Congressional Record, Volume 149 Issue 83 (Monday, June 9, 2003)

[Congressional Record Volume 149, Number 83 (Monday, June 9, 2003)]
[Senate]
[Pages S7528-S7533]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[Congressional Record: June 9, 2003 (Senate)]
[Page S7528-S7533]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr09jn03-108]

EXECUTIVE SESSION

______

NOMINATION OF MICHAEL CHERTOFF, OF NEW JERSEY, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE THIRD CIRCUIT

The PRESIDING OFFICER. Under the previous order, the hour of 5:15
having arrived, 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 Michael
Chertoff, of New Jersey, to be United States Circuit Judge for the
Third Circuit.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I rise today in support of the nomination
of Michael Chertoff to the U.S. Court of Appeals for the Third Circuit.
I happen to be admitted to the bar of the Third Circuit. I can't
imagine a better person we can put on that circuit than Michael
Chertoff.
This is not the first time this body has had the opportunity to
consider Mr. Chertoff's qualifications. In May 2001, my colleagues and
I voted to confirm his nomination to the post of Assistant Attorney
General for the Criminal Division of the United States Department of
Justice. He has worked tirelessly in that position on behalf of our
country prosecuting those whose specific goal is to harm America, and
we are grateful for his service.
The same credentials and experience that paved the way for Mr.
Chertoff's confirmation as Assistant Attorney General demonstrate that
he will make an exceptional Federal appellate judge. He graduated magna
cum laude from Harvard College in 1975 and magna cum laude from Harvard
Law School in 1978. After his graduation, he served as a law clerk to
United States Supreme Court Justice William J. Brennan, Jr.
Following his clerkship, he embarked on a long and distinguished
professional career dedicated to fighting crime and corruption that
began in the United States Attorney's Office for the Southern District
of New York in 1983, where he served as a line prosecutor. In 1987, he
was promoted to First Assistant U.S. Attorney for the District of New
Jersey. In 1990, former President Bush appointed him to be the United
States Attorney for the District of New Jersey.
During his time as a Federal prosecutor, Mr. Chertoff gained
extensive experience in all phases of criminal investigations and
prosecutions. He handled major organized crime, fraud, and corruption
prosecutions. Here are a few examples:
Mr. Chertoff successfully prosecuted a RICO murder case involving the
third ranking member of the Genovese La Cosa Nostra family and others.
The principal defendants were convicted of conspiring to murder John
Gotti and murdering a mob associate. They each received 75-to-80 year
prison terms.
Mr. Chertoff successfully prosecuted the Mafia commission case, which
charged the bosses of all five New York La Cosa Nostra families with
operating a national commission through a pattern of racketeering acts
such as extortion, loan sharking, and the murders of a mafia boss and
two associates.
Mr. Chertoff successfully prosecuted the mail fraud, bank fraud, and
tax evasion trial of the mayor of Jersey City, NJ. The case arose out
of an investment fraud perpetrated by the mayor while he was in office.
The defendant was convicted of 14 felonies, sentenced to jail, and
removed from office.
Mr. Chertoff also successfully prosecuted Arthur and Irene Seale for
the 1992 kidnapping and murder of Exxon executive Sidney Reso, a tragic
case which garnered substantial media attention.
This record alone demonstrates that Michael Chertoff has the
experience and qualifications to serve as a judge on the Third Circuit.
However, his public service is not limited to holding high level
government positions. For example:

Mr. Chertoff served as special counsel to the New Jersey Senate
Judiciary Committee in its investigation of racial profiling. Under his
counsel, the Committee held nine hearings examining racial profiling
allegations, concluding that the former attorney general had misled the
Committee and had attempted to cover up the extent of racial profiling
in New Jersey from the U.S. Department of Justice.
After a convicted rapist was mistakenly released from prison, Mr.
Chertoff again served as Special Counsel for the New Jersey Senate
Judiciary Committee during its hearings into the application of Megan's
Law, which requires State correction officials to notify prosecutors 90
days prior to the release of a sex offender, and the reasons why it was
not being systematically employed by the State.
Mr. Chertoff also represented three indigent defendants on death row
in Arkansas through a program operated by the NAACP legal defense fund.
The death sentences of all three defendants were overturned on the
appeal that he handled.
Mr. Chertoff has received numerous awards and honors, including an
honorary law degree from Seton Hall University in 2002; the Anti-
Defamation League Distinguished Public Service Award in 1992; and in
1987 the U.S. Department of Justice John Marshall Award for Outstanding
Achievement in Trial.
These are but a few examples of public service that reinforce the
true nature of Michael Chertoff's character. Recognizing this level of
excellence, the American Bar Association has given Mr. Chertoff a
unanimous well-qualified rating, the highest possible designation.
Plenty of others share the ABA's view of Mr. Chertoff. In a joint
press release, New Jersey's two Democratic Senators, Jon Corzine and
Frank Lautenberg, expressed their strong support for Mr. Chertoff,
stating, ``We are pleased that the President has selected a
distinguished New Jerseyan for this important seat on the U.S. Court of
Appeals for the Third Circuit. Michael Chertoff is a highly intelligent
and competent lawyer with a long and impressive record of public
service.''
In a March 11, 2003 editorial, the Bergen Record endorsed Mr.
Chertoff's nomination, calling it ``a refreshing change.'' The
newspaper continued, ``Mr. Chertoff is exactly the type of nominee the
nation needs for federal judgeships,'' and concluded, ``Mr. Chertoff is
the type of smart, non-ideological high achiever whom Presidents of
both parties should consider for the bench.''
Mr. President, I have touched on only some of the attributes and
accomplishments that demonstrate Michael Chertoff's overwhelming
qualifications for the Third Circuit. He will be an outstanding Federal
appellate judge, and I urge my colleagues to vote in favor of his
nomination.
Mr. President, I notice the distinguished Senator from Pennsylvania
is here. Both he and I are admitted to the bar of the Third Circuit
Court of Appeals. I am also admitted to the bar of the Tenth Circuit
Court of Appeals.
I yield the floor so the distinguished Senator from Pennsylvania can
make his statement.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, it is especially appropriate for members
of the Court of Appeals for the Third Circuit to have a little special
understanding of the needs of that court, and the Court of Appeals for
the Third Circuit is very badly overworked at the present time and very
much in need of judicial replacements. The court has served under the
superb leadership of Chief Justice Edward R. Becker, and I know
personally from my discussions with him and the new Chief Judge,
Anthony Scirica, the tremendous backlog and tremendous pressures the
court of appeals has for the very busy States of Pennsylvania, New
Jersey, and Delaware. I am pleased to see that Michael Chertoff is now
coming up for a vote before the Senate. He has an extraordinary
record--Harvard undergraduate, Bachelor's degree, magna cum laude,

[[Page S7529]]

1975; Harvard Law School, again magna cum laude, in 1978. He has been
engaged in the private practice of law. He has served as assistant U.S.
attorney for the Southern District of New York, which is one of the
toughest, most complicated jurisdictions. They handle very difficult
cases. Then he became an assistant U.S. attorney for the District of
New Jersey, moved up the ranks to be first assistant, and then later
U.S. attorney for the District of New Jersey. Again, that is a
jurisdiction which has very complicated cases.
He has served as minority counsel for the Banking Committee. He has
been the Assistant Attorney General in charge of the Criminal Division.
He has had very wide experience in both civil and criminal law, and I
think he comes to the position for the Court of Appeals for the Third
Circuit with extraordinary qualifications.
It is my hope the vote which we are having today on Michael Chertoff
might be an indication the so-called logjam on filibusters will be
broken. The Rules Committee last week held a hearing on a variety of
ways to deal with the filibuster. It had been my hope during the 107th
Congress, before the filibuster was tried, that we might find a
protocol, which would work regardless of who controlled the White
House, and regardless of who controlled the Senate.

When President Clinton was in the White House and Republicans
controlled the Senate, it was my view, stated on the floor at the time,
that we should have handled President Clinton's nominations
differently. We should have processed them in a more expeditious
manner. Finally, we did handle quite a number of the judges who moved
through after some judicial delays--Judge Berzon, and others.
When the Democrats controlled the Senate in 107th Congress and
President Bush was in the White House, the situation was reversed. It
was my hope at that time we might find some protocol which I had
proposed, one specifically which would establish a timetable: Sixty
days after the nomination was submitted to the Senate there would be a
hearing by the Judiciary Committee; Sixty days later there would be
action by the Judiciary Committee voting up or down; Sixty days later
there would be floor action in the Senate.
Those timetables were not written in stone. They could have varied.
They would be subject to a modification if cause was shown by the
chairman of the committee upon notice to the ranking member or by the
majority leader listing it for the full Senate action upon notice to
the leader of the minority party.
It was my view at that time that we had so many votes which were
party line that if it was a party-line vote the matter would then go to
the full Senate for resolution. That was before advent of the
filibuster. The filibuster cut new ground. It was unprecedented in the
Senate for a filibuster to be lodged against a Court of Appeals judge.
Once before in the history of the Senate was there a filibuster, and
that was when Associate Justice Abe Fortas was considered for Chief
Justice of the United States. That was a bipartisan filibuster. There
were integrity issues there which were very different from the
filibusters which have been mounted during the 108th Congress where, as
I say, this unprecedented action has been taken. That caused a good
deal of consternation on this side of the aisle, and I think a good
deal of consternation in the country.
A number of options were considered where the rule might be changed.
One proposal has been to have the first vote require 60 votes and on
subsequent votes down to 51. My frank view is that is unlikely to be
accepted because it isn't very difficult to have a series of cloture
motions filed.
For those who may be wondering and for anyone watching C-SPAN II, a
cloture motion is a motion filed to cut off debate. The current rule
requires 60 votes to cut off debate.
When the logjam continues, there has been the suggestion of what we
refer to colloquially as the ``nuclear option'' where there might be a
ruling of the Chair that requires 60 votes, and that ruling could be
challenged. On a 51-vote majority, that ruling could be overturned as a
matter of Senate precedent. That has been done on occasion in the past.
But it is an alternative which I think would be unwise and undesirable
if any other alternative can be found. But if we were faced with the
unprecedented cloture proceeding, the Senate may be driven to that
alternative.
What is really under consideration in many minds is whether the
filibuster on the two circuit nominees pending is really a preliminary
for a Supreme Court nominee. I think if that were to be the case it
would be really most unfortunate for the judicial selection process and
very unfortunate for the Senate, which really turns on collegiality for
us to do our job--traditional collegiality which has been sorely
tempted in the recent several years.

If there had been an occasion for a filibuster on a Supreme Court
nominee, I think that would have occurred with the nomination of
Justice Clarence Thomas. And it was not attempted. I think it should
not have been attempted. But that was the most hotly contested Supreme
Court nomination during my tenure here, and I think perhaps the most
hotly contested nomination short of the Fortas nomination in the
history of the Court with the arguments which were raised during the
hearings, with the arguments which were raised on the Senate floor, the
delay, the second round of hearings, and the entire difficulties which
surrounded that nomination. Had there been an occasion for a
filibuster, I think that would have been the ultimate test. I repeat
that I don't think a filibuster should have been attempted. None was.
Justice Thomas was confirmed 52-48, which I think was a very firm
imprimatur of regular procedure for the Senate not to filibuster but to
vote on a majority vote.
It is my hope that what we are doing here with Michael Chertoff will
be a bellwether of a change of landscape and a sea change in the
Senate, so that this confirmation is, I think, pretty much assured. I
hope it will set the stage for affirmative votes in the Senate.
I see other colleagues who have come to the floor with only 15
minutes before the scheduled vote. I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, I thought we were going to be
discussing the candidate for office. I am sorry we kind of got off into
another discussion. We are not filibustering this appointment. We are
happy about this appointment. I want the chance to say that, and take
what has happened as an indication of what can happen.
I rise today to support the confirmation of Michael Chertoff, whom I
know well, to the Third Circuit Court of Appeals.
I am pleased that President Bush has selected this distinguished New
Jerseyan for this important seat on the court of appeals. I hope that
tells us where, in fact, we might be going with future appointments.
Mr. Chertoff is a highly intelligent and competent lawyer who has
compiled a long and impressive record of accomplishment in both the
public and private sectors.
Mr. President, I ask the Chair, if I could, to remind me if I run
past, let's say, 8 minutes so that my colleague, Jon Corzine, has a
chance to speak.
The PRESIDING OFFICER. The Chair will do so.
Mr. LAUTENBERG. Mr. President, Mr. Chertoff was born in Elizabeth,
NJ, and distinguished himself academically as an undergraduate and law
student at Harvard University. After law school, he served as a law
clerk to Judge Murray Gurfein on the U.S. Court of Appeals for the
Second Circuit.
After he clerked on the Second Circuit, Michael Chertoff served as a
clerk to a legendary jurist from the great State of New Jersey--U.S.
Supreme Court Justice William J. Brennan.
Justice Brennan was appointed to the Supreme Court in 1956 by
President Dwight D. Eisenhower, and he spent 34 years on the Court. He
is universally regarded as one of the most influential Justices of the
second half of the 20th century.
If Mr. Chertoff follows the legacy of his mentor, the Third Circuit
is going to be in great hands.
In 1990, Mr. Chertoff became the U.S. attorney for the District of
New Jersey. He remained there until 1994. During his able tenure, he
aggressively tackled organized crime, public corruption, health care,
and bank fraud.
He also played a critical role in helping the New Jersey State
Legislature

[[Page S7530]]

to investigate racial profiling. ``Driving while Black,'' as they say,
should not be a crime in any State in the Nation, and I know Mr.
Chertoff agrees. That is why I introduced the first bill in the Senate
to ban racial profiling. And I am grateful to Mr. Chertoff for the
interest he took in this matter at the State level.
As a result of Michael Chertoff's contribution, I am proud to report
that just a couple of months ago New Jersey enacted the strongest
antiracial profiling law in the Nation. The Third Circuit Court of
Appeals is one of the most impressive courts in the country. Based on
his past performance, I am confident Mr. Chertoff will fit right in.
As you know, I have strongly opposed some of the President's judicial
nominees. I believe some of them are not appropriate for the Federal
bench, not simply because they may not have compiled the kind of record
that speaks to fairness and balance on the bench but because of a
refusal, let's say, to even discuss the views they hold and what their
background might be. I think it is inappropriate.
Again, I did not want to discuss the process. I want to discuss the
individual. And that is where I think we ought to go. But in this case,
we have a candidate, and I stand here as an American, as a Democrat as
well, to fully support the appointment of Michael Chertoff because he
has the talent and ability to render justice fairly.
I believe some of the nominees who came up were on a mission to
curtail fundamental civil rights laws and protections. Others, as I
said, have simply refused to answer important questions that would
permit Senators to execute their constitutional duty for advice and
consent.
The fact is, there are many highly qualified candidates that the
President could nominate to the circuit courts, the appeals courts, who
would enjoy broad support in the Senate from both Democrats and
Republicans. Mr. Chertoff is one such candidate.
So I enthusiastically support his nomination to the Third Circuit. I
urge my fellow Senators to support this consensus nominee who will
serve the people of New Jersey and the Third Circuit ably and
competently.
I thank you, Mr. President, and yield my remaining time to my
colleague from New Jersey.
The PRESIDING OFFICER. The junior Senator from New Jersey.
Mr. CORZINE. Mr. President, it is my pleasure to also speak today in
support of Michael Chertoff, a nominee for the U.S. Circuit Court of
Appeals for the Third Circuit. The Third Circuit Court of Appeals is
one that includes my home State of New Jersey. It is a very
distinguished court and handles a diverse range of issues reflecting,
frankly, the diversity of the people, the economy, the society of that
circuit. It deserves a highly qualified candidate.
I believe the White House, in cooperation and dialog with the
Senators from those areas that are attendant to the Third Circuit, has
been fortunate, in working in that cooperative manner, to have a
nominee as superb as Michael Chertoff.
He has ably served the citizens of New Jersey in a number of
capacities, as my colleague from New Jersey, Senator Lautenberg,
mentioned. Indeed, he has served the Nation and the Department of
Justice, where he is No. 3 today in the criminal justice system. We
will all be privileged to have his sound judgment and legal skills
serving in this critical judicial position.
Mr. Chertoff has impeccable credentials. That is why we support him.
And they are fully disclosed, fully responsive to the kinds of
questions one would raise. You have heard he attended Harvard College,
then Harvard Law School where he was editor of the Law Review. He then
served as a Supreme Court law clerk to Justice Brennan.
He has had a remarkable private practice. In private practice and
public service he has served, in every case, with excellence. He has
developed a reputation of being brilliant. He has an equal reputation
for being tough and fair. And he is a world class litigator and has
earned the respect of his peers and adversaries in court, regardless of
their political background.
While I will acknowledge that I might not always agree with Mr.
Chertoff on every issue--I may have philosophical differences--I find
that no excuse for a loss of support when he is prepared to speak to
the issues about how he will deal with the judgments he will make and
how he will go about forming those judgments in the context of legal
study and the context of constitutional and legal precedent.
While there have been even serious concerns that a number of us have
expressed regarding the prosecution of the war on terrorism, as at
least implemented by the Justice Department--and I share some of those
concerns--I do not believe that impacts a judge when they are willing
to address how they will deal with constitutional precedent. And
Michael Chertoff clearly has done so. I think he is truly a qualified
candidate.
Once again, I mention he was a U.S. attorney, a tough one. He
combated organized crime, public corruption, health care fraud, and
bank fraud. Unlike many of his predecessors--and people who now fill
the position of U.S. attorney--as a U.S. attorney he continued to try
cases himself. He went to court; he took on the highest profile cases
himself. He is actually one of those people who did the work to go into
the courtroom and carry the case.
So I think we have a terrific candidate whom we all can support. I
think there is a precedent here to which all of us can look. Frankly,
this nomination process worked the way it is supposed to work. There
was dialog and consultation with the White House. And when there were
differences of view, there was discussion with those who were involved.
I compliment the White House for how they have worked with the Senators
involved in the process. We have gotten to a positive conclusion
because there has been the kind of dialog and mutual seeking of support
that we look for.
I urge my colleagues to support this nomination. I urge all of us to
look for a more cooperative manner in how we approach the selection of
judges, particularly in the circuit courts, as we go forward.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. LEAHY. How much time do I have remaining?
The PRESIDING OFFICER. Four minutes 45 seconds.
Mr. LEAHY. Mr. President, today, we vote to confirm Michael Chertoff
to serve on the United States Court of Appeals for the Third Circuit.
With this confirmation, the Senate will have confirmed 128 judges,
including 25 circuit court judges, nominated by President Bush.
One hundred judicial nominees were confirmed when Democrats acted as
the Senate majority for 17 months from the summer of 2001 to
adjournment last year. After today, 28 will have been confirmed in the
other 12 months in which Republicans have controlled the confirmation
process under President Bush. This total of 128 judges confirmed for
President Bush is more confirmations than the Republicans allowed
President Clinton in all of 1995, 1996 and 1997 the first 3 full years
of his last term. In those three 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 15 percent and the circuit court total by almost 40 percent
with 6 months remaining to us this year.
Today's confirmation makes the eighth Court of Appeals nominee
confirmed by the Senate just this year. That means that in the first
half of this year, we have exceeded the average for an entire year
achieved by Republican leadership from 1995 through the early part of
2001. The Senate has now achieved more in fewer than 6 full months for
President Bush than Republicans used to allow the Senate to achieve in
a full year with President Clinton. We 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.
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 1995-97. In addition, the
vacancies on the Federal

[[Page S7531]]

courts around the country are significantly lower than the 80 vacancies
Republicans left at the end of 1997. Indeed, we have reduced vacancies
to their lowest level in the last 13 years. Of course, the Senate is
not adjourning for the year and the Judiciary Committee continues to
hold hearings for Bush judicial nominees at between two and four times
as many as we did for President Clinton's.
I hope that the Republican leadership will see fit to schedule
Richard Wesley's nomination to the Second Circuit for a vote this week.
When he is confirmed, he will be the 26th circuit court nominee of this
President to be confirmed by the Senate. I expect that we will also
proceed this week on the nominations of J. Ronnie Greer to be a Federal
trial judge in Tennessee, Mark Kravitz to be a Federal trial judge in
Connecticut and John Woodcock to be a federal trial judge in Maine.
When they are all confirmed, as I expect they will be, the Senate will
have confirmed more than 130 judges in less than 2 years.
As a followup to what the distinguished Senators from New Jersey have
said, this is a case where on paper this could be a controversial
judge, surely for Democrats, as someone who was actively involved in
the Clinton impeachment matters and others. But I have worked with Mr.
Chertoff. I have found him to be fair. I found him to be honest with
me. I also am aware of the fact that the White House took the time--
something they normally don't do, or do not often do, I should say--to
actually consult with the Senators from his home State. That makes a
big difference because we have had problems, of course, where that
hasn't been done or where there has not been consultation or where a
nominee has been sent up to divide us, not unite us.
Mr. REID. Will the Senator yield for a question?
Mr. LEAHY. I will vote without any reservation for Mr. Chertoff.
Of course, I yield.
Mr. REID. Would the distinguished Senator from Vermont confirm that
this is the 128th judge approved during this Bush administration? Is
that a fair statement?
Mr. LEAHY. That is true. That includes 25 circuit judges.
Mr. REID. And the vacancy rate, as I understand it, is extremely low
now on the Federal court system generally; is that a fair statement?
Mr. LEAHY. It is extremely low. Actually the vacancy rate is lower
than the unemployment rate in the country. It probably wouldn't be any,
had it not been for the fact that 60 of President Clinton's nominees
were blocked because 1 or more Republican Senators opposed them--1 or
more. So they never got a vote. And had they gotten a vote, there would
be no vacancy at all.
Mr. REID. It is also true that all this furor created with changing
the rules and all this involves two judges whom the Democrats have
prevented from coming to a vote; namely, Miguel Estrada and Priscilla
Owen. So the count is 128 to 2. Is that a fair statement?
Mr. LEAHY. That is right. We have stopped 2 so far; we have confirmed
128. I would note that friends on the other side of the aisle, when
President Clinton was here, stopped 60, not by votes but by just simply
having 1 or 2 Republicans object so they were never even allowed to
have a vote. In fact, when the Republicans were in charge in 1995 and
1996 and 1997, when President Clinton was here, Republicans allowed 111
judicial nominees to be confirmed and only 18 circuit court judges. In
2\1/2\ years, we have done 128 judges for President Bush and 25 circuit
court judges. So crocodile tears have been shed. Unfortunately, it is
embarrassing when you tell the other side the numbers.
Is there any time remaining on both sides?
The PRESIDING OFFICER. The Senator from Vermont has 1 minute 15
seconds. The Senator from Utah has 30 seconds.
Mr. LEAHY. I withhold my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, all I will say, in yielding back the
remainder of my seconds, is that I have been around here 17 years. I
don't know that I have ever seen a better nominee for any circuit court
in the country. This is one very great lawyer, great human being, good
family man, person with a record that all of us should emulate if we
could. I hope all of our colleagues will vote for Michael Chertoff. He
deserves our vote.
No raw number of confirmations means anything, in and of itself,
while there are not one but two filibusters of exemplary nominees going
on now, potentially more to come, and emergency vacancies continue to
exist. Are we supposed to be grateful that only a few of President
Bush's nominees are being filibustered? Is there an acceptable
filibuster percentage that the Democratic leadership has in mind? The
mere fact that we have to ask these questions makes it crystal clear
that we have a broken process. Even one filibuster of a judicial
nominee is one too many.
As for the allegation that two nominees have been defeated, well, I
for one would not be as quick as some of my Democratic colleagues to
declare that the nominations of Miguel Estrada and Priscilla Owen have
been defeated. We will continue to fight for the confirmation of these
nominees and continue to file for cloture on their nominations. They
are exemplary nominees who deserve to be confirmed.
And as for the implication that it is somehow acceptable to
filibuster two judicial nominees in light of the others that have been
confirmed, I must ask my Democratic colleagues who are leading these
filibusters: Would you ever argue that it is permissible to break two
criminal laws just as long as all the rest are being followed? Of
course not. Nobody would make that argument any more than they would
argue that it is permissible to disregard two of the constitutional
amendments that comprise our Bill of Rights simply because there are
eight others. The confirmation of other Bush judicial nominees in no
way excuses or justifies the shabby treatment inflicted on Miguel
Estrada and Priscilla Owen.
Mr. KENNEDY. Mr. President, I will vote for the nomination of Michael
Chertoff to be a judge on the United States Court of Appeals for the
Third Circuit. Mr. Chertoff has a fine reputation as a prosecutor,
special counsel, and defense attorney. Fellow members of the bar in New
Jersey and the district of Columbia have described him as intelligent,
fair-minded, and hard-working. Furthermore, in his role as the head of
the Justice Department's Criminal Division, certain aspects of his
performance have impressed me. For example, his testimony before our
committee in November 2001, expressing confidence in the ability of our
Federal courts to deal with terrorist suspects, has been important to
the debate over the need for military tribunals.
However, other policies and decisions involving criminal justice
matters during Mr. Chertoff's tenure as assistant Attorney General have
raised serious concerns. At his hearing, I asked Mr. Chertoff extensive
questions about the Justice Department's advocacy on behalf of the
Freeney amendment to the AMBER Alert bill. This Amendment has nothing
to do with protecting children, and everything to do with handcuffing
judges and eliminating fairness in our federal sentencing system. Its
provisions effectively strip Federal judges of discretion to impose
individualized sentences, and transform the longstanding sentencing
guidelines system into a mandatory minimum sentencing system. As Chief
Justice Rehnquist has said, they ``do serious harm to the basic
structure of the sentencing guideline system and . . . seriously impair
the ability of courts to impose just and responsible sentences.''
On April 4, 2003, the Justice Department sent a five-page letter to
Senator Hatch expressing its ``strong support for Congressman Feeney's
amendment to the House version of S. 151.'' This letter was sent only a
few days before the House-Senate conference on the bill and was
influential in persuading the conferees to accept the Feeney amendment.
At his hearing, Mr. Chertoff declined to say how involved he was in
developing the Department's position on the Feeney amendment or whether
he supported it. In his subsequent answers to my written questions, Mr.
Chertoff stated that he ``personally had no part in drafting'' the
Department's April 4 letter and did not ``review it before it was
sent.''

[[Page S7532]]

While I appreciate the more forthcoming nature of Mr. Chertoff's
written answers, I find it remarkable that the head of the Justice
Department's Criminal Division Division did not participate in the
drafting or review of the Department's letter. The Feeney amendment was
very important legislation which substantially altered sentencing
policy for the Federal criminal justice system. It was vigorously
opposed by the Judicial Conference of the United States, the American
Bar Association, the U.S. Sentencing Commission, and many prosecutors,
defense attorneys, law professors, civil rights organizations, and
business groups. As a Federal appellate judge, Mr. Chertoff will soon
be responsible for applying its provisions. He will need to explain to
his new colleagues why he did not do more at the Justice Department to
stop this ill-advised legislation--or at least support Chief Justice
Rehnquist's call for a ``thorough and dispassionate inquiry into the
consequences'' of the Feeney amendment before its enactment.
I was similarly surprised to learn, as Mr. Chertoff acknowledged in
his most recent set of written answers, that neither he nor anyone else
in the criminal division was involved in the decision to deny the
Federal Bureau of Investigation the authority to investigate the recent
gun purchases of suspected terrorists after September 11. This decision
was made in spite of the legal opinion issued by the Office of Legal
Counsel on October 11, 2001, stating that there is ``nothing in the
NICS regulations that prohibits the F.B.I. from deriving additional
benefits from checking audit log records.'' The F.B.I. had previously
conducted such investigations for years. Furthermore, the Justice
Department was at the time aggressively expanding its investigative and
prosecutory powers in response to the 9/11 attacks. Mr. Chertoff could
have, and should have, done more to help the F.B.I. agents
investigating those vicious attacks. As with the Feeney amendment, this
was an example of ideology trumping smart and effective law enforcement
at the Department of Justice.

Finally, I am concerned about inconsistencies in the responses Mr.
Chertoff provided with respect to the debate over the legality of the
interrogation of John Walker Lindh. According to reports in Newsweek
and the New Yorker, John DePue, an attorney in the Terrorism and
Violent Crime Section of the Criminal Division, which Mr. Chertoff
heads now and headed then, called the Professional Responsibility
Advisory Office in December 2001 and requested its opinion on the
propriety of having the F.B.I. interview Lindh. At his hearing, Mr.
Chertoff testified:

[I have to say, Senator, I think the Professional
Responsibility [Advisory] Office was not asked for advice in
this matter. I am familiar with the matter. I was involved in
it.]

In response to my first set of written questions, Mr. Chertoff
stated:

[T]hose at the Department responsible for the Lindh matter
before and during the time of Lindh's interrogation did not
to my knowledge seek PRAO's advice.]

Then, in response to my second set of written questions, Mr. Chertoff
acknowledged that the e-mails published in Newsweek ``indicate that Mr.
DePue initiated contact with PRAO about whether the FBI should question
Walker Lindh and that Ms. Radack responded to that inquiry''--and that
he first learned about theses e-mails in early 2002. I understand that
Mr. Chertoff does not believe that Mr. DePue played a major role in the
Lindh investigation and prosecution, and does not understand why DePue
asked PRAO for its opinion on this matter. Nevertheless, Mr. Chertoff
should have fully shared his knowledge regarding this situation from
the outset, rather than deny that PRAO was asked for its opinion.
According to the New Yorker article published on March 10, 2003, 2
weeks after the Justice Department filed charges against Lindh, Ms.
Radack, a highly qualified employee who received a merit bonus the
previous year, received a ``blistering'' performance evaluation which
severely questioned her legal judgment, and she was advised to get a
new job. Mr. Chertoff has told me that has no knowledge of the facts
surrounding Ms. Radack's employment, performance, or departure from the
Department, and I take him at his word. Nevertheless, I remain very
concerned about Ms. Radack's situation. According to press reprots--and
the Department has never issued any statement disputing them--Ms.
Radack was in effect fired for providing legal advice on a matter
involving ethical duties and civil liberties that high-level officials
at the Department disagreed with. Furthermore, after Ms. Radack
notified Justice Department officials that they had failed to turn over
several e-mails requested by the Federal court, Department officials
notified the managing partners at Ms. Radack's new law firm that she
was the target of a criminal investigation. I submitted questions to
Attorney General Ashcroft regarding this matter in March, and I await
his response.
Notwithstanding my concerns about Mr. Chertoff's performance as head
of the criminal division--as well as initial failure, later corrected,
to provide serious, consistent, and responsive answers to the questions
asked by members of the Judiciary Committee--I am supporting his
nomination to the Third Circuit. I am doing so based on his fine
reputation as a lawyer, his achievements as a prosecutor and special
counsel to the New Jersey legislature, and his assurances that as a
judge he will apply the law with independence, integrity, and a
commitment to due process and the core constitutional values embedded
in the fabric of our democracy. My support for Mr. Chertoff's
nomination today, however, should not be interpreted as an endorsement
or approval for any other position.
Mr. LEAHY. Mr. President, I know Mr. Chertoff is waiting, biting his
nails, wondering if he will get through this. I would mention for those
of my colleagues who might actually be watching this, I will vote for
him. I will support him. I urge them to do the same.
I yield back the remainder of my time and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The question is, Will the Senate advise and consent to the nomination
of Michael Chertoff, of New Jersey, to be a United States Circuit Judge
for the Third Circuit? On this question, the yeas and nays have been
ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Colorado (Mr.
Campbell), the Senator from Alaska (Ms. Murkowski), the Senator from
Oregon (Mr. Smith), the Senator from Alaska (Mr. Stevens), and the
Senator from Missouri (Mr. Talent) are necessarily absent.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the
Senator from North Carolina (Mr. Edwards), the Senator from Hawaii (Mr.
Inouye), the Senator from Massachusetts (Mr. Kerry), the Senator from
Louisiana (Ms. Landrieu), and the Senator from Connecticut (Mr.
Lieberman) are necessarily absent.
I further announce that if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``aye.''
The PRESIDING OFFICER (Mrs. Dole). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 88, nays 1, as follows:

[Rollcall Vote No. 211 Ex.]

YEAS--88

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

NAYS--1

Clinton

[[Page S7533]]

NOT VOTING--11

Biden
Campbell
Edwards
Inouye
Kerry
Landrieu
Lieberman
Murkowski
Smith
Stevens
Talent
The nomination was confirmed.

____________________