[Congressional Record Volume 149, Number 85 (Wednesday, June 11, 2003)]
[Senate]
[Pages S7662-S7665]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF RICHARD C. WESLEY TO BE UNITED STATES CIRCUIT JUDGE FOR 
                           THE SECOND CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session to consider Executive Calendar No. 220, which 
the clerk will report.
  The assistant legislative clerk read the nomination of Richard C. 
Wesley, of New York, to be United States Circuit Judge for the Second 
Circuit.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I yield myself time.
  As the two distinguished Senators from New York are in the Chamber, I 
will yield my time to them adding only this: This is a nominee to one 
of the most important courts in the country. It is actually my circuit. 
It is a Republican nominee, nominated by a Republican President. I 
predict that the nominee is going to go through easily because, 
contrary to the normal procedure on some of these nominees, the White 
House has sent up somebody who can unite us, not divide us. Usually 
they send nominees who divide us and not unite us. This is an example 
of what happens when a nominee to a powerful court is sent up who will 
unite us and not divide us.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I join my colleague from Vermont and my 
colleague from New York in supporting the nomination of Judge Wesley.
  I rise in enthusiastic support of Richard Wesley's nomination to the 
Second Circuit Court of Appeals.
  Like most of the nominees we see, Judge Wesley has a top-flight legal 
mind and experience. He graduated from SUNY-Albany summa cum laude

[[Page S7663]]

and from Cornell Law School. He worked in private practice for several 
years, worked as a staffer to the minority leader of the New York State 
Assembly, and from 1983 to 1987, represented the 136th District in the 
assembly.
  That was just after I left the assembly, so I never had the privilege 
of actually serving with him, but my former colleagues in the assembly, 
many of whom disagreed on policy with Judge Wesley, all have spoken 
very highly of both his capabilities and his integrity.
  Judge Wesley has served on the State trial court in New York, the 
intermediate appellate court, and for the past 6 years on New York's 
highest court, the court of appeals. He has the distinction of being 
appointed to the bench by both Governor Cuomo and Governor Pataki. 
Clearly there is a serious history of bipartisan support.
  His nomination has been examined by his good friend and my friend 
Congressman Reynolds, as well as by Bill Paxon. They have known him for 
a very long time and vouch for him as well. I do not think Judge Wesley 
would have gotten where he did without the push from Tom Reynolds, and 
I think we all appreciate it because we are adding a qualified person 
to the bench.
  There is no question Judge Wesley is well-qualified, but as my 
colleagues know, legal excellence is only one of the three criteria I 
use when evaluating judicial nominees. I also look at diversity and 
moderation.
  Judge Wesley is the third Second Circuit judge we have considered 
under the Bush administration.
  Judge Barrington Parker, who we confirmed in 2001, is African-
American, and Judge Reena Raggi, who we confirmed in 2002, is a woman. 
So we are doing quite well on diversity when it comes to recent 
nominations to that court.
  Our experience with the Second Circuit on excellence and diversity is 
similar to our experience with the President's nominations to the other 
circuit courts. By and large, he has done a good job bringing us well-
qualified nominees who are not exclusively white males.
  It is on that third prong, moderation, where we have had some 
problems. I am pleased to say that Judge Wesley fits quite well with 
Judge Parker and Judge Raggi as being well within the mainstream.
  I would like to read what Judge Wesley said about his own judicial 
philosophy:

       I consider myself a conservative in nature, pragmatic at 
     the same time, with a fair appreciation of judicial 
     restraint. I have always restricted myself to what I 
     understand to be the plain language of the statue and not 
     gone beyond that [because] public policy is made by the 
     legislature.

  That is an honest and candid assessment of how Judge Wesley judges.
  It is not just words. We have had nominees who have come before us 
and said that, but this is what he has done because he has a record. He 
has had 16 years on the bench to back it up. We know Judge Wesley has 
certain positions in which he personally believes. He has an ideology. 
That is clear from several of the votes he took in the assembly. For 
instance, in the assembly he voted the pro-life point of view. That is 
different from mine. And, of course, I do not have a litmus test. Most 
of us do not.
  What is abundantly clear from his record on the bench is that he can 
check his personal beliefs at the door and judge fairly and honestly.
  Unlike, some of the nominees we have seen, including Bill Pryor, the 
Fifth Circuit nominee whose contentious hearing is going on in the 
Judiciary Committee as we speak, there is nothing controversial about 
Judge Wesley.
  He is best known for his thoughtful, scholarly approach that unites 
judges behind unanimous opinions.
  He is truly a uniter, not a divider. He is a judge, not an activist. 
He will be a credit to New York, to the Second Circuit, and to the 
Senate when we confirm him.
  It would be my wish that this would be the character of the 
President's nominees. I ask unanimous consent that an editorial from 
Judge Wesley's hometown paper, the Rochester D&C, Democrat and 
Chronicle, be printed in the Record. It says: ``Bipartisan Support?'' 
And then it says:

       If only more judicial nominees would go as smoothly as this 
     one.

  Well, I wish that would happen.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Rochester D&C, June 4, 2003]

                          Bipartisan Support?

       If only more judicial nominations would go as smoothly as 
     this one.
       In an era in which partisan bickering over judicial 
     nominations has become almost routine, it's significant that 
     New York Appeals Court Judge Judge Richard Wesley has 
     bipartisan backing for his nomination to a federal court.
       For the sake of the nation's judiciary, hope that Wesley's 
     easy confirmation hearing before the Senate Judiciary 
     Committee last week will become a model for handling 
     presidential nominations to federal judgeships. Wesley, a 
     resident of Livonia in Livingston County, is now virtually 
     assured of winning confirmation by the Senate Judiciary 
     Committee and the full Senate when they vote on the 
     nomination.
       Wesley's smooth sailing had a lot to do with the strong 
     support he had from Sens. Charles Schumer and Hillary 
     Clinton, both Democrats, and Republican Rep. Tom Reynolds, 
     who represents parts of this region. Wesley, appointed to 
     state courts by former Democratic Gov. Mario Cuomo and 
     Republican Gov. Pataki, is a GOP conservative, who Schumer 
     described as having ``moderate views.''
       Maybe if the Bush administration selected more judges of 
     Wesley's caliber there'd be less of the antagonism that 
     typically surrounds too many judicial nominations.

  Mr. SCHUMER. It will happen if the President truly consults with us 
and nominates judges in the mold of Judge Wesley, clearly conservative 
but also clearly within the mainstream. It would be my hope that we 
would not have 51 votes for many of the nominees but 100 for most all 
of the nominees, or close to it. If this President should decide to 
treat the nominees and the rest of the country the way he is treating 
nominees in the Second Circuit, that is what would happen. That is my 
hope. That is my prayer.
  I urge every one of my colleagues to vote for this fine addition to 
the bench. We are all proud of him in New York State, and he will make 
a great addition to the Second Circuit.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Mr. President, I rise to join my colleague from New 
York in expressing my very strong support for the nomination of New 
York State Court of Appeals Judge Richard C. Wesley to the United 
States Court of Appeals for the Second Circuit.
  A few weeks ago, I was honored to testify before the Judiciary 
Committee in support of this nominee because I believe then, as I do 
today, that he will make a fine addition to the Second Circuit and will 
serve that court with distinction. I was also pleased to see supporting 
Judge Wesley's nomination, his mother Beatrice, ``Betty'' Wesley and 
his children Sarah and Matthew. They and his wife Kathryn are all very 
proud of him, and have every reason to be so proud.

  The calls and letters of support I have received about Judge Wesley 
from a wide variety of distinguished members of the legal profession 
are a testament to his qualities of high intellect, judicial 
temperament, caring for the profession and, most importantly, 
commitment to justice.
  Having a significant public service record is not a requirement for 
serving on our Federal judiciary. But it is very significant to note 
that Judge Wesley has spent most of his career serving the public 
trying to make New York a better place for our children and families.
  He has had a distinguished academic career, graduating summa cum 
laude from Cornell University Law School. He did have the experience in 
private practice and in the legislative body, the New York State 
assembly. He has served on trial and appellate New York courts.
  In addition to performing his professional duties to the highest 
standards, he has taken an interest and taken the time to become 
involved in other significant pressing problems. As a trial court 
judge, Judge Wesley instituted a felony screening program in Monroe 
County that reduced the delays in processing felony cases by over 60 
percent. The program proved so successful that it served as a model for 
judicial districts across our State.
  In 1993, he created the JUST Program, which for a decade has provided

[[Page S7664]]

services to court and criminal justice agencies, again in Monroe 
County, to monitor preplea and presentence defendants and to provide 
alternatives, where appropriate, to incarceration.
  I am also very impressed that Judge Wesley has been a champion for 
victims of domestic violence. He has been in the forefront for years in 
providing shelters for victims of domestic violence, primarily women 
and their children. He has championed their rights in court and he has 
sought to help provide the resources that would give these victims 
another chance.
  After 7 years on the trial court, he was appointed to the appellate 
division and then to New York's highest appellate court, the New York 
State Court of Appeals. Judith Kaye, the Chief Judge of that court, 
cannot say enough about Judge Wesley's contributions. I am sure he will 
be greatly missed as he starts his new career on the Second Circuit.
  This is a very positive nomination. He will not only make his former 
colleagues proud and he will certainly make lawyers everywhere proud, 
but he will especially make Western New York proud because once 
confirmed, Judge Wesley will be the first Western New Yorker--for those 
who are not from New York, that includes places such as Rochester, 
Buffalo, and Jamestown, places on the other end of our very diverse, 
large State--to be confirmed as an associate judge of the Second 
Circuit since 1974.
  Although it is very clear that Judge Wesley and I do not agree on 
every policy or legal issue, and I have no way of knowing how Judge 
Wesley will vote when these important issues come before him, I have 
every confidence in his professional preparation, in his temperament 
and demeanor, in his commitment to justice. He may be a conservative 
Republican, but he is a judge and an American first.
  I join my colleague, the ranking member on the Judiciary Committee, 
in expressing the very strong wish that we could have more nominees 
like Judge Wesley, someone who comes from a Republican President, who 
is easily confirmed by a bipartisan majority, proceeded by a unanimous 
vote in the Judiciary Committee. I predict he will be confirmed on this 
floor unanimously. Why? Because although Judge Wesley is not of my 
party, he may not be of my judicial philosophy, he already in his 
judicial career decided cases differently than I would have, had I been 
sitting on that bench, he is a person whom we always know will put the 
interests of justice first, and will preside in a totally 
nonideological, nonpartisan manner. That is what every judge should be 
doing.
  It is certainly the responsibility of the Senate to advise and 
consent so that our Federal judiciary, which consists of lifetime 
appointments, will be filled by people of the caliber of Judge Wesley.
  I yield the floor.
  Mr. HATCH. Mr. President, I am pleased that we are considering the 
nomination of Richard C. Wesley, who has been nominated by President 
Bush to serve on the United States Court of Appeals for the Second 
Circuit. He has an outstanding record of distinguished public service 
and will be a great addition to the Second Circuit.
  Judge Wesley currently serves as an associate judge on the New York 
Court of Appeals, the State's highest court, having been unanimously 
confirmed by the State senate in 1997. His 16 years on the trial and 
appellate bench, plus prior service as a member of the New York State 
Assembly, has given him the experience and background to make an 
outstanding Second Circuit Judge.
  In addition to his judicial experience, Judge Wesley has had a 
distinguished legal career. After graduating from Cornell Law School, 
he began his legal career in 1974 as an associate at the Pittsford, NY, 
office of Harris, Beach and Wilcox. He achieved a partnership at Welch, 
Streb, Porter, Meyer & Wesley in Geneseo, NY, in 1977 and in 1979, 
became assistant counsel to the minority leader of the New York State 
Assembly in Albany. In 1983, he was elected to the New York Assembly 
himself, representing his home district in western New York.
  Judge Wesley began his judicial career in 1987, when he was elected 
to the Seventh Judicial District of the Supreme Court of New York. From 
1991 to 1994, he served as the supervising judge for the Criminal 
Courts within the Supreme Court, and in 1994 Governor Cuomo appointed 
him to the Appellate Division of the Supreme Court in Rochester, where 
he heard appeals of Supreme Court trial decisions from central and 
western New York. On December 3, 1996, Governor Pataki nominated Judge 
Wesley to the New York Court of Appeals. Judge Wesley was confirmed by 
a unanimous vote of the New York State Senate on January 14, 1997, and 
has served with distinction on the State's highest court ever since. 
His 16 years as a judge at both trial and appellate levels, plus prior 
service as a State assemblyman in New York, have given him the 
experience and background to make an outstanding Second Circuit judge.
  Judge Wesley is a native of Livonia, NY, and has served his 
community, State, and Nation in a variety of ways. Not only has he 
served in his professional capacity, but also he believes in community 
service and has been involved in community service organizations such 
as the United Church of Livonia, Chances and Changes, a community-based 
organization in Livingston County that provides safe housing to 
battered women, and the Myers Foundation, a foundation based in his 
hometown that helps needy families in the area. Judge Wesley is also 
active in a number of local youth sports programs and serves as a 
driver for the Livonia Volunteer Ambulance.
  In addition to his public and community service, Judge Wesley has 
been actively involved in efforts to improve the legal and judicial 
process. He has been a leader in numerous bar associations and law-
related organizations. For example, he serves on the Cornell Law School 
Advisory Council and the Cornell University Council, and is a Fellow of 
the New York State Bar Foundation. In January of 1991, Judge Wesley was 
appointed by the chief administrator of the courts to be the 
supervising judge of the Criminal Courts in the Seventh Judicial 
District, and in this capacity developed case management systems that 
greatly improved the efficiency of the court's criminal docket. These 
reforms have since served as models for other jurisdictions with heavy 
criminal caseloads.
  Judge Wesley comes to us highly recommended and warmly endorsed by 
his colleagues and former colleagues on the New York State courts, 
litigants who know him personally and have practiced in his courtrooms, 
the president of the New York State Bar Association, community leaders 
in his hometown of Livonia, NY, Gov. George Pataki, and New York's 
attorney general, Eliot Spitzer. Let me read a few statements made by 
some of his many supporters. Jonathan Lippmann, chief administrative 
judge of the State of New York, writes that Judge Wesley, ``has been a 
model of the wisdom, temperament, craftsmanship, and personal qualities 
that make for the most outstanding judges.'' Joseph Bellacosa, dean of 
the St. John's University Law School and a former colleague on the New 
York Court of Appeals, writes that Judge Wesley ``is intellectually 
curious and open to fresh ideas and insights of others, respectful of 
the great strength derived from collegial shared wisdom of others, yet 
confident and resolute in his personal conviction on values and 
fundamental principles. He is also a tireless worker and seeker of 
equal justice for all. He loves being a Judge and is devoted to the 
fair administration of justice under the rule of law.'' And Governor 
Pataki has also written, praising Judge Wesley's excellence as an 
appellate jurist and specifically noting his ``wealth of experience, 
intellect, integrity and judicial temperament.''
  The legal bar's wide regard for Judge Wesley is further reflected in 
his evaluation by the American Bar Association. The ABA evaluates 
judicial nominees based on their professional qualifications, their 
integrity, their professional competence, and their judicial 
temperament. The ABA has bestowed upon Judge Wesley its highest rating 
of Unanimously Well Qualified.
  The record is clear that Judge Wesley is worthy of confirmation for 
this position of high responsibility on the Court of Appeals for the 
Second Circuit. I strongly support his confirmation and urge my 
colleagues to do likewise.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. How much time remains?

[[Page S7665]]

  The PRESIDING OFFICER. Two minutes.
  Mr. LEAHY. I thank the Chair.
  Today, we vote to confirm Richard Wesley to serve on the United 
States Court of Appeals for the Second Circuit, the Federal circuit 
covering Vermont, New York, and Connecticut. With this confirmation we 
will have filled the sole vacancy on this circuit court. I remember 
when President Clinton had multiple nominees pending before the Senate 
for the five simultaneous vacancies that then existed. The entire 
circuit was declared a judicial emergency by the chief judge, and he 
had to resort to three-judge panels with only one Second Circuit judge. 
Republicans were not moving those nominations at that time. All of the 
Senators from the Second Circuit joined together to work for their 
confirmation, and we were finally able to confirm them all, including 
Judge Sonia Sotomayor, after significant efforts. This nomination did 
not suffer those needless delays. With the support of Senator Schumer 
and Senator Clinton, this nomination has been considered expeditiously.
  The Senate has already confirmed 129 judges, including 26 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, 29 will have been confirmed in the other 12 months in which 
Republicans have controlled the confirmation process under President 
Bush. This total of 129 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 
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 15 percent and the 
circuit court total by 40 percent with 6 months remaining to us this 
year.
  Today's confirmation makes the ninth 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 of seven per 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 courts around the country are significantly 
lower than the 80 vacancies Republicans left at the end of 1997. We 
continue well below the 67 vacancy level that Senator Hatch used to 
call ``full employment'' for the Federal judiciary.
  Indeed we have reduced vacancies to their lowest level in the last 13 
years. So while unemployment has continued to climb for Americans to 
6.1 percent last month, the Senate has helped lower the vacancy rate in 
federal courts to an historically low level that we have not witnessed 
in over a decade. 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 he did for 
President Clinton's.
  For those who are claiming that Democrats are blockading this 
President's judicial nominees, this is another example of how quickly 
and easily the Senate can act when we proceed cooperatively with 
consensus nominees. The Senate's record fairly considered has been 
outstanding--especially when contrasted with the obstruction of 
President Clinton's moderate judicial nominees by Republicans between 
1996 and 2001.
  I hope the White House would note the strong support for this 
conservative Republican nominee to the Second Circuit. I know my good 
friends from New York are aware this is a case where the White House 
actually worked with them and consulted with them on a nominee. That 
has not been the case of other parts of this country that has brought 
about divisiveness.
  Again I urge, and I have been urging for a little over 2 years, the 
White House might start a new course, one of seeking to unite and not 
divide our judicial nominees, to have consultation, not arbitrariness, 
on judicial nominees.
  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 Richard C. Wesley, of New York, to be United States Circuit Judge 
for the Second 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. McCONNELL. I announce that the Senator from Illinois (Mr. 
Fitzgerald) is necessarily absent.
  Mr. REID. I announce that the Senator from Florida (Mr. Graham), the 
Senator from South Carolina (Mr. Hollings), and the Senator from 
Connecticut (Mr. Lieberman) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 96, nays 0, as follows:

                      [Rollcall Vote No. 215 Ex.]

                                YEAS--96

     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
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--4

     Fitzgerald
     Graham (FL)
     Hollings
     Lieberman
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be notified of the Senate's 
action.

                          ____________________