[Congressional Record Volume 149, Number 77 (Thursday, May 22, 2003)]
[Senate]
[Pages S6942-S6945]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF CONSUELO MARIA CALLAHAN, OF CALIFORNIA, TO BE UNITED 
               STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The assistant legislative clerk read the nomination of Consuelo Maria 
Callahan, of California, to be United States Circuit Judge for the 
Ninth Circuit.
  The PRESIDING OFFICER. Under the previous order, there are 10 minutes 
evenly divided prior to the vote on the nomination.
  Who yields time?
  Mr. LEAHY. Have the yeas and nays been ordered on this nomination?
  The PRESIDING OFFICER. They have not.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. HATCH. Mr. President, I express my enthusiastic support for the 
confirmation of Consuelo Callahan to the Ninth Circuit Court of 
Appeals. Justice Callahan is an outstanding nominee with broad support 
on both sides of the aisle. She has the support of both of the 
distinguished senators from her home state of California, and she was 
unanimously approved by the Judiciary Committee the day after her 
hearing.
  Justice Callahan received her undergraduate degree from Stanford 
University and her law degree from McGeorge School of Law. In 1976, she 
began her 10-year career as a Deputy District Attorney with the San 
Joaquin County District Attorney's Office where she specialized in the 
prosecution of child abuse and sexual assault cases. During her 10-year 
career as a prosecutor, she handled more than 50 jury trials.
  Justice Callahan also has first-hand experience with breaking the 
gender barrier. In 1992, she was appointed to the Superior Court in San 
Joaquin County, where she was the first female and Hispanic to serve on 
that court. She was also the first female member of two local social 
and service organizations. In 1996, Justice Callahan became the first 
judge from San Joaquin County to be elevated to the California Court of 
Appeal in more than 73 years.
  In addition to her outstanding career as a prosecutor and a jurist, 
she has donated her time to organizations involved in addressing the 
problem of child abuse and sexual assault and has received an award for 
her work in this area. She has received other awards during her career, 
including the Governor's award for Criminal Justice Programs and the 
Susan B. Anthony award for Women of Achievement. In 1999, Justice 
Callahan was inducted into the San Joquin County Mexican-American Hall 
of Fame.

  The Committee has received numerous letters supporting Justice 
Callahan's nomination to the Ninth Circuit. The La Raza Lawyer's 
Association of Sacramento described Justice Callahan's professional 
qualifications in the following way: ``as a state appellate court 
justice, her opinions have been detailed, thoughtful and supportive of 
legal precedent. . . . She possesses both the intellect and temperament 
to be an outstanding justice of the Ninth Circuit Court of Appeals.''
  The ten justices that serve with Justice Callahan on the Third 
Appellate District and work with her every day also sent a letter to 
the Committee praising her skills as a jurist. They write, ``During her 
more than six years on our court, Connie has shown that she has the 
integrity, capacity, collegiality, and diligence to serve with 
distinction on the Ninth Circuit. Our only reservation in recommending 
her confirmation is that it will mean a significant loss to our court. 
We will miss Connie's energy and enthusiasm, her legal skills, and the 
positive way in which she fulfills her responsibilities as an appellate 
jurist.''
  Her colleagues' loss will be the federal judiciary's gain, as I have 
great confidence that the beleaguered Ninth Circuit will greatly 
benefit from her confirmation. I urge my colleagues to support this 
nomination.
  Mr. LEAHY. Mr. President, each of the Senators from California would 
like to speak.
  Mrs. FEINSTEIN. Mr. President, I rise in support of Justice Callahan 
to go from the California State appellate court to the Ninth Circuit 
Court of Appeals. This woman was really born in Senator Boxer's and my 
backyard. She is a Bay area person. She was born in Palo Alto. She 
attended Stanford, graduated with honors, attended the University of 
the Pacific McGeorge Law School. She has been both a deputy city 
attorney and deputy district attorney. She founded the first child 
abuse unit in the DA's Office of San Joaquin County. In 1996 she was 
elevated to the State Court of Appeals from the Superior Court of San 
Joaquin County. She has served with distinction for the past 6 years, 
has extraordinarily strong support.
  I certainly believe, and I believe Senator Boxer concurs in this, 
that she is going to be an excellent judge of the Ninth Circuit Court 
of Appeals. I am delighted to support her and to recommend her and to 
vote for her.
  I yield the floor.
  Mrs. BOXER. Mr. President, I am very pleased to join with my 
colleague, Senator Feinstein, in support of this fine nominee,
  To support Consuelo ``Connie'' Callahan to be a judge for the U.S. 
Circuit Court of Appeals for the Ninth Circuit.
  Judge Callahan is a native Californian, born in Palo Alto. She is a 
graduate of Stanford University and the

[[Page S6943]]

McGeorge School of Law at the University of the Pacific.
  She was the first female and the first Hispanic judge to sit on the 
San Joaquin County Superior Court. She currently serves on the Third 
District Court of Appeals located in Sacramento.
  She has been a champion of protecting children. When she served as a 
prosecutor, she focused on major felony prosecutions in the area of 
child abuse. She has received public recognition for her work on this 
issue.
  She also is a former board member and President of the San Joaquin 
County Child Abuse Prevention Center. I applaud her involvement in this 
very serious cause.
  I am pleased to join with my colleague, Senator Feinstein, to support 
this nominee. In addition to having the support of both of her home-
state senators, Judge Callahan received unanimous support from the 
Judiciary Committee.
  I urge my colleagues to join us in supporting this well-qualified, 
mainstream nominee.
  Mr. LEAHY. Mr. President, today, we vote to confirm Judge Consuelo 
Maria Callahan to serve on the United States Court of Appeals for the 
Ninth Circuit. This is another judicial nominee of President Bush whom 
Senate Democrats have strongly supported and whose consideration we had 
expedited through the Judiciary Committee.
  I thank the Democratic leader and assistant leader for supporting 
Judge Callahan's nomination and working out this arrangement with the 
Republican leadership so that this consensus nomination can be 
considered without further delay. I appreciate that the majority leader 
has been willing to work with us to allow this nomination to go forward 
today.
  I still do not know who on the Republican side delayed consideration 
of this consensus nominee. Just as Senate Democrats last month cleared 
the nomination of Judge Edward Prado to the United States Court of 
Appeals for the Fifth Circuit without delay, so, too, the nomination of 
Judge Callahan to the Ninth Circuit was cleared on the Democratic side 
promptly. All Democratic Senators serving on the Judiciary Committee 
voted to report her nomination favorably. All Democratic Senators 
indicated that they were eager to proceed with her nomination and, 
after a reasonable period of debate, vote on her nomination.
  Unlike the divisive nomination of Carolyn Kuhl to the same court, 
both home-State Senators support the nomination of Judge Callahan and 
she is expected to be confirmed by an extraordinary majority--maybe 
unanimously. Rather than disregarding time-honored rules and Senate 
practices, I urged my friends on the other side of the aisle to help us 
fill more judicial vacancies more quickly by bringing those nominations 
that have bipartisan support, like Judge Callahan, to the front of the 
line for committee hearings and floor votes. I noted in a statement 
last week to make the point that the nomination of Judge Callahan to 
the Ninth Circuit Court of Appeals was cleared on the Democratic side.
  We still do not know who on the Republican side delayed consideration 
of the consensus nomination of Judge Prado for a month. I thank the 
Congressional Hispanic Caucus for its support of that nomination as 
well as for its support of Judge Callahan, and for working with the 
Senate to bringing fair evaluation of these nominees and for adding 
their voice to the discussion of these lifetime appointments.
  It is most unfortunate that so many partisans in this administration 
and on the other side of the aisle insist on bogging down consensus 
matters and consensus nominees in order to focus exclusively on the 
most divisive and controversial of this President's nominees as he 
continues his efforts to pack the courts. Democratic Senators have 
worked very hard to cooperate with this administration in order to fill 
judicial vacancies. What the other side seeks to obscure is our effort, 
our fairness and the progress we have been able to achieve without much 
help from the other side or the administration.
  The fact is that when Democrats became the Senate majority in the 
summer of 2001, we inherited 110 judicial vacancies. Over the next 17 
months, despite constant criticism from the administration, the Senate 
proceeded to confirm 100 of President Bush's nominees, including 
several who were divisive and controversial, several who had mixed peer 
review ratings from the ABA and at least 1 who had been rated not 
qualified. Despite the additional 40 vacancies that arose, we reduced 
judicial vacancies to 60, a level below that termed ``full employment'' 
by Senator Hatch. Since the beginning of this year, in spite of the 
Republican's fixation on the President's most controversial 
nominations, we have worked hard to reduce judicial vacancies even 
further. As of today, the number of judicial vacancies has been reduced 
to 45 and is the lowest it has been in 13 years. That is lower than at 
any time during the entire 8 years of the Clinton administration. We 
have already reduced judicial vacancies from 110 to 45, in 2 years. We 
have reduced the vacancy rate from 12.8 percent to 5.2 percent, the 
lowest it have been in the last two decades. With some cooperation from 
the administration, think of the additional progress we could be 
making.
  Earlier this month, we were able to obtain Senate consideration of 
the nomination of Judge Prado, and another distinguished Hispanic 
nominee, Judge Cecilia Altonaga, to be a Federal judge in Florida. We 
expedited consideration of that nominee at the request of Senator 
Graham of Florida. I am told that she is the first Cuban-American woman 
to be confirmed to the Federal bench. Indeed, Democrats in the Senate 
have worked to expedite fair consideration of every Latino nominee this 
President has made to the Federal trial courts in addition to the 
nominations of Judge Prado and Judge Callahan.
  As I have noted throughout the last 2 years, the Senate is able to 
move expeditiously when we have consensus nominees to consider. In a 
recent column, David Broder noted that he asked Alberto Gonzales if 
there was a lesson in Judge Prado's easy approval, but that Mr. 
Gonzales missed the point. In Mr. Broder's mind: ``The lesson seems 
obvious. Conservatives can be confirmed for the courts when they are 
well known in their communities and a broad range of their constituents 
have reason to think them fair-minded.'' Judge Consuelo Callahan is 
another such nominee.
  With this confirmation, the Senate will have confirmed 126 judges, 
including 24 circuit court nominees, nominated by President Bush, 100 
in the 17 months in which Democrats comprised the Senate majority. The 
lesson that less controversial nominees are considered and confirmed 
more easily was the lesson of the last 2 years, but that lesson has 
been lost on this White House and the current Senate leadership.
  One hundred judicial nominees were confirmed when Democrats 
controlled the Senate for 17 months, and 26 have been confirmed in the 
other 12 months in which Republicans have controlled the confirmation 
process under President Bush. This total of 126 judges confirmed for 
President Bush is more confirmations than the Republicans allowed 
President Clinton in all of 1995, 1996 and 1997 the 3 full years of his 
last term. In those 3 years, the Republican leadership in the Senate 
allowed only 111 judicial nominees to be confirmed, which included only 
18 circuit court judges. We have already exceeded that total by 13 
percent and the circuit court total by 33 percent before Memorial Day 
and with 7 months remaining to us this year.
  Today's confirmation makes the seventh court of appeals nominee 
confirmed by the Senate just this year. That meets the annual average 
achieved by Republican leadership from 1995 through the early part of 
2001. The Republicans have now achieved as much in less than 5 months 
for President Bush as they used to allowed the Senate to achieve in a 
full year with President Clinton. They are moving two to three times 
faster for this President's nominees, despite the fact that the current 
appellate court nominees are more controversial, divisive and less 
widely supported than President Clinton's appellate court nominees 
were.
  Understand that if the Senate did not confirm another judicial 
nominee all year and simply adjourned today, we would have treated 
President Bush more fairly and would have acted on more of his judicial 
nominees than Republicans did for President Clinton in

[[Page S6944]]

1995 to 1997. In addition, the 45 vacancies on the Federal courts 
around the country are significantly lower than the 80 vacancies 
Republicans left at the end of 1997. Of course, the Senate is not 
adjourning for the year and Chairman Hatch continues to hold hearings 
for Bush judicial nominees at between two and four times as many as he 
did for President Clinton's.
  Unfortunately, far too many of this President's nominees raise 
serious concerns about whether they will be fair judges to all parties 
on all issues. Those types of nominees should not be rushed through the 
process. I regret the administration's refusal to work with us to end 
the impasse it has created in connection with the Estrada nomination. 
The partisan politics of division that the administration is practicing 
with respect to that nomination are not helpful and not respectful of 
the damage done to the Hispanic community by insisting on so divisive a 
nominee.
  I invite the President to work with us and to nominate more 
mainstream individuals like Judge Prado and Judge Callahan with proven 
records and bipartisan support. In connection with the unexplained 
Republican delay before consideration of the nomination of Judge Prado, 
some suggested that Judge Prado had been delayed because Democratic 
Senators were likely to vote for him and thereby undercut the 
Republican's shameless charge that opposition to Miguel Estrada is 
based on his ethnicity.
  We all know that the White House could have cooperated with the 
Senate by producing Mr. Estrada's work papers. This would have enabled 
the Senate to have voted on the Estrada nomination months ago. The 
request for his work papers was sent last May 15 and has been 
outstanding for more than a year. Rather than respond as every other 
administration has over the last 20 years and provide access to those 
papers, this White House has stonewalled. Rather than follow the policy 
of openness outlined by Attorney General Robert Jackson in the 1940s, 
this administration has stonewalled. And Republican Senators and other 
partisans could not wait to claim that the impasse created by the White 
House's change in policy and practice with respect to nominations was 
somehow attributable to Democrats being anti-Hispanic. The charge would 
be laughable if it were not so calculated to do political damage and to 
divide the Hispanic community. That is what Republican partisans hope 
is the result. That is wrong.
  Unfortunately, in the case of Mr. Estrada, the administration has 
made no effort to work with us to resolve the impasse. Instead, there 
has been a series of votes on cloture petitions in which the opposition 
has grown and from time to time the support has waned. Recently, there 
have been press reports indicating that Mr. Estrada asked the White 
House months ago to withdraw his nomination. I understand his 
frustration. If this administration is not going to follow the practice 
of every other administration and share with the Senate the government 
work papers of the nominee--the very practice this administration 
followed with its own EPA nominee in 2001--then I can understand him 
not wanting to be used as a political pawn by the administration to 
score partisan, political points. That the administration has not 
acceded to his reported request but has plowed ahead to force a 
succession of unsuccessful cloture votes and to foment division in the 
Hispanic community for partisan gain is another example of how far this 
administration is willing to go to politicize the process at the 
expense of its own nominees.
  Judge Callahan is a fine candidate for elevation to the appeals 
court. She has years of experience serving on the bench in the state of 
California, first on the California Superior Court and then on the 
California Court of Appeal. She enjoys the full support of the 
Congressional Hispanic Caucus. Not a single person or organization has 
submitted a letter of opposition or raised concerns about her. No 
controversy. No red flags. No basis for concern. No opposition. This 
explains why her nomination was voted out of the Judiciary Committee 
with a unanimous, bipartisan vote on an expedited basis.
  During President Clinton's tenure, 10 of his more than 30 Latino 
nominees, including Judge Rangel, Enrique Moreno, and Christine 
Arguello to the circuit courts, were delayed or blocked from receiving 
hearings or votes by the Republican leadership. Republicans delayed 
consideration of a well-qualified Hispanic nominee to the Ninth 
Circuit, Judge Richard Paez for over 1,500 days, and 39 Republicans 
voted against him. The confirmations of Latina circuit nominees 
Rosemary Barkett and Sonia Sotomayor were also delayed by Republicans. 
Judge Barkett was targeted for delay and defeat by Republicans based on 
claims about her judicial philosophy, but those efforts were not 
successful. After significant delays and an unsuccessful Republican 
filibuster, 36 Republicans voted against the confirmation of Judge 
Barkett. Additionally, Judge Sotomayor, who had received the ABA's 
highest rating and had been appointed to the district court by 
President George H.W. Bush, was targeted by Republicans for delay or 
defeat when she was nominated to the Second Circuit. She was eventually 
confirmed, although 29 Republicans voted against her.
  The fact is that the Latino nominations that the Senate has received 
from this administration have been acted upon in an expeditious manner. 
They have overwhelmingly enjoyed bipartisan support. Under the 
Democratically led Senate, we swiftly granted hearings for and 
eventually confirmed Judge Christina Armijo of New Mexico, Judge 
Phillip Martinez and Randy Crane of Texas, Judge Jose Martinez of 
Florida, U.S. Magistrate Judge Alia Ludlum, and Judge Jose Linares of 
New Jersey to the district courts. This year, we also confirmed Judge 
James Otero of California, and we would have held his confirmation 
hearing last year if his ABA peer rating had been delivered to us in 
time for the scheduling of our last hearing. As I have noted, we also 
have recently confirmed Judge Cecilia Altonaga and Judge Edward Prado 
with unanimous Democratic support.
  Judge Callahan's nomination was delayed on the Senate executive 
calendar unnecessarily in my view. I am pleased to see that at the 
urging of the Democratic leadership--the Republican majority has agreed 
to bring up this uncontroversial Latina nominee for a vote. I 
congratulate Judge Callahan and her family on her confirmation.
  Mr. President, I thank both the majority leader and the distinguished 
Democratic leader for clearing this action. We have tried on this side 
of the aisle for some time to clear this nomination. I appreciate my 
friends on the Republican side lifting their hold. I support the 
nominee and yield back all time.
  The PRESIDING OFFICER. All time is yielded back. The question is, 
will the Senate advise and consent to the nomination of Consuelo Maria 
Callahan, of California, to be United States Circuit Judge for the 
Ninth Circuit? On this question, the yeas and nays have been ordered, 
and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 195 Ex.]

                                YEAS--99

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum

[[Page S6945]]


     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--1

       
     Kerry
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President shall 
be immediately notified of the Senate's action.

                          ____________________