerful commentary.
  We also have a letter from the Ohio Academy of Trial Lawyers:

       I write to you on behalf of the Academy . . .
       Throughout Justice Cook's tenure, I and numerous other 
     Academy members have had a first hand opportunity to observe 
     Justice Cook's temperament, demeanor and decision making as a 
     member of the Ohio Supreme Court. Our observations of her 
     record demonstrate to our Association that Justice Cook is 
     willing to disregard precedent, misinterpret legislative 
     intent and ignore constitutional mandates in an effort to 
     achieve a result that favors business over consumers. Justice 
     Cook's personal background is from big business and she has 
     allowed her background to bias her decision making. She has 
     consistently in our view voted to limit citizens' access to 
     the courts and routinely articulated positions which would 
     leave members of the public without remedies.
       In our view, Justice Cook is among the most conservative 
     activist justices who have served on the Court.
       Our Court is viewed by most objective observers as moderate 
     and bipartisan. However, the Court does have extremely 
     conservative Republican members. Justice Cook is to the right 
     of all of them. She has authored 313 dissents, more than any 
     other Justice.

  Then it continues:

       Another reason for the Academy's concern about Justice Cook 
     stems from her decisions in the area of basic constitutional 
     rights. Justice Cook issued a sole dissent in a religious 
     free exercise case that would have seriously undermined key 
     rights provisions of our Ohio Constitution.
       Another example of Justice Cook's lack of commitment to 
     constitutional principles, including due process, can be 
     found in the Bray v. Russell decision. In Bray, Justice Cook 
     dissented from a 5-2 decision striking a state statute which 
     empowered the patrol board add ``bad time'' to a prisoners' 
     sentencing punishment of misconduct occurring during 
     imprisonment.

  It continues along:

       . . . there is hardly a case in which Justice Cook does not 
     side with the insurance company over its policyholder no 
     matter how outrageous the circumstances.
       . . . Justice Cook is not only out of touch with many of 
     the core values shared by most Americans but she lacks the 
     proper judicial temperament and a meaningful sense of 
     justice. She does not afford individual Ohioans a fair 
     opportunity to be heard by an impartial adjudicator. She 
     neither deserves nor is she qualified for a lifetime 
     appointment to the Sixth Circuit Court of Appeals. Her 
     presence on that Court would be even more harmful to the 
     public as she would turn many balanced panels toward extreme 
     positions which will jeopardize access to the courts, civil 
     rights and equal justice. For these reasons, we ask the 
     Committee to carefully study Justice Cook's decisions in 
     their entirety before any vote . . .

  We have given some examples of cases. I may have the opportunity to 
do that a little later in the afternoon.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Madam President, I ask unanimous consent that during 
consideration of the nomination, the time during all quorum calls be 
equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Madam President, I certainly have a great deal of respect 
for my friend and colleague from Massachusetts. We have discussed this 
nomination in the Judiciary Committee. We are continuing our discussion 
on the Senate floor today. I would like to respond to a few of his 
comments.
  My colleague has stated Justice Cook has been a dissenter on the Ohio 
Supreme Court. That certainly is true. She has been a dissenter. I am 
not sure that is a sin. I am not sure that is a reason someone should 
not be confirmed by this body. If that was the criteria for turning 
someone down, some of our greatest justices would not be on the Supreme 
Court, would not have been confirmed, nor would be on the Federal 
bench.
  Justice Cook has had five cases where the Ohio Supreme Court has been 
reviewed by the U.S. Supreme Court. In all five of those cases, the 
Ohio Supreme Court has agreed with Justice Cook. It is interesting that 
in four of those cases, Justice Cook was a dissenter. Yes, she was a 
dissenter in the Ohio Supreme Court. The case went up to the U.S. 
Supreme Court and the U.S. Supreme Court said the majority on the Ohio 
Supreme Court was wrong. But Justice Cook, the dissenter, was right. So 
the dissenter, Justice Cook, at least according to the highest Court in 
this country, the U.S. Supreme Court, was right.
  As I have outlined, for some of those decisions by the U.S. Supreme 
Court, it was not even a close call. So much for that horrible label of 
being a dissenter.
  My colleague and friend from Massachusetts has talked about several 
cases. I would like to talk about them as well. As the man on the radio 
says: ``to tell the rest of the story.''
  It has been charged that in the case of Davis v. Wal-Mart, Justice 
Cook voted to shield corporations from the legal consequences of their 
action. It has been asserted Justice Cook's dissent in that case would 
have allowed Wal-Mart to get away scot-free. At least that seems to be 
what has been asserted. But that is simply not what the facts are. In 
fact, there were two separate legal actions in Davis v. Wal-Mart. We 
really only hear about one.
  In the first case, Justice Cook did not intervene, and Mrs. Davis 
received almost $3 million. In the second case, when Mrs. Davis 
attempted to get additional payment for the same event, Justice Cook 
did vote against her position based on a well-known legal principle.
  Let me tell the story. The facts in this case involved a terrible 
incident in which Mr. Davis, a Wal-Mart employee, was killed on the 
loading docks while at work. Mrs. Davis sued Wal-Mart, and she won. She 
won a jury verdict of $2 million because there was evidence that Wal-
Mart had failed to provide a safe working environment for Mr. Davis. In 
addition, the trial court found Wal-Mart had attempted to hide evidence 
during the trial and, as punishment for that, the trial court awarded 
interest on the $2 million to Mrs. Davis covering the time from when 
the case was first filed to the time when the jury found for Mrs. 
Davis.
  Wal-Mart's appeal at the court of appeals failed. The Ohio Supreme 
Court, including Justice Cook, declined to even consider Wal-Mart's 
appeal of that decision. So Wal-Mart was punished. Mrs. Davis had her 
day in court and won a significant verdict plus interest. That is what 
Justice Cook found.
  As I noted earlier, the interest award was on the $2 million during 
the entire time the case was pending. I believe it was about 4 years' 
worth of interest. I haven't done the math, but it must have been about 
$800,000 in interest during that period of time--roughly that. Justice 
Cook did not affect that verdict in any way. So that was the first case 
in which Mrs. Davis received approximately $3 million, as she should 
have.
  The unfounded complaints about Justice Cook are based on a second 
case against Wal-Mart that was filed by the plaintiff's lawyer. In the 
second case, the plaintiff's lawyer filed a new lawsuit claiming Wal-
Mart had covered up evidence during the first trial. Mrs. Davis lost 
her second case at the trial court because that judge found all the 
supposedly new evidence was discovered during the original case, and 
Wal-Mart had already been punished for covering up the evidence. 
Specifically Wal-Mart had been punished by the award of that interest 
money, approximately $800,000.
  So just to summarize, we have a case in which Wal-Mart engaged in 
wrongful conduct both at its workplace and in defense of a lawsuit. 
Wal-Mart was then punished for wrongful conduct in both instances.
  Justice Cook in no way interfered with any of that process or 
punishment. After the jury verdict and after the favorable decision on 
interests were final, the plaintiff's lawyers tried to take a second 
bite of the apple. Not surprisingly, they lost the second case at the 
trial court. The plaintiff's lawyers appealed the loss, and a majority

[[Page S5705]]

of the supreme court overturned the trial court and ruled in favor of 
Mrs. Davis.
  The entire supreme court, including Justice Cook, agreed on the legal 
standard to be applied that such new claims could be brought only if 
new evidence of wrongful conduct was discovered. The majority of the 
court said, though, there was new evidence, but they never said what 
they thought was new. In contrast, Justice Cook agreed with the trial 
court judge that there was no new evidence. So Justice Cook said there 
was no new evidence and applied the well-known doctrine of res 
judicata. In other words, because the issue had already been decided, 
the case could not be retried.
  Reasonable people, reasonable jurists--a disagreement. Justice Cook 
and the trial court judge agreed; the rest of the supreme court were on 
the other side. Somehow this agreement about a technical legal issue 
has been turned into an argument that somehow Justice Cook was 
attempting to shield Wal-Mart and undercut the rights of the plaintiff 
after Wal-Mart had already been ordered to pay Mrs. Davis $2 million 
plus interest.
  Those are the facts. That is the rest of the story.
  Let's turn to another case that was cited by my friend from 
Massachusetts, Norgard v. Brush Wellman. Norgard was another tragedy, a 
tragedy about an individual who contracted chronic beryllium disease 
while he worked for Brush Wellman. The facts of the case are egregious, 
especially facts that Brush Wellman withheld information about the 
causes of the disease.
  The legal issue, however, was a simple one. It was a statute of 
limitations case. A statute of limitations, of course, as we know, is a 
time within which an individual has to file a claim. In Ohio, the 
statute of limitations is, as it is in every State, set by the State 
legislature. The statute of limitations for this type of case in Ohio 
set by the legislature is 2 years.
  As in most States, there is an exception to the statute of 
limitations called the discovery rule. That rule provides that the 2 
years does not start until an injured party discovers he is injured and 
knows the source of the injury.
  In this case, the evidence before the court showed Mr. Norgard knew 
he was injured and that his injury was caused by his exposure to 
beryllium at work. He knew that at the latest by August of 1992 when he 
was formally diagnosed by a doctor.
  Even though the company had tried to hide evidence from Mr. Norgard, 
in a legal sense, it really did not make a difference. He still knew 
about his exposure by August of 1992. The company's conduct, though 
horribly reprehensible, did not change the legal fact that Mr. Norgard 
discovered his illness and the source of his illness. Accordingly, the 
2-year statute of limitations required the lawsuit to be filed by 
August 1994. Instead, tragically, Mr. Norgard did not file his claim 
until 1997, more than 2 years after his time to do so expired. After 
the case was filed, the trial court applied the statute of limitations 
and granted summary judgment against Mr. Norgard.
  We know what summary judgment is. It is a ruling that rejects a 
party's claim without even going to trial. Because summary judgment 
circumvents the trial, under the law, a court can only grant summary 
judgment motions if it finds the claimant cannot possibly win even if 
it gives the plaintiff every benefit of the doubt.

  In this instance, the court had to consider all the allegations 
against Brush Wellman to be true, including the allegations that Brush 
Wellman outright lied to Mr. Norgard about his exposure to beryllium. 
They had to accept those as true.
  That is what happened in this case. The trial judge gave Mr. Norgard 
the complete benefit of the doubt to which he legally was entitled. In 
spite of what we all think about this horrible conduct by Brush 
Wellman, the trial judge thought he had no choice but to follow the 
laws laid down by Ohio's legislature and grant summary judgment.
  As I noted earlier, legally, unfortunately, it did not make a 
difference that Brush Wellman had tried to hide the facts. Norgard 
still knew about his exposure as a fact. So he still had to file his 
claim by August of 1994.
  The court of appeals unanimously upheld the trial court's decision. 
Justice Cook and two other Ohio Supreme Court justices simply applied 
the statute of limitations and upheld the decisions of the trial court 
and the court of appeals.
  A four-judge majority in the Ohio Supreme Court was troubled by the 
facts of the case and decided to follow their policy preferences. The 
new result was one that was favorable to the Norgard family.
  This is what the Akron Beacon Journal had to say about the case:

       In her dissent, Cook did not carry an ideological banner 
     cold heartedly proclaiming the company above all. She has 
     sided with workers in many cases. In this instance, she 
     followed the law. Justices do not have a task of changing the 
     statute of limitations. That job belongs to the legislature.

  Madam President, I ask unanimous consent to print in the Record the 
Akron Beacon Journal editorial about this case.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Akron Beacon Journal, Feb. 27, 2003]

                            Cook and the Law

       The demonization of Deborah Cook has reached full froth. So 
     much for assessing a judicial nominee on her record.
       The Senate Judiciary Committee is expected to vote this 
     morning on the nomination of Deborah Cook to sit on the 6th 
     U.S. Circuit Court of Appeals in Cincinnati. Almost two years 
     have passed since she was first tapped by President Bush to 
     join the federal bench. The delay reflects understandable 
     payback from Democrats who watched strong nominees of Bill 
     Clinton linger for longer as Republicans played political 
     games. Unfortunately, part of the game played by both parties 
     and their allies involves the crude caricature (and worse) of 
     judicial nominees.
       A fresh example of the distortion and even recklessness can 
     be found on today's Commentary page. Adam Cohen, an editorial 
     writer for the New York Times, delivers a slashing critique 
     of the Cook record as a justice on the Ohio Supreme Court the 
     past eight years. Too bad his assessment lacks the necessary 
     context, let alone a full grasp of the issues at work in the 
     cases he discusses.
       Cohen notes ``the predominantly Republican court'' and 
     later adds that Cook ``frequently breaks with her Republican 
     colleagues.'' The objective is to portray the justice, ``the 
     court's most prolific dissenter,'' as extreme, even for a 
     Republican court. Those who pay cursory attention to the Ohio 
     Supreme Court know that party labels do not tell the story of 
     recent years.
       Two of the Republicans have been among the most liberal 
     members, siding regularly with the two Democrats to form a 
     majority in such areas as employment and tort liability law. 
     To say the court is predominantly Republican may be 
     convenient. It doesn't add to an understanding of Cook.
       We have noted in the past our sharp disagreements with 
     Cook, especially in the landmark school-funding case. What 
     offends in the current confirmation process is the attempt to 
     demonize the Akron resident, arguing (as Cohen does) that 
     ``often she reaches for a harsh legal technicality to send 
     a hapless victim home empty-handed,'' that she shills for 
     ``big business and insurance companies.''
       Actually, the description is funny, in view of the mish-
     mash the ``bipartisan'' majority made of insurance law in the 
     state. Cook has been a frequent dissenter. That doesn't mean 
     she stands alone. Cohen addresses a half-dozen cases. In 
     four, Cook sided with the rulings of both the trial court and 
     the state appeals court. In the remaining two, she would have 
     upheld the trial court or the appeals court.
       Were these courts reaching for ``a harsh legal 
     technicality''? Is there a vast right-wing conspiracy? Sorry, 
     not in Ohio. If anything, Cook and two Republican colleagues 
     (Chief Justice Thomas Moyer, ideologue?) often objected to 
     the majority departing from precedent, hardly a radical 
     position.
       Cook critics overlook the majority opinion she wrote 
     rejecting the claims of employers and concluding that 
     punitive damages are available to workers who have suffered 
     discrimination in the workplace. The opinion reveals much 
     about the Cook judicial philosophy. She precisely examined 
     legislative intent in crafting the law.
       That is the Cook familiar to many Ohioans. She gives great 
     deference to the legislature. She reflects the principle that 
     this is a nation of laws, not of men or women.
       Who doesn't sympathize with David Norgard, a worker exposed 
     to beryllium on the job who has been ailing for two decades? 
     The issue before the Ohio Supreme Court was whether Norgard 
     filed suit within the statute of limitations. The majority 
     ruled he had. Cook dissented.
       Cohen suggests Norgard knew little about his illness 
     because the company stonewalled. In truth, Norgard knew for 
     years. He sought advice about hiring an attorney. The trial 
     court dismissed his case on summary judgment. The appeals 
     court unanimously upheld the lower court. Cook objected to 
     the majority casting aside settled law on the statute of 
     limitations. Her interpretation followed the practice of 
     courts across the country.

[[Page S5706]]

       The ruling of the Ohio Supreme Court in the case of Phyllis 
     Ruth Mauzy provoked cries of amazement in courthouses. Cook 
     dissented from the majority's far-flung and poorly reasoned 
     departure from the way Ohio and almost every other state 
     applied federal civil-rights law. Again, Cook wasn't by 
     herself. She argued the mainstream interpretation.
       The impression promoted by Cohen is that Cook is results-
     oriented, serving corporate masters, denying the little guy 
     his due. Read the cases cited in the Cohen column and many 
     others, and the conclusion is plain: Cook criticizes the 
     majority for bending the law to fit its desired result.
       We share concerns about Bush nominees who ``will radically 
     reshape the federal judiciary for a generation'' (as Cohen 
     puts it). Jeffrey Sutton, another selected to sit on the 
     federal appeals court in Cincinnati, may give too little 
     deference to legislative intent. Its the argument that Cook 
     gives too much? A silly argument? It is almost as silly as 
     surveying the many Bush nominees and concluding that Cook 
     offers reason for Americans to be ``very worried.''
       In this crowd, she is reassuring.
       Other nominees deserve harsh words. Yet, in seeking to 
     demonize Cook, critics risk their credibility. When trouble 
     really enters the committee room, the howls will be dismissed 
     as the usual fare. That ill serves the federal judiciary. The 
     Adam Cohens could learn something from Deborah Cook. They 
     could argue their case more carefully.

  Mr. DeWINE. This case was not about Justice Cook standing up for big 
business. This case was about a very specific legal question: The 
statute of limitations for this type of lawsuit in Ohio. Justice Cook 
interpreted the law as it was written by the Ohio Legislature. That was 
her job as a supreme court justice, and she did her job.
  Whether we like the law or not, whether the legislature was right or 
not, the justice followed the law, and that is a simple fact.
  My friend from Massachusetts has talked about the school funding 
decision, a case that in Ohio is referred to as the Rolf decision.
  It may surprise my friend from Massachusetts and I may surprise some 
of my friends from Ohio when I say that I disagree with Justice Cook on 
that case. I did not hear all the evidence, but I suspect if I had been 
on the court, I probably would have ruled the other way. But I think my 
friend is confusing what was really in front of the court because it 
was a tough case.
  The Ohio Supreme Court is not a superlegislature, and the decision in 
front of the supreme court was not whether they liked the way Ohio was 
funding the schools or whether it was the best way or whether it was 
the fairest way or whether it was constitutional.
  That, I would submit, was a very tough decision. The Ohio Supreme 
Court talks about school funding in these terms and the obligation of a 
State. It says the State has the obligation to provide a thorough and 
efficient education for the children of the State. That is the 
constitutional obligation.
  In a similar case, I believe in 1979, if I have my date correct, the 
Ohio Supreme Court had ruled that Ohio was providing a constitutional 
education for all of the children. Most observers of the court, most 
observers of education in Ohio would say that things had not gotten 
more unconstitutional in that period of time since 1979. In fact, 
people would argue that, if anything, it had gotten better as far as 
more equity since 1979.
  In a sense, Justice Cook's decision when she dissented was consistent 
with prior decisions of the Ohio Supreme Court. So while she was 
dissenting in this case, while she was not in the majority, it was 
certainly not an unreasonable decision. It was a decision that was 
consistent with prior precedent of the court. So it was not a decision 
that was in any way out of bounds.
  I will speak later as our debate continues, but I conclude by again 
talking about my great admiration for Justice Cook. I have known 
Justice Cook for many years. I know her as an individual. I know her as 
a public official in the State of Ohio. She is a person of great 
personal integrity and honesty. In the 2 years she has been nominated 
for this position, I have had the opportunity to read many of her 
cases. The one thing that is very clear when one reads her decisions is 
this is someone a person would want deciding their case, someone who 
does not have an axe to grind, someone who is very deferential, 
frankly, to a legislature. I say to my colleagues on the other side of 
the aisle who are concerned about activist judges, she is someone who I 
believe will be deferential, as she was to the Ohio Legislature, and 
who will respect the authority of the legislative body; someone who 
will be deferential within the proper constitutional framework and 
bounds to the U.S. Congress and who will understand the separation of 
powers between the different branches of Government. This is someone 
with great integrity, great honesty, and someone who will be a fine 
Federal judge.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I listened carefully to the comments of 
my friend, Senator DeWine. No one is suggesting in the cases that I 
mentioned, which were cases where she was a dissent, that they were 
overturned by the Supreme Court of the United States. I listened 
carefully to his explanation of these cases.
  To summarize very quickly, in the Wal-Mart case, it is difficult for 
me to understand how Cook's position in the Wal-Mart case is 
defensible. Here is a widow who was trying to move forward on certain 
claims but could not because Wal-Mart had hid the evidence, and Cook 
was the only one who dissented. That is the bottom line. That is the 
bottom line of the case. She is the only one who dissented.
  In the Norgard case, the employee did not know that he could sue and 
he did not know he had a claim because the employer had lied. She 
dissented, making it harder for the employees to recover.
  These are just two examples, but to come back to the earlier point, 
if we look over the history of her dissents, we will find that when the 
Ohio Supreme Court dissented--or when the Ohio Supreme Court ruled for 
the employees, which was not a great number of times, but whenever they 
did, she dissented from that 80 percent of the time. Even when the 
court ruled for the employees, she dissented 80 percent of the time.
  Justice Cook never dissented from any decision of the court when it 
favored the employer. These are statistics. The examples I have cited 
are illustrative of a series of instances where the rights of workers 
were not adequately recognized or respected and where she took a very 
extreme position, in many of these cases in isolation. In some, she was 
joined by other members.
  I believe there is a consistency and a pattern of insensitivity in 
terms of workers' rights and workers' needs and the fairness to those 
workers. That is what both the statistics very clearly demonstrate and 
what these cases themselves demonstrate.
  The idea that one could do legal gymnastics to find out that when you 
have the employer involved in actually lying to an employee, the 
employee gets sick, the employer knows it is because of beryllium, does 
not tell the worker that it is because of beryllium, and he finally 
brings the case and only later on finds out that it is beryllium and 
that the company has lied to him, for her to say he should have known 
he was sick a long time ago, and the statute of limitations really went 
on during that period of time, it is too bad that the employer lied to 
that person, endangered that person's health, and disadvantaged that 
person's health in a dramatic degree, and she finds a technicality and 
says they might have been sick during the time, but even though the 
company knew that they could have been devastatingly sick and die from 
this kind of toxic chemical, she looked for the very narrow niche in 
order to disadvantage the worker.
  When one finds in the case at the Wal-Mart a coverup was taking place 
and then discovers in a second case that there was a whole diary where 
the Wal-Mart had lied and then came back in, how Justice Cook could 
even at that time--and there was such deception and such deceit by the 
company--find a way to diminish the rights and the interests and the 
protections of the workers seems to me to be well out of the 
mainstream.
  We are talking about people who should be in the mainstream, and the 
statistics do not indicate, when it comes to workers' rights and 
workers' rights cases, that she is in the mainstream.
  In age discrimination, in religious tolerance issues, I gave examples 
where she drew the line in a way that I think

[[Page S5707]]

is outside of the common understanding or common interpretation of the 
law, and we are being asked to give a lifetime appointment to this 
individual. It seems to me that we can find people to serve on the 
Sixth Circuit who are going to be fair and balanced and are going to be 
in the mainstream in terms of their protection of workers' rights and 
the workers themselves.
  This nominee is clearly on the fringes in protecting workers' rights. 
This circuit court has an enormous responsibility of protecting workers 
in a major industrial area of our country, and those rights need to be 
protected when those plaintiffs are up before the judge; they are going 
to look up at the judge and say: I know from the background, I know 
from the Senate hearings I am going to get a fair shake. We have the 
list of letters and reports, all from the representatives of workers, 
that say they do not believe they will ever get a fair shake. Are they 
all out of common sense? All these notes and letters representing 
workers in cases where they have been short shrifted, are they out of 
the mainstream? I don't believe so.

  Those who come before our committee should be able to meet the 
requirement of fairness in the range of different constitutional 
issues. They ought to understand what the constitutional issues are, 
and they ought to have a record of fairness and balance in interpreting 
those. I do not believe this nominee meets that requirement.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Allard). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VOINOVICH. Mr. President, I am very pleased today to speak on 
behalf of Deborah Cook, an exceptional lawyer and a longtime friend 
from the State of Ohio. The President nominated her to serve on the 
United States Court of Appeals for the Sixth Circuit on May 9, 2001, 2 
years ago. In fact, I was at the White House when President Bush 
nominated Deb, and I remember how enthusiastic he was about her record, 
not only as a distinguished judge but as a dedicated volunteer and role 
model in her community.
  Now, 2 years later, we are finally voting on her nomination. I am 
extremely disappointed at the length of time it has taken for this 
highly qualified nominee to reach the floor but am grateful that this 
day has come.
  I have had the privilege of knowing Deborah Cook for over 25 years. 
She is not only a brilliant lawyer but a wonderful person. She 
graduated from the University of Akron School of Law in 1978 and 
immediately went to work for the law firm of Roderick, Myers & Linton, 
Akron's oldest law firm. She was the first female lawyer to be hired by 
this firm, and 5 years later, in 1983, she became its first female 
partner.
  Deborah remained at Roderick Myers until 1991 when she was elected to 
Ohio's Ninth District Court of Appeals. She remained on this bench 
until 1995 when she successfully won election to the Ohio Supreme 
Court, an office she continues to hold.
  Deb has always devoted her life to her family, community and 
profession. Married to Robert Linton, Deborah has always acted on her 
belief that a member of the bar and judiciary has responsibilities to 
the community. In this regard, she has given generously of her time to 
the Akron Women's Network, Akron Volunteer Center, the University of 
Akron School of Law Intellectual Property Advisory Council, Summit 
County United Way, and the Akron Art Museum, to name just a few.
  In 1999, Deb and her husband established a foundation, 
Collegescholars, Inc., with their own private funds to foster the 
education of underserved public school students and encourage them to 
seek higher education. Students were selected upon finishing third 
grade based on teacher recommendations, financial need and family 
support of the program. This group of students is promised a 4-year 
tuition scholarship to any public university in Ohio. The students, 
called ``scholars,'' remain eligible for the scholarship by maintaining 
good grades and conduct and participating with the other college 
scholars in activities organized for their benefit, including a one-
hour, instructed mentor meeting weekly during the school year.
  Deb has always recognized that she has a responsibility to help 
strengthen the legal profession and honors this responsibility through 
her work with the Ohio and American Bar Associations. She chaired 
the Commission on Public Legal Education, was a member of the Ohio 
Courts Futures Commission, and the Ohio Commission on Dispute 
Resolution and Conflict Management. She is a past president of the 
Akron Bar Association Foundation, a fellow of the American Bar 
Foundation, and was a member of the Akron Bar Association disciplinary 
committee from 1981 to 1993.

  Throughout these past 25 years, I have found Deborah Cook to be a 
woman of exceptional character and integrity. Her professional demeanor 
and thorough knowledge of the law make her truly an excellent candidate 
for an appointment to the Sixth Circuit. Deb has served with 
distinction on Ohio's Supreme Court since her election in 1994 and 
reelection in 2000.
  My only regret is that with her confirmation to the Sixth Circuit, we 
will lose an outstanding justice on the Supreme Court of Ohio. However, 
she will be a tremendous asset to the Federal bench.
  With 10 years of combined appellate judicial experience on the Ohio 
Court of Appeals and the Ohio Supreme Court, Deborah Cook also 
possesses a keen intellect, a record of legal scholarship and 
consistency in her opinions. She is a strong advocate of applying the 
law without fear or favor and of not making policy towards a particular 
constituency. Deborah Cook is committed to upholding the highest 
standards of her profession and she is a trusted leader. It is my 
pleasure to give her my highest recommendation for this nomination.
  When it was announced that Deb was nominated by the President, the 
response from the major newspapers in our State was wonderful and 
amazing. Newspapers from all over Ohio have echoed my sentiments.
  In January 6, 2003, the Columbus Dispatch stated that:

       Since 1996, she has served on the Ohio Supreme Court, where 
     she has distinguished herself as a careful jurist with a 
     profound respect for judicial restraint and the separation of 
     powers between the three branches of government.

  On December 29, 2002, the Cleveland Plain Dealer stated that:

       Cook is a thoughtful, mature jurist--perahaps the brightest 
     on the state's highest court.

  In a May 11, 2000 editorial the Beacon Journal newspaper stated that 
what distinguishes Deborah Cook's work:

     has been a careful reading of the law, buttressed by closely 
     argued opinions and sharp legal reasoning.

  In addition to newspapers, Deb Cook has a bevy of other supporters.
  John W. Reece, retired Ohio jurist, stated:

       Judge Cook and I served on the Ninth Judicial District 
     Court of Appeals in Ohio from 1991 to 1995. I believe we 
     became friends as well as colleagues, working closely 
     together although she was a Republican and I a Democrat. I 
     became impressed with Judge Cook's work ethic and legal mind. 
     She quickly became a talented Appellate Judge. In fact, in a 
     rather brief period of time she became a leader on the Court. 
     Later, when she was elected to the Ohio Supreme Court, I was 
     privileged to sit by assignment with her on the Court a few 
     times. She has exhibited an ability and willingness to be 
     an independent thinker and member of that Court.

  William Harsha, Judge on the Ohio Court of Appeals, Fourth District, 
stated:

       Always courteous and seldom impatient, she is the 
     antithesis of the ill-tempered despot that comes to mind when 
     one thinks of `black robe fever.' ''

  Many of us have seen people change once they get on the Federal 
bench. J. Dean Carro, Director of the Legal Clinic at the University of 
Akron remarked:

       I feel comfortable with expressing an opinion on the 
     qualities I like to see in judges. These qualities are 
     independence, intelligence, and integrity. Justice Cook 
     scores high in all three categories.

  This Senator would like to add the characteristic of humility.
  With the confirmation of Jeff Sutton last week and Deb Cook today, 
the Sixth Circuit can begin to breathe a little easier. From 1998 up 
until September, 2002, the number of vacant

[[Page S5708]]

judgeship months in the Sixth Circuit has increased from 13.7 to 91, 
the highest in the Nation. In addition, during this same time period, 
the median time from the filing of a notice of appeal to disposition of 
the case in the Sixth Circuit was 16 months, well above the 10.7 months 
national average, and the longest in the Nation.
  Clearly, the Sixth Circuit is in crisis, and today's confirmation of 
Deborah Cook will go a long way toward restoring the court's efficiency 
and ability to deal with cases.
  I am sure you will agree that Deborah Cook is exactly what we need on 
the Federal bench.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burns). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. DeWINE. Mr. President, in just a few minutes we will be voting on 
the nomination of Justice Cook. I would like to take this opportunity 
to again talk to my colleagues about Justice Cook and to urge her 
confirmation by the Senate.
  I have known Justice Cook for many years. She is a person of great 
integrity. Senator Voinovich and I recommended her to the President. He 
nominated her. She is someone we both have known for many years. She is 
someone for whom we both have a great deal of respect.
  I wish to take a minute to respond to the comments my colleague, 
Senator Kennedy, made a few minutes ago. Let me say what a great 
pleasure it is to work with Senator Kennedy. He and I have worked 
together on many pieces of legislation. Many times we have been on the 
same side of the legislation. Unfortunately, we are opposed on this 
particular nomination. It always is a pleasure to work with him. He is 
always a great debater, always someone who is fun to be with. It is a 
real pleasure to debate him on this issue.
  My colleague came to the floor and talked about the Norgard case. I 
wish to remind my colleagues about the facts in the Norgard case.
  Justice Cook was a dissenter in the Norgard case. The facts in the 
Norgard case, as I pointed out earlier in this debate, are very simple. 
It was simply a statute of limitations case. So if any of my colleagues 
have a problem with the outcome of this case, they should have a 
problem with the Ohio Legislature.
  The Ohio Legislature passed a 2-year statute of limitations. Norgard 
was diagnosed with his disease in August of 1992. That is when he found 
out about it. Under the Ohio law, the statute started to run, the time 
limits started to run in 1992. Tragically, he did not file his lawsuit 
until 1997. Obviously, more than 5 years had passed, much more than the 
2-year statute.
  Another point my colleague from Massachusetts made was that Justice 
Cook had not decided just a few cases in favor of employees. We did a 
quick search of the decisions.
  We found at least 25 cases of employees, a long list. I ask unanimous 
consent that this list be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           Cases in Which Cook Ruled in Favor of an Employee

       1. Ahern v. Technical Constr,. Specialties, Inc. (1992 Ohio 
     App.).
       2. Browder v. Narzisi Constr. Co. (1993 Ohio App.).
       3. Buie v. Chippewa Local Sch. Dist. Bd. of Educ (1994 Ohio 
     App.).
       4. Conley v. Brown (1998 Ohio App.).
       5. Douglas v. Administrator BWC (1992 Ohio App.).
       6. Edwards v. Douglas Polymer Mixing Corp (1993 Ohio App.).
       7. Gibson v. Meadow Gold Dairy (2000 Ohio Sup. Ct.).
       8. Hanna v. Goodyear Tire and Rubber Co. (1994 Ohio App.).
       9. Harris v. Atlas Single Ply Systems (1992 Ohio Sup. Ct.).
       10. Kroh v. Continental General Tire, Inc. (2001 Ohio 
     Supreme Court).
       11. Lahoud v. Ford Motor Co. (1993 Ohio App.).
       12. Miller-Wagenknecht v. Flowers (1994 Ohio App.).
       13. Pytlinski v. Brocar Prod. (2001 Ohio Sup. Ct.).
       14. Rice v. Cetainteed Corp (1999 Ohio Sup. Ct.).
       15. Ruckman v. Cubby Drilling (1998 Ohio Sup. Ct.).
       16. Smith v. Friendship Village of Dublin OH (2001 Ohio 
     Sup. Ct.).
       17. Spu Waterproofing of OH v. Zatorski (1999 Ohio App.).
       18. SER. David's Cemetery v. Indus. Comm.
       19. SER Highfill v. Indus Comm.
       20. SER Toledo Neighborhood Housing Serv. v. Indus.
       21. SER Minor v. Eschen (1995 Ohio Sup. Ct.).
       22. SER MTD Prods v. Indus Comm (1996 Oh. Sup. Ct.).
       23. SER Spurgeon v. Indus. Comm (1998 Oh. Sup. Ct.).
       24. Tersigni v. Gen. Tire (1993 Ohio App.).
       25. Wagner v. B.F. Goodrich Co.
  Mr. DeWINE. I hope my colleagues will have a chance to take a look at 
that. It is long list of 25 different cases where Justice Cook ruled in 
favor of the employee.
  Finally, I ask that my colleagues take a look at an Akron Beacon 
Journal editorial of February 27. The Akron Beacon Journal is certainly 
not the most conservative paper in the State. It is a very well-
respected paper. It is the paper that endorsed Al Gore for President, 
and endorsed Tim Hagan, the Democratic nominee for Governor, in the 
last campaign. It responded in this editorial to an op-ed piece that 
had been written on the editorial page by Adam Cohen, an editorial 
writer for the New York Times.
  In part, the Akron Beacon Journal stated:

       A fresh example of the distortion and even recklessness can 
     be found on today's commentary page. Adam Cohen, an editorial 
     writer for the New York Times, delivers a slashing critique 
     of the Cook record as a justice on the Ohio Supreme Court the 
     past eight years. Too bad his assessment lacks the necessary 
     context, let alone a full grasp of the issues at work in the 
     cases he discusses.
       Cook critics overlook the majority opinion she wrote 
     rejecting the claims of employers and concluding that 
     punitive damages are available to workers who have suffered 
     discrimination in the workplace--

  Referencing a case that Justice Cook wrote.
  The Akron Beacon Journal continues:

       The opinion reveals much about the Cook judicial 
     philosophy. She precisely examined legislative intent in 
     crafting the law. That is the Cook familiar to many Ohioans. 
     She gives great deference to the legislature. She reflects 
     the principle that this is a nation of laws, not of men or 
     women.
       Who doesn't sympathize with David Norgard, a worker exposed 
     to beryllium on the job who has been ailing for 2 decades? 
     The issue before the Ohio Supreme Court was whether Norgard 
     filed suit within the statute of limitations. The majority 
     ruled he had. Cook dissented.
       Cohen suggests Norgard knew little about his illness 
     because the company stonewalled. In truth, Norgard knew for 
     years. He sought advice about hiring an attorney. The trial 
     court dismissed his case on summary judgment. The appeals 
     court unanimously upheld the lower court. Cook objected to 
     the majority casting aside settled law on the statute of 
     limitations. Her interpretation followed the practice of 
     courts across the country.
       Other nominees deserve harsh words. Yet, in seeking to 
     demonize Cook, critics risk their credibility.

  I will add one comment of my own and that is we have researched the 
law and we would find that in the State of Massachusetts, their courts 
also follow a fairly strict interpretation of the statute of 
limitations, and we would expect if this case had been decided by the 
court in Massachusetts they would have come down on the same side as 
Justice Cook.
  Justice Cook is a very fine justice of the Ohio Supreme Court. She 
will do an excellent job on the Federal bench.
  Before I yield the floor, I ask unanimous consent that the last 10 
minutes of this debate be evenly divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask that I be allowed to use such time 
as I may consume as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Feingold are printed in today's Record under 
``Morning Business.'')
  Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative 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.

[[Page S5709]]

  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. There remains 5 minutes on each side prior to 
the vote on the nomination at 4:45.
  Mr. LEAHY. Mr. President, today we consider another controversial and 
divisive judicial nomination, that of Deborah Cook to the Sixth Circuit 
Court of Appeals. Just last week we debated and voted on the 
controversial nomination of Jeffrey Sutton to the Sixth Circuit. The 
vote on his confirmation received the fewest positive votes in almost 
20 years. Only 52 Senators voted in favor of his confirmation and 
appointment to the Sixth Circuit. This number demonstrates the serious 
opposition many conscientious Senators have to some of the extreme 
nominations this administration has been insisting be confirmed in its 
continuing effort to take ideological control of the Federal courts.
  The nomination of Deborah Cook to be Judge Sutton's colleague on the 
Sixth Circuit also presents many serious problems. I believe that it is 
important to make the record clear that her nomination has a unique 
procedural posture, especially in light of the recent history of 
Republican obstruction of President Clinton's nominations to that 
important court. These procedural controversies are in addition to 
significant substantive concerns raised by Justice Cook's record as an 
activist State judge. Similar to Justice Priscilla Owen, Deborah Cook's 
judicial record is replete with evidence of results-oriented reasoning.
  Similar to Priscilla Owen, Justice Cook has demonstrated herself to 
be an activist judge. Justice Cook sits on a court that is numerically 
dominated by Republicans. Given the partisan politicization of the 
judiciary by Republicans over the last several years, one might expect 
that Justice Cook would be part of the Ohio Supreme Court's majority in 
all but rare instances and that the two Democratic judges might be the 
most frequent dissenters. However, Justice Cook is the most active 
dissenter on the Republican-dominated Ohio Supreme Court. She is the 
most extreme of her colleagues and demonstrates an inability to reach 
consensus with seemingly like-minded judges. I fear that if confirmed, 
her inability to reach a consensus would further polarize the Sixth 
Circuit, as well.
  Justice Cook's dissents distort precedent, misinterpret legislative 
intent and demonstrate results-oriented reasoning in an effort to 
suppress workers' rights. She has repeatedly voted to protect 
corporations that have harmed or lied to employees. One example is 
Bunger v. Lawson, where a convenience store employee who had been 
robbed at gunpoint was denied psychological trauma remedies, while the 
employer had failed to install basic safety features such as a working 
phone and door locks. Similar to Justice Priscilla Owen, Justice Cook's 
own Republican colleagues have criticized her extremist opinions. The 
court in Bunger called Justice Cook's interpretation of the law 
``nonsensical,'' and said that it, ``leads to an untenable position 
that is unfair to employees.'' Taking the position adopted by Justice 
Cook in her dissent would be, as the majority clearly stated, ``an 
absurd interpretation that seems borrowed from the pages of Catch-22.''
  Similarly, Justice Cook sought to deny workers compensation benefits 
to another employee in a case called Russell v. Industrial Commission 
of Ohio. In Russell, Justice Cook's dissent ignored the plain language 
of the statute and the relevant precedent regarding workers 
compensation benefits. The Court's opinion stated that Justice Cook's 
dissent:

       lacks statutory support for its position [and she] has been 
     unable to cite even the slightest dictum from any case to 
     support its view . . . . [the] dissent's argument, which has 
     not been raised by the commission, the bureau, the claimant's 
     employer, or any of their supporting amici, is entirely 
     without merit. Russell at 1073-74.

  I ask my colleagues, is this the type of judge who should be given a 
lifetime appointment to the Federal bench?
  As a former prosecutor, I am also troubled by Justice Cook's opinions 
that repeatedly seek to disregard jury findings in powerful 
discrimination cases. Anyone who has ever tried a case to verdict 
before a jury knows how much time and effort goes into the lengthy 
process. For this reason, jury verdicts should be given the utmost 
respect on appeal. In Byrnes v. LCI Communications, Justice Cook voted 
with a 3-judge plurality to overturn a $7.1 million jury verdict for 
employees in an age discrimination case despite powerful evidence of 
statements made by the employer about the relative merits of having a 
younger staff. Evidence in the plaintiffs' favor in this case included 
blatant statements from the employer that he wanted ``to bring in 
young, aggressive staff managers and change out the old folks,'' and 
that ``some of the older folks there could no longer contribute.'' In 
Byrnes, the jury also heard testimony that the employer said a certain 
worker was, ``too old to grasp the concepts that he was looking for,'' 
and that he did not, ``want old marathoners in my sales organization . 
. . I want young sprinters.'' These statements are directly relevant to 
a jury's determination whether the employer engaged in age 
discrimination. Yet, Justice Cook demonstrated her lack of respect for 
the jury's role in our system of justice by voting to overturn the 
jury's determination. Unfortunately, this case is not an isolated 
incident. Justice Cook also voted to overturn jury verdicts in other 
discrimination cases such as Gliner v. St. Gobain Norton Industries and 
Perez v. Falls Financial Incorporated.
  In addition to her apparent bias against workers' rights, Justice 
Cook opposes the rights of consumers and victims even in the most 
compelling cases. For example, in Sutowski v. Eli Lilly, Justice Cook 
wrote for a divided majority that denied plaintiffs the ability to 
claim damage to their reproductive systems due to in utero exposure to 
DES, a drug known to cause cancer and reproductive disorders. She 
denied these victims the ability to rely on the market-share theory in 
their complaints against the manufacturers even though the market-share 
theory was virtually invented for DES cases where hundreds of companies 
manufactured the drug but the victims could have no idea by whose drug 
they were affected. Her colleagues in dissent severely criticized 
Justice Cook's opinion stating that she ``selectively quoted,'' from a 
prior Ohio case:

       . . . to create the impression that the General Assembly is 
     the only appropriate body to recognize the market-share 
     liability theory in DES litigation. The majority then uses 
     that misguided impression as a platform for launching into a 
     tortured analysis of Ohio's Products Liability Act. It is 
     here that the majority's shell game becomes most deceptive.

  In another case, Williams v. Aetna Finance, Justice Cook dissented 
from the majority's affirmation of the trial courts' holding that an 
arbitration clause was unconscionable in a case involving a scheme to 
defraud elderly African American home owners into home improvement 
loans at exorbitant rates.
  These are just a few examples of the hundreds of cases that Justice 
Cook has decided as a State court judge. They provide a picture of a 
judge with a proclivity for stretching the boundaries of precedent to 
rule against victims and workers in favor of corporations. On the 
substance of her record as a judge, I have concluded that Deborah Cook 
is a conservative activist who is hostile to consumers, victims, 
workers and civil rights. The prospect of elevating this activist judge 
to a lifetime appointment to the Federal bench has generated a 
significant amount of controversy. We have received letters of 
opposition from many national organizations that represent labor and 
consumers, as well as local citizens groups and law professors who 
oppose her nomination to the Sixth Circuit.

  Justice Cook's nomination was forced out of the Judiciary Committee 
over the objection of the Democratic Senators and in violation of our 
longstanding Committee rules. The Democratic members of the Committee 
sought additional time to debate her nomination. Such requests have 
always before been honored on the Judiciary Committee, which for 24 
years had a rule providing protection for minority rights to debate. 
Rule IV requires the votes of 10 Senators to bring a matter to a vote 
and one of those votes to end debate must be cast by a member of the 
minority. In their determination to bring this controversial nominee to 
the floor in February, Republicans unilaterally overruled the Committee 
rules by not allowing a vote to end debate

[[Page S5710]]

over the objection of Democratic Senators. Along with several other 
Senators, I voted ``present'' in protest of this violation of our rules 
and rights.
  Over the last several weeks our Republican and Democratic Senate 
leadership has discussed the violation of Senators' rights that 
occurred on February 27. I thank them for their attention to these 
matters and for working with us to address our concerns.
  In addition, there is the serious matter of the mistreatment of 
previous nominations to the Sixth Circuit by the Republican majority. 
Deborah Cook is nominated to the Sixth Circuit Court of Appeals, a 
court to which President Clinton had an impossible time getting his 
nominees considered. For years, the Sixth Circuit has been one of the 
prime targets of Republicans intent on ideological court packing. 
During President Clinton's entire second term, not a single nominee to 
the Sixth Circuit was allowed a hearing or a vote by the Republican 
majority. Three highly qualified, moderate nominees to the Sixth 
Circuit, Judge Helene White, Kathleen McCree Lewis and Professor Kent 
Markus, were all denied hearings and votes in the years 1997 through 
2001. Republicans today fail to acknowledge that the vacancies that 
have plagued the Sixth Circuit in recent years are the result of their 
tactics to prevent any action on any of President Clinton's nominees.
  Judge Helene White of the Michigan Court 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 2001. Judge White's nomination may have set an 
unfortunate but unforgettable record. Her nomination was pending 
without a hearing for more than four years. She was one of almost 80 
Clinton judicial nominees who did not get a hearing during the Congress 
in which first nominated. Unfortunately, she was also denied a hearing 
after being renominated a number of times over the next four years, 
including in January 2001.
  Likewise, Kathleen McCree Lewis, a distinguished African American 
lawyer from a prestigious Michigan law firm was also never accorded a 
hearing on her 1999 nomination to the Sixth Circuit. This daughter of a 
former Sixth Circuit judge and Solicitor General of the United States 
was never accorded a hearing or vote by the Republican majority. Her 
nomination was withdrawn by President Bush in March 2001 without ever 
having been considered.
  Professor Kent Markus was another outstanding nominee to a vacancy on 
the Sixth Circuit. He had served at the Department of Justice and was 
nominated by President Clinton in 1999, but never received a hearing 
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 and more 
than 80 Ohio law school deans and professors.
  As Professor Markus testified last year, he was told by Republicans 
that some on the other side of the aisle held these seats open for 
years for a Republican President to fill, instead of proceeding fairly 
on the consensus nominees then pending before the Senate. The 
Republican majority was unwilling to move forward, knowing that 
retirements and attrition would create four additional seats that would 
arise naturally for the next President. That is how the Sixth Circuit 
was left with eight vacancies, half of its authorized strength, in 
2001.
  Had Republicans not blocked President Clinton's nominees to the Sixth 
Circuit, if the three Democratic nominees had been confirmed and 
President Bush appointed the judges to the other vacancies on the Sixth 
Circuit, that court would be almost evenly balanced between judges 
appointed by Republican and Democratic Presidents. That is what 
Republican obstruction was designed to prevent--balance. The same is 
true of a number of other circuits, with Republicans benefiting from 
their obstructionist practices of the preceding six and a half years. 
This, combined with President Bush's refusal to consult with Democratic 
Senators about these matters, is particularly troubling.
  Long before some of the recent voices of concern were raised about 
the vacancies on the Sixth Circuit, Democratic Senators in 1997, 1998, 
1999 and 2000 implored the Republican majority to give President 
Clinton's distinguished and moderate 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. The growing vacancies on the Sixth Circuit were ignored by 
the Republican majority.
  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 
predicted that by the time the next President was inaugurated, there 
would be at least six vacancies on the Court of Appeals. In fact, there 
were soon eight. Despite all these pleas, no hearing on a single Sixth 
Circuit nominee was held in the last three full years of the Clinton 
Administration. Not one. The situation was exacerbated further as two 
additional vacancies arose. And regrettably, despite my best efforts, 
this White House has rejected all suggestions to redress the legitimate 
concerns of Senators in that circuit that qualified, moderate nominees 
were blocked by Republicans Senators during the previous 
administration. Instead, the White House forwarded several extreme 
nominees to fill the seats that their party held hostage while leading 
the Senate during the prior administration.
  When I scheduled the April 2001 hearing on the nomination of Judge 
Gibbons to the Sixth Circuit, it 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 pending before the Committee for anywhere from 
one year to over 4 years. Despite the partisan treatment of President 
Clinton's nominees, I went forward. The conservative Judge Gibbons was 
confirmed by the Senate on July 29, 2002, by a vote of 95 to 0. We did 
not stop there, but proceeded to hold a hearing on a second Sixth 
Circuit nominee, Professor John Marshall Rogers, just a few short 
months later in June. This conservative was likewise confirmed last 
year.
  Thus, the Democratically-led Senate proceeded to hold hearings, give 
Committee consideration and confirm two of President Bush's 
conservative nominees to the Sixth Circuit last year. With the 
confirmations of Judge Julia Smith Gibbons of Tennessee and Professor 
John Marshall Rogers of Kentucky, Democrats confirmed the only two new 
judges to the Sixth Circuit in the previous 5 years.
  Under the current Republican leadership, our Committee raced to hold 
Justice Cook's hearing at the same time as two other controversial 
circuit court nominees, including Jeffrey Sutton. This triple hearing 
resulted in a marathon sitting lasting almost 12 hours. Most of the 
questioning focused on Jeffrey Sutton and relatively little time was 
dedicated to Justice Cook. Many Democrats serving on the Judiciary 
Committee requested an additional hearing for Justice Cook and Mr. 
Roberts. That request was denied for Justice Cook. We invited Justice 
Cook and Mr. Roberts to meet with us. That request was denied. Then 
Republicans overrode our longstanding Committee rules in order to 
report those nominations without proper consideration before the 
Judiciary Committee.
  This nomination is one of a long line of divisive and controversial 
nominations on which this Administration and the Republican majority in 
the Senate insist. They are taking full advantage of their power after 
having unfairly refused to consider President Clinton's well qualified, 
moderate nominees and now insisting that the administration's 
ideological court packing scheme be put into effect. The ideological 
takeover of the Sixth Circuit is all but complete with the confirmation 
of Judge Gibbons, Professor Rogers, Mr. Sutton and now Justice Cook.
  Mr. HATCH. Mr. President, I rise today to express my support for the 
confirmation of Deborah Cook to the Sixth Circuit Court of Appeals.

[[Page S5711]]

  Today's vote is important because we have an opportunity to confirm 
an excellent judge who exercises proper judicial restraint on the 
bench. Justice Cook is an honorable jurist. She has a distinguished 
record in private practice, she is a legal pioneer, and she is active 
in her community. Let me take a few moments to share how Justice Cook 
came to this point. The story deserves to be told.
  A native of Pittsburgh, PA, my hometown as well, I might add--Deborah 
Cook had anything but a stable childhood. Not only did her family move 
quite often, but her family suffered economically. Her mother, 
Katherine Rudolph, struggled to support her children after Justice 
Cook's father abandoned the family. When Deborah was 16, her mother 
passed away.
  Although she did not have much time with her, Justice Cook credits 
her mother with instilling in her a sense of justice and a sense of the 
importance of following the rules. Justice Cook carried these ideals to 
Akron, Ohio, where she and her siblings moved to join their uncle's 
large family. All together, the new family numbered 14.
  In the next few years, Justice Cook received her bachelor of arts and 
juris doctor degrees from the University of Akron. While in law school, 
she clerked part time at Roderick, Myers & Linton, Akron's oldest law 
firm, and accepted an offer from the same firm in 1978, becoming the 
first woman attorney ever hired there. Five years later, Justice Cook 
again made history at the firm when she was named its first woman 
partner. Let me tell you, Justice Cook knows first hand the 
difficulties and challenges that professional women face in breaking 
the glass ceiling.
  While in private practice Justice Cook maintained a busy civil 
litigation caseload, appearing in bankruptcy, state, and federal 
appellate and trial courts to litigate such matters as claims disputes, 
workers' compensation claims, insurance claims, employment 
discrimination cases, torts, and wrongful death lawsuits.
  Justice Cook has the experience we look for in a Federal judge. In 
1990, she left private practice and ran for a seat on the Ohio Ninth 
District Court of Appeals, which is based in Akron. The Ohio courts of 
appeals have appellate jurisdiction over the Ohio common pleas, 
municipal, and county courts, hearing and deciding cases in three-judge 
panels. Four years later, Justice Cook ran for the Ohio Supreme Court, 
a seven-member court, where she currently serves.
  Over the past 7 years, Justice Cook has earned a reputation for being 
a stickler for the law, a judge committed to law and order. She defines 
her own judicial role ``as [one] limited by the letter of the law.'' 
She is a student of history and a committed constitutionalist. These 
are attributes desperately needed in the Federal courts. Simply put, as 
Justice Cook has said of herself, while she ``might hold a personal 
view, or perhaps even hold a bias, that has to be put aside.'' She 
``work[s] within the parameters given a judge by democratically enacted 
statutes,'' avoiding the temptation to legislate from the bench. 
Justice Cook understands what makes an effective judge and she carries 
out that understanding.
  The Ohio newspapers have recognized these qualities in Justice Cook. 
The Columbus Dispatch says Justice Cook ``uniquely combines keen 
intellect, careful legal scholarship and consistency in her opinions. 
She is committed to rendering decisions validated by the [law], not 
popularity polls and special interests.'' The Cleveland Plain Dealer 
says Cook is ``extremely well qualified'' and a ``thoughtful, mature 
jurist perhaps the brightest on the state's highest court.'' The Akron 
Beacon Journal says Cook ``has been a voice of restraint in opposition 
to a court majority determined to chart an aggressive course, acting as 
problem-solvers (as ward pols) more than jurists.''
  I ask unanimous consent that copies of each of these editorials be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From the Columbus Dispatch (Ohio), Oct. 1, 2000]

         Supreme Court--Cook, O'Donnell Can Restore Confidence

       The seven justices who sit on the Ohio Supreme Court are 
     among the most powerful people in the state. Acting in 
     agreement, any four of them can overrule the will of millions 
     of Ohio voters, all 132 members of the General Assembly and 
     the governor.
       The state constitution grants the court such awesome power 
     so that the justices can strike down unconstitutional acts of 
     the legislature that threaten the rights and liberties of 
     Ohio's residents.
       But if misused, this power also can threaten the rights and 
     liberties of Ohioans. The rule of law is replaced by 
     prejudice or whim.
       This is why it is so important that the voters elect 
     justices who regard themselves as servants, not masters, of 
     the constitution. Justices who serve the constitution 
     understand that their role is not to make policy or law, 
     because this is a responsibility given by the constitution to 
     the legislature, not to the courts.
       Justices may strike down laws that violate the 
     constitution, but they may not replace those laws with ones 
     more to their own liking.
       It also is vital that voters elect justices who understand 
     that their job is to represent the law, not a political 
     party, not an interest group. Their job is to resolve 
     disputes impartially, in accordance with the constitution and 
     Ohio statutes.
       In recent years, ideology, not impartial application of the 
     law, frequently appears to have guided court rulings. The 
     familiar 4-3 majority has overturned legislative efforts to 
     limit damage awards in lawsuits, rejected changes in the 
     state workers' compensation system and declared the state's 
     school-funding mechanism unconstitutional, simultaneously 
     dictating the means by which the legislature is to solve the 
     problem.
       The perception is that this majority--Democratic Justices 
     Alice Robie Resnick and Francis E. Sweeney and Republicans 
     Paul E. Pfeifer and Andrew Douglas--holds itself above the 
     constitution, entitled to make law.
       While not exactly partisan, this majority's bent is 
     definitely political. These four justices are united in 
     judicial activism with a messianic and populist bent.
       The perception that the court is controlled by an 
     ideologically driven majority is seriously undermining faith 
     in the integrity and fairness of the high court.
       Justices should not be turned out of office lightly: 
     certainly not for an occasional unpopular opinion and 
     particularly not for one resulting from a good-faith effort 
     to adhere to the constitution. But when justice becomes 
     politicized and high court rulings twist the law to reach the 
     majority's preferred outcome, a change is needed.
       *For that reason, The Dispatch urges Ohioans to cast their 
     Supreme Court ballots for incumbent Justice Deborah L. Cook 
     and Judge Terrence O'Donnell of the Cuyahoga County Court of 
     Appeals.
       Cook, a Republican seeking a second term on the court, 
     believes a judge's job is to apply the law without fear or 
     favor, not to make policy or to favor a constituency. Cook 
     does not believe the court should legislate, a point she has 
     underlined in her dissents to the court's two rulings in the 
     DeRolph school-funding lawsuit.
       Of the seven justices, Cook uniquely combines keen 
     intellect, careful legal scholarship and consistency in her 
     opinions. She is committed to rendering decisions validated 
     by the constitution, not popularity polls and special 
     interests.
       Cook's Democratic challenger, Judge Tim Black of the 
     Hamilton County Municipal Court, doesn't hesitate to describe 
     himself as a ``progressive,'' which is another way of saying 
     ``judicial activist.'' Black has made it clear in recent 
     statements that he favors the four-member activist majority.
       Like Cook, Republican O'Donnell believes in applying the 
     law without fear or favor. He does not make policy from the 
     bench and says judges should be faithful to the law, not to 
     causes. His integrity and well-defined judicial philosophy 
     have made O'Donnell one of the most respected judges in 
     Cuyahoga County.
       His opponent, incumbent Democratic Justice Alice Robie 
     Resnick claims to follow the same philosophy, but the record 
     suggests otherwise. She is a dependable member of the four-
     justice activist majority. Her proposal for a legislative-
     Supreme Court summit to address the school-funding problem 
     shows either that she doesn't understand her role as a judge 
     or that she wants to rewrite the constitution to make the 
     court a seven-member super-legislature. Neither explanation 
     reflects favorably on her.
       Resnick has shown an unseemly willingness to politicize her 
     office. Her appearance at the opening of a school in Vinton 
     County was a transparent attempt to win votes from those who 
     approve of the Supreme Court's use of the DeRolph lawsuit to 
     dictate school-funding policy to lawmakers.
       Her appearance at that event along with William L. Phillis, 
     mastermind for the plaintiffs in the continuing DeRolph case, 
     was a glaring conflict of interest and a lapse that cannot be 
     justified or excused.
       Six years ago, The Dispatch endorsed Resnick for a second 
     term, believing that she had demonstrated diligence and 
     impartiality in her first term. That can no longer be said.
       O'Donnell has pledged to restore integrity to the court. He 
     deserves that chance.
                                  ____


  [From the Plain Dealer Publishing Co., (Cleveland, Ohio), Dec. 29, 
                                 2002]

                       Break the Judicial Logjam

       It has been more than 19 months since President George W. 
     Bush nominated Ohio Supreme Court Justice Deborah Cook and

[[Page S5712]]

     former state Solicitor Jeffrey Sutton to fill vacancies to 
     the 6th Circuit U.S. Court of Appeals. But inexcusably, the 
     Judiciary Committee of the U.S. Senate has yet to hold a 
     single hearing on Cook or Sutton.
       Despite pressure from Bush and other Republicans, Judiciary 
     Committee Chairman Patrick Leahy, a Vermont Democrat, has 
     bottled up more than 100 nominations to federal court 
     openings. And amid the political stalling, the workloads of 
     federal District Court and appellate judges continues to 
     mount.
       That should all change on Jan. 7, when the Senate 
     reconvenes and reorganizes under Republican control. Expected 
     to replace Leahy as Judiciary Committee chairman is Orrin 
     Hatch, a Republican from Utah.
       Hatch must move quickly to break the judicial logjam. And 
     confirmation hearings for Cook and Sutton should be high on 
     his list.
       This isn't about doing any special favor for Ohio or the 
     other states the 6th Circuit serves. It's about competence. 
     Both Cook and Sutton are extremely well qualified. Cook is a 
     thoughtful, mature jurist--perhaps the brightest on the 
     state's highest court. Sutton is regarded as a brilliant 
     litigator who has argued numerous cases before the U.S. 
     Supreme Court.
       It's well past time to hold hearings on these and other 
     judicial appointments and put them before the Senate for a 
     confirmation vote.
                                  ____


             [From the Akron Beacon Journal, Jan. 6, 2003]

                              A Cook Tour

       Tour the Web sites of various liberal interest groups, from 
     the National Organization for Women to the Alliance for 
     Justice, and you will discover how easily nominees for the 
     Federal courts can be caricatured. In recent months, Justice 
     Deborah Cook of the Ohio Supreme Court has been a target.
       Members of the Senate Judiciary Committee considering her 
     nomination to the 6th U.S. Circuit Court of Appeals should 
     work their way past the political slogans. They will find a 
     judge conservative in the traditional sense. She follows the 
     principle of judicial restraint, ruling as the law is, not as 
     she would like the law to be. Justice Cook has waited 18 
     months for a hearing on her nomination. The day appears in 
     sight, perhaps as early as Jan. 14. Cook was among the first 
     judicial nominees of President Bush, one of 11 who gathered 
     at the White House on a spring day to demonstrate the new 
     administration's drive to fill vacancies on the Federal 
     bench.
       Put aside that those vacancies reflect the delaying tactics 
     of Senate Republicans during the Clinton years. Cook and the 
     others have encountered obstacles constructed by Democrats. 
     The November elections altered the political landscape. 
     Republicans rule the Senate and the White House. Nominations 
     are set to move forward.
       That doesn't mean critics shouldn't howl when the president 
     opts for a nominee with excessive baggage, say, one more 
     comfortable in a debating society than on the Federal bench. 
     Bill Clinton took the cue, avoiding ideologues and sending 
     many impressive nominees to Capitol Hill. President Bush 
     should keep in mind his slight margin of victory and the 
     narrow Republican majority in the Senate.
       Cook critics point to her membership in the Federalist 
     Society, a group of conservative lawyers and academics that 
     includes many who advocate countering liberal activists with 
     their own brand of activism. Critics also note the many times 
     Cook has dissented on the Ohio Supreme Court, contending she 
     is out of the mainstream.
       Those who watch the Ohio high court know Cook is no 
     ideologue. She has been a voice of restraint in opposition to 
     a court majority determined to chart an aggressive course, 
     acting as problem-solvers (as ward pols) more than jurists. 
     Cook has been accused of advocating the elimination of 
     protections for employee whistleblowers. In truth, she 
     objected to the majority acting as a superlegislature, 
     practicing public policy in the form of judicial rulings.
       In another instance, Cook disagreed with the majority 
     because she rightly thought it necessary to have expert 
     medical testimony to establish whether a cancer qualified as 
     a disability under the law. When the majority ruled that 
     managers and supervisors could be sued individually for acts 
     of sexual harassment and discrimination, she noted the 
     glaring departure from the defining federal law.
       Are these ``pro-business'' rulings on her part? That would 
     be the caricature. More accurately, they are precise readings 
     of the law. Indeed, in eight years on the Ohio Supreme Court 
     and four on the state appeals court, Cook has consistently 
     produced reasoned and careful analysis.
       The argument might be made that we are simply cheering for 
     an Akron resident. We've differed with Justice Cook too many 
     times on school funding and other matters. President Bush won 
     the election. Republicans control the Senate. They have a 
     wide range of candidates for the Federal bench. In Deborah 
     Cook, they have a judge most deserving of confirmation, one 
     dedicated to judicial restraint.

  Mr. HATCH. Justice Cook also knows how to serve her community. She is 
a founder and trustee of CollegeScholars, a mentored college 
scholarship program in Akron, and she personally mentors students for 
several hours each week. She and her husband fund the program's 
activities in an effort to help inner-city children reach college. 
Their generosity is really remarkable in that they will personally pay 
the college tuition of students who complete the program.
  But service to her community is not limited to the CollegeScholars 
program. Justice Cook is a United Way volunteer; she has given her time 
to Safe Landing Shelter, a home for troubled youth; she has served as a 
Commissioner for the Dispute Resolution Commission, helping address 
truancy problems for disadvantaged children; and she devoted several 
years to the Akron Area Volunteer Center as a Center trustee and 
president. Justice Cook has received the Delta Gamma National Shield 
Award for Leadership and Volunteerism, and the Akron Women's Network 
Woman of the Year award.
  One of the many reasons that this vote on Justice Cook's nomination 
is important is because it represents a step in the right direction in 
terms of addressing the problems in the Sixth Circuit. The Sixth 
Circuit is severely understaffed and needs judges to enable its work to 
go forward, and the addition of Justice Cook, along with President 
Bush's other Sixth Circuit nominee from Ohio, Jeffrey Sutton, will make 
this happen. At this moment, the 16-seat Sixth Circuit is operating 
with only 10 judges. All six of the vacancies on the Sixth Circuit are 
considered judicial emergencies.
  The Sixth Circuit has been forced to rely on district court judges to 
keep pace with its caseload. This practice, in turn, affects the 
efficiency of the district courts. I understand that the Sixth Circuit 
currently hears some arguments via telephone to conserve resources. 
Each three-judge panel on the Sixth Circuit not only must hear more 
cases each year, but it also must spend less time on each case in order 
to maintain some control over the docket. Some cases may not be heard 
despite their merit. In the meantime, the administration of justice 
suffers.
  According to the Administrative Office of the United States Courts, 
the Sixth Circuit ranks last out of the 12 circuit courts in the time 
it takes to complete its cases. On average, the Sixth Circuit in 2002 
took 16 months to reach a final disposition on a case. With the 
national average for appellate courts at only 10.7 months, this means 
the Sixth Circuit takes about 50 percent longer than the average to 
process a case.
  Since 1996, the Sixth Circuit has seen a 46 percent increase in the 
number of decisions per active judge. The national average has 
increased only 14 percent in that same time frame. Last year each Sixth 
Circuit judge handled more than 600 cases.
  Mr. President, Justice Cook has demonstrated her capacity to excel on 
the Federal court bench. She possesses the qualifications, the 
capacity, and the temperament a judge needs to serve on the Sixth 
Circuit. She deserves confirmation.
  Mrs. FEINSTEIN. Mr. President, I rise in support of the nomination of 
Ohio State Supreme Court Justice Deborah Cook for the Sixth Circuit 
Court of Appeals. I intend to vote yes on her nomination because I 
believe that she has a proper understanding of the role of the 
judiciary.
  Unlike some other nominees who have come before the Senate, Justice 
Cook's opinions demonstrate a recognition that a judge's proper role is 
to interpret statutes in a way that reflects the legislature's intent. 
She does not try to legislate from the bench or inject her views into 
her interpretations of a statute.
  I believe that, based on her past record, she will be an appellate 
judge who will read statutes faithfully and carefully and decide cases 
on her best understanding of what the law says as opposed to ruling 
based on her personal views.
  Let me give a couple of examples of Justice Cook's views on judicial 
restraint from her opinions. In a dissent from an Ohio Supreme Court 
decision overturning the State's system of funding public education, 
Cook noted:

       In short, the determination of what constitutes minimum 
     levels of educational opportunity to be provided to Ohio's 
     children is committed by the Ohio Constitution to legitimate 
     policy makers--not the courts, whose proper role is 
     interpretation and application of law.

  Similarly, Cook defended the role of the legislature in a dissent 
from an

[[Page S5713]]

Ohio Supreme Court ruling that found a new ``employment intentional 
tort'' statute to be unconstitutional.

       The majority opinion views the issue presented by this case 
     as a question of ``what is right?'', but I believe the true 
     question is ``who decides what is right?'' The General 
     Assembly passed this legislation as part of its policy-making 
     function, a function inherent in the legislative power. With 
     this decision, however the majority usurps the legislative 
     power.

  Senator DeWine, a strong supporter of Justice Cook, has called her an 
``old-fashioned'' conservative, and I think that is a very accurate 
description.
  I certainly don't agree with all of Justice Cook's opinions, and take 
seriously the concerns raised by those who feel she tends to side with 
big corporations and employers in lawsuits. I also am concerned about 
some of her opinions arguing for the overturning of jury verdicts.
  In weighing the totality of these issues, however, I believe that 
Justice Cook will properly exercise the judicial office. Most 
importantly, I believe she will not be an activist judge who will try 
to legislate from the bench.
  Mr. BUNNING. Mr. President, I rise to express my support for Deborah 
Cook and urge my colleagues to support her confirmation. The Sixth 
Circuit, which includes my State of Kentucky, is experiencing a true 
judicial emergency. Five of the sixteen seats on that court are vacant, 
leading to justice delayed--and thus justice denied--for the citizens 
of Kentucky, Ohio, Tennessee, and Michigan. Fortunately, last week we 
confirmed Jeffrey Sutton to the Sixth Circuit, and today we will 
confirm Deborah Cook.
  Deborah Cook was among President Bush's original circuit court 
nominees first submitted to the Senate on May 9, 2001. Nearly 2 years 
will have passed from the time her nomination was first submitted until 
she will be able to assume her seat on the bench. It has been a long 
wait, but Deborah Cook's confirmation is good news for her and for the 
people living in the Sixth Circuit.
  Deborah Cook is an example of the fine judicial nominees President 
Bush has submitted to the Senate. She is currently a Justice on the 
Ohio Supreme Court, where she has served since she was first elected in 
1994. Prior to that, Justice Cook served as a Court of Appeals judge in 
Ohio. She also practiced law for 15 years in Akron, OH, and was her 
firm's first female associate and partner.
  I am proud that President Bush nominated Deborah Cook, and I am proud 
to vote for her. She has ample experience as an appellate court judge 
and is well qualified to sit on the Sixth Circuit. Deborah Cook will do 
a fine job for all people living in the Sixth Circuit. I am glad she 
will soon be confirmed, and I urge my colleagues to support her as 
well.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, in just a few moments the U.S. Senate will 
be voting on this nomination. What are the essential facts? Here are 
the essential facts:
  Justice Deborah Cook authored the Rice case. This case held that 
workers could get punitive damages from employment discrimination 
cases.
  Second fact: It has been charged that Justice Cook is a big 
dissenter. It has been charged that she cannot reach consensus. Let us 
look at the cases from the Ohio Supreme Court which have gone to the 
U.S. Supreme Court. There have been five of those cases. In each case, 
the U.S. Supreme Court has agreed with Justice Cook. But, more 
importantly, in four of those cases, Justice Cook was a dissenter from 
the Ohio Supreme Court. In those four cases, the U.S. Supreme Court 
said we disagree with the Ohio Supreme Court, but we agree with the 
dissenter. We agree with Justice Cook. In fact, most of those cases 
weren't even close. By an overwhelming majority, in most of those cases 
the U.S. Supreme Court said the Ohio Supreme Court was wrong, but 
Justice Cook was right.
  So much for the argument that there is something wrong with Justice 
Cook when she dissents.
  Justice Cook has been on the Ohio Supreme Court for 8 years. She was 
on the court of appeals for 4 years. She has a great deal of 
experience. She is a person who is a well-rounded individual and who 
has great compassion.
  We have heard on this floor from Senator Voinovich and myself about 
how she has established scholarships for children and how she cares 
about education. And we have heard from the newspapers in Ohio. That is 
important because the newspapers in the State of Ohio pay attention. 
They pay attention to the Ohio Supreme Court. All of the five, six, or 
seven principal newspapers in Ohio endorsed her for reelection. They 
have endorsed her for this confirmation. I think what they have said is 
particularly important.
  The Cincinnati Post wrote on January 8:

       Cook is serving her second term on the Ohio Supreme Court 
     where she has been a pillar of stability and good sense.

  The Cleveland Plain Dealer wrote:

       Cook is a thoughtful, mature jurist--perhaps the brightest 
     on the State's highest court.

  The Akron Beacon wrote:

       Those who watch the Ohio High Court know Cook is no 
     idealogue. She has been a voice of restraint in opposition to 
     a court majority determined to chart an aggressive course 
     acting as problem solvers more than jurists. In Deborah Cook 
     they have a judge most deserving of confirmation, one 
     dedicated to judicial restraint.

  The Columbus Dispatch wrote:

       Cook's record is one of continuing achievement. Since 1996 
     she has served on the Ohio Supreme Court where she has 
     distinguished herself as a careful jurist with profound 
     respect for judicial restraint and the separation of powers 
     between the three branches of government.

  I ask my colleagues to confirm Justice Cook. Senator Voinovich and I 
asked the President to nominate her. We have known her for many years. 
She will serve well and ably on the Sixth Circuit Court of Appeals.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. Mr. President, I yield the remaining time.
  Mr. DeWINE. I yield the remaining time.
  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 Deborah L. Cook, of Ohio, to be United States Circuit Judge for the 
Sixth Circuit? The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski) and the Senator from Pennsylvania (Mr. Specter) are 
necessarily absent.
  Mr. REID. I announce that the Senator from Washington (Ms. Cantwell), 
the Senator from Florida (Mr. Graham), the Senator from Massachusetts 
(Mr. Kerry), the Senator from Connecticut (Mr. Lieberman), the Senator 
from Maryland (Ms. Mikulski), the Senator from Georgia (Mr. Miller), 
and the Senator from Washington (Mrs. Murray), are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``no.''
  The PRESIDING OFFICER (Mr. Cornyn). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 66, nays 25, as follows:

                      [Rollcall Vote No. 139 Ex.]

                                YEAS--66

     Alexander
     Allard
     Allen
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kohl
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Nelson (NE)
     Nickles
     Pryor
     Roberts
     Rockefeller
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--25

     Akaka
     Baucus
     Boxer
     Byrd
     Clinton
     Corzine
     Daschle
     Dayton
     Dodd
     Edwards
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Lautenberg
     Leahy
     Levin
     Nelson (FL)
     Reed
     Reid
     Sarbanes
     Stabenow
     Wyden

                             NOT VOTING--9

     Cantwell
     Graham (FL)
     Kerry
     Lieberman
     Mikulski
     Miller
     Murkowski
     Murray
     Specter
  The nomination was confirmed.




                          ____________________