[Congressional Record Volume 149, Number 176 (Tuesday, December 9, 2003)]
[Senate]
[Pages S16151-S16153]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE SESSION

                                 F_____
                                 

                           EXECUTIVE CALENDAR

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
immediately proceed to executive session to consider the following 
nominations on today's Executive Calendar: Calendar Nos. 132, 199, 200, 
316, 410, 417, 419, 421, 434, 435, 451, 452, 453, 454, 456, 458, 459, 
460, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 475, 476, 
477, 479, 483, 485, 486, 487, 489, 491, 492, 493, 494, 510, 526, 527, 
529, 532, and 474.


                         Nominations Discharged

  I further ask unanimous consent that the following nominations be 
discharged from the Foreign Relations Committee and the Senate proceed 
to the nominations en bloc: David Mulford, PN 1110; James Oberwetter, 
PN 1113; further, that the following nominations be discharged from the 
Banking Committee and the Senate proceed to their consideration: April 
Foley, PN 1155; Joseph Max Cleland, PN 1154.
  I further ask unanimous consent that the nominations be confirmed en 
bloc, the motions to reconsider be laid upon the table, the President 
be immediately notified of the Senate's action, and the Senate then 
return to legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The nominations considered and confirmed en bloc are as follows:


                             the judiciary

       Bruce E. Kasold, of Virginia, to be a Judge of the United 
     States Court of Appeals for Veterans Claims for the term 
     prescribed by law.


                     african development foundation

       Ephraim Batambuze, of Illinois, to be a Member of the Board 
     of Directors of the African Development Foundation for a term 
     expiring February 9, 2008.
       John W. Leslie, Jr., of Connecticut, to be a Member of the 
     Board of Directors of the African Development Foundation for 
     a term expiring September 22, 2007.


                          department of labor

       Howard Radzely, of Maryland, to be Solicitor for the 
     Department of Labor.


                             the judiciary

       George W. Miller, of Virginia, to be a Judge of the United 
     States Court of Federal Claims for the term of fifteen years.


                       department of the interior

       David Wayne Anderson, of Minnesota, to be an Assistant 
     Secretary of the Interior.


                      department of transportation

       Karan K. Bhatia, of Maryland, to be an Assistant Secretary 
     of Transportation.


               metropolitan washington airports authority

       Charles Darwin Snelling, of Pennsylvania, to be a Member of 
     the Board of Directors of the Metropolitan Washington 
     Airports Authority for the remainder of the term expiring May 
     30, 2006.


                  united states sentencing commission

       William K. Sessions III, of Vermont, to be a Member of the 
     United States Sentencing Commission for a term expiring 
     October 31, 2009.


                         department of justice

       David L. Huber, of Kentucky, to be United States Attorney 
     for the Western District of Kentucky for the term of four 
     years.


                     election assistance commission

       Paul S. DeGregorio, of Missouri, to be a Member of the 
     Election Assistance Commission for a term of two years.
       Gracia M. Hillman, of the District of Columbia, to be a 
     Member of the Election Assistance Commission for a term of 
     two years.
       Raymundo Martinez III, of Texas, to be a Member of the 
     Election Assistance Commission for a term of four years.
       Deforest B. Soaries, Jr., of New Jersey, to be a Member of 
     the Election Assistance Commission for a term of four years.


                             the judiciary

       D. Michael Fisher, of Pennsylvania, to be United States 
     Circuit Judge for the Third Circuit.


                          department of state

       Edward B. O'Donnell, Jr., of Tennessee, a Career Member of 
     the Senior Foreign Service, Class of Counselor, for the rank 
     of Ambassador during his tenure of service as Special Envoy 
     for Holocaust Issues.
       Jon R. Purnell, of Massachusetts, a Career Member of the 
     Senior Foreign Service, Class of Counselor, to be Ambassador 
     Extraordinary and Plenipotentiary of the United States of 
     America to the Republic of Uzbekistan.
       Margaret DeBardeleben Tutwiler, of Alabama, to be Under 
     Secretary of State for Public Diplomacy.
       Louise V. Oliver, of the District of Columbia, for the rank 
     of Ambassador during her tenure of service as the United 
     States Permanent Representative to the United Nations 
     Educational, Scientific, and Cultural Organization.
       William J. Hudson, of Virginia, a Career Member of the 
     Senior Foreign Service, Class of Minister-Counselor, to be 
     Ambassador Extraordinary and Plenipotentiary of the United 
     States of America to the Republic of Tunisia.
       Margaret Scobey, of Tennessee, a Career Member of the 
     Senior Foreign Service, Class of Minister-Counselor, to be 
     Ambassador Extraordinary and Plenipotentiary of the United 
     States of America to the Syrian Arab Republic.
       Thomas Thomas Riley, of California, to be Ambassador 
     Extraordinary and Plenipotentiary of the United States of 
     America to the Kingdom of Morocco.
       Jackie Wolcott Sanders, for the rank of Ambassador during 
     her tenure of service as United States Representative to the 
     Conference on Disarmament and the Special Representative of 
     the President of the United States for Non-Proliferation of 
     Nuclear Weapons.
       Mary Kramer, of Iowa, to be Ambassador Extraordinary and 
     Plenipotentiary of the United States of America to Barbados 
     and to serve concurrently and without additional compensation 
     as Ambassador Extraordinary and Plenipotentiary of the United 
     States of America to St. Kitts and Nevis, Saint Lucia, 
     Antigua and Barbuda, the Commonwealth of Dominica, Grenada, 
     and Saint Vincent and the Grenadines.
       Timothy John Dunn, of Illinois, a Career Member of the 
     Senior Foreign Service, Class of Counselor, for the rank of 
     Ambassador during his tenure of service as Deputy Permanent 
     Representative to the Organization of American States.
       James Curtis Struble, of California, a Career Member of the 
     Senior Foreign Service, Class of Minister-Counselor, to be 
     Ambassador Extraordinary and Plenipotentiary of the United 
     States of America to the Republic of Peru.


                    inter-american development bank

       Hector E. Morales, of Texas, to be United States Alternate 
     Executive Director of the Inter-American Development Bank.


                          department of state

       Marguerita Dianne Ragsdale, of Virginia, a Career Member of 
     the Senior Foreign Service, Class of Counselor, to be 
     Ambassador Extraordinary and Plenipotentiary of the United 
     States of America to the Republic of Djibouti.
       Stuart W. Holliday, of Texas, to be Alternate 
     Representative of the United States of America for Special 
     Political Affairs in the United Nations, with the rank of 
     Ambassador.


                department of health and human services

       Jennifer Young, of Ohio, to be an Assistant Secretary of 
     Health and Human Services.
       Michael O'Grady, of Maryland, to be an Assistant Secretary 
     of Health and Human Services.


             chemical safety and hazard investigation board

       Rixio Enrique Medina, of Oklahoma, to be a Member of the 
     Chemical Safety and Hazard Investigation Board for a term of 
     five years.


                         department of justice

       James B. Comey, of New York, to be Deputy Attorney General.
       Federico Lawrence Rocha, of California, to be United States 
     Marshal for the Northern District of California for the term 
     of four years.


                      department of transportation

       Jeffrey A. Rosen, of Virginia, to be General Counsel of the 
     Department of Transportation.


                  corporation for public broadcasting

       Elizabeth Courtney, of Louisiana, to be a Member of the 
     Board of Directors of the Corporation for Public Broadcasting 
     for a term expiring January 31, 2010.
       Elizabeth Courtney, of Louisiana, to be a Member of the 
     Board of Directors of the Corporation for Public Broadcasting 
     for the remainder of the term expiring January 31, 2004.
       Cheryl Feldman Halpern, of New Jersey, to be a Member of 
     the Board of Directors of the Corporation for Public 
     Broadcasting for a term expiring January 31, 2008.


                       department of the treasury

       Arnold I. Havens, of Virginia, to be General Counsel for 
     the Department of the Treasury.


                       office of special counsel

       Scott J. Bloch, of Kansas, to be Special Counsel, Office of 
     Special Counsel, for the term of five years.


                 federal deposit insurance corporation

       Thomas J. Curry, of Massachusetts, to be a Member of the 
     Board of Directors of the Federal Deposit Insurance 
     Corporation for a term of six years.


                     federal housing finance board

       Alicia R. Castaneda, of the District of Columbia, to be a 
     Director of the Federal Housing Finance Board for a term 
     expiring February 27, 2004.
       Alicia R. Castaneda, of the District of Columbia, to be a 
     Director of the Federal Housing Finance Board for a term 
     expiring February 27, 2011.


                             the judiciary

       Lawrence B. Hagel, of Virginia, to be a Judge of the United 
     States Court of Appeals for Veterans Claims for the term 
     prescribed by law.


             corporation for national and community service

       David Eisner, of Maryland, to be Chief Executive Officer of 
     the Corporation for National and Community Service.

[[Page S16152]]

       Carol Kinsley, of Massachusetts, to be a Member of the 
     Board of Directors of the Corporation for National and 
     Community Service for a term expiring October 6, 2006.
       Read Van de Water, of North Carolina, to be a Member of the 
     National Medication Board for a term expiring July 1, 2006.


                        national mediation board

       Read Van de Water, of North Carolina, to be a Member of the 
     National Medication Board for a term expiring July 1, 2006.


                          department of labor

       Steven J. Law, of the District of Columbia, to be Deputy 
     Secretary of Labor, vice Donald Cameron Findlay, resigned.


                          department of state

       David C. Mulford, of Illinois, to be Ambassador 
     Extraordinary and Plenipotentiary of the United States of 
     America to India.
       James C. Oberwetter, of Texas, to be Ambassador 
     Extraordinary and Plenipotentiary of the United States of 
     America to the Kingdom of Saudi Arabia.


                           export-import bank

       Joseph Max Cleland, of Georgia, to be a Member of the Board 
     of Directors of the Export-Import Bank of the United States 
     for a term expiring January 20, 2007.
       April H. Foley, of New York, to be First Vice President of 
     the Export-Import Bank of the United States for the remainder 
     of the term expiring January 20, 2005.

  Mr. HATCH. Mr. President, I stand today in strong support of D. 
Michael Fisher, who has been nominated to serve for the U.S. Court of 
Appeals for the Third Circuit. Let me speak briefly about his 
background and the reasons I endorse his confirmation.
  Attorney General Fisher has extensive legislative experience, having 
served for 22 years in the Pennsylvania General Assembly. He has also 
practiced in civil litigation for close to 20 years. Parenthetically, I 
would note my understanding that Attorney General Fisher's first law 
office was across the hall from my law office in Pittsburgh--the 9th 
floor of the Frick Building--in 1970. Since 1997, Attorney General 
Fisher has served as Pennsylvania Attorney General and he has been a 
great leader. He coauthored Pennsylvania's Megan's Law; he supported 
the passage of a State DNA postconviction statute; and he helped 
negotiate the landmark national tobacco settlement.
  Attorney General Fisher's nomination is widely supported. His 
endorsers include Democratic Pennsylvania Governor Edward Rendell, the 
bipartisan 19-member Pennsylvania delegation to the U.S. House of 
Representatives, Pennsylvania State legislators, the Pennsylvania 
District Attorneys Association, and the Pennsylvania Trial Lawyers 
Association. He is also fully endorsed by serving attorneys general 
from across the country. The former attorney general of Tennessee, 
Charles W. Burson, who also served as legal counsel for former Vice 
President Gore, has written in support of Attorney General Fisher's 
nomination: ``While [Attorney General Fisher] and I may differ on 
particular issues, I am certain that as a Federal Appellate Judge, he 
will deliberately, and with an even hand, apply the law to the facts 
and render sound judgments.''
  I cannot recall seeing such a range of support for a judicial nominee 
as Attorney General Fisher enjoys. It is truly impressive and speaks 
well of him.
  I will support Attorney General Fisher's confirmation, and I urge my 
colleagues to do the same.
  Mr. LEAHY. Mr. President, I am troubled today that the Senate is 
proceeding to a vote on the nomination of D. Michael Fisher to a 
lifetime appointment to the U.S. Court of Appeals for the Third 
Circuit, when there is an open verdict against him in a Federal civil 
rights case. While Mr. Fisher has considerable bipartisan support, it 
is unfortunate that the committee vote, and now the Senate vote, on his 
nomination could not have at least waited for the district court judge 
in the pending civil rights case to rule on Mr. Fisher's motion 
challenging the jury verdict against him.
  Over the course of this year in the Judiciary Committee, we have seen 
a number of firsts. At the first nominations hearing of the year, for 
the first time ever, Republicans unilaterally scheduled three 
controversial circuit court nominees at one hearing contrary to a long-
established agreement and practices of the committee. Then we saw 
Republicans declare that the longstanding committee rules protecting 
the rights of the minority would be broken when Rule IV was violated. A 
rule that was adopted 25 years ago--in order to balance the need to 
protect the minority members of the committee with the desire of the 
majority to proceed--was unilaterally reinterpreted to override the 
rights of the minority for the first time in our history. For the first 
time ever, this year, Republicans insisted on proceeding on nominations 
that the committee had previously voted upon and rejected after full 
and fair hearings and debate. Of course that followed the first ever 
resubmission by a President of the names of defeated nominees for 
appointment to those same judgeships.
  Several other practices were reversed from when a Democratic 
President was making nominations in light of the Republican affiliation 
of the current President. This committee has proceeded on nominations 
that did not have the approval of both home-State Senators. Moreover, 
this committee altered its prior practice and overrode the objections 
of home-State Senators to vote on the nominations of Carolyn Kuhl in 
spite of the opposition of both home-State Senators. Then, in 
connection with a nomination to the circuit court from Michigan, this 
committee for the first time proceeded with a hearing in spite of the 
opposition of both home-State Senators.
  The hearing on the nomination of Michael Fisher to the U.S. Court of 
Appeals for the Third Circuit was also unprecedented. Never before to 
my knowledge has a President nominated to a lifetime position on a 
Federal circuit court or this committee held a hearing on a judicial 
nominee with an outstanding jury verdict naming him as personally 
liable for civil rights violations. In February 2003, a Federal jury in 
the U.S. District Court for the Middle District of Pennsylvania found 
that Mr. Fisher and other high level officials of the Pennsylvania 
Office of the Attorney General violated the civil rights of two 
plaintiffs, former narcotics agents with the Bureau of Narcotics 
Investigation, BNI, in Philadelphia. Never before in the history of 
Federal judicial nominees of which I am aware, has a nominee ever come 
before this committee with an outstanding judgment against him for so 
serious a claim.
  The jury verdict is so recent that the trial transcript was only 
delivered to the parties within the last several weeks, and so complex 
that even Mr. Fisher and his lawyers asked for extensions of time in 
order to complete their post-trial motions. Just 6 weeks ago, Mr. 
Fisher and the other defendants filed their brief in support of their 
motion for judgment as a matter of law or a new trial. Soon, the 
Federal district court trial judge will review the verdict against Mr. 
Fisher and make a decision on Mr. Fisher's motion. If the jury verdict 
is sustained by the district court judge, an appeal would lie to the 
very court to which Mr. Fisher has been nominated. Mr. Fisher has 
indicated that he intends to pursue all appellate options if the 
verdict is not reversed. These, too, appear to be unique circumstances.
  Accordingly, this is a most unusual vote today. As the administration 
and Republican majority have abandoned traditional practices and 
standards, we are being confronted with more and more difficulties. The 
few judicial nominations on which the Senate has withheld a final vote 
this year have each presented extraordinary circumstances or nominees 
with extreme positions. During the years in which President Clinton was 
in the White House, Republicans attempted a number of filibusters and, 
when they were in the majority, successfully prevented votes on more 
than 60 judicial nominees, including a number of nominees to the 
Federal courts in Pennsylvania.
  At Mr. Fisher's hearing, I indicated that I had not yet reached a 
determination about his nomination but was troubled by the jury 
verdict. I have now reviewed the trial transcript and materials from 
the civil rights case. Mr. Fisher has been found liable by a jury for 
violating the constitutional rights of his employees. Mr. Fisher 
testified at trial that he had knowledge of and approved of the actions 
found by the jury to be retaliatory. The jury found that he acted 
maliciously or wantonly and awarded the plaintiffs punitive damages. We 
should all be concerned about his ability to protect the constitutional 
rights of plaintiffs who may enter his courtroom. The trial court 
judgment is a significant piece of information in order for us to

[[Page S16153]]

evaluate Mr. Fisher's qualifications to a lifetime appointment on the 
federal bench. In all due respect to my friends on the other side of 
the aisle, I do not think that the courts or the American people gain 
by rushing the nomination through.
  In addition to the pending civil rights judgment against him, I am 
concerned about other aspects of Mr. Fisher's record. He authored 
Pennsylvania's death penalty legislation as a State representative and 
has opposed placing a moratorium on the death penalty in Pennsylvania. 
He reiterated at his hearing and in response to my written questions 
that he does not believe that there is racial discrimination in the 
application of the death penalty in Pennsylvania or that innocent 
people are being sentenced in capital cases, despite repeated evidence 
to the contrary. I would like to take this opportunity to urge Mr. 
Fisher to take seriously the imposition of the death penalty and to do 
what he can to ensure that the death penalty is applied fairly.
  Mr. Fisher has also indicated his opposition to gay rights and has 
advocated against benefits for same-sex partners. Mr. Fisher, however, 
has assured the committee that he would follow Supreme Court precedent 
recognizing that gays and lesbians have a constitutional right to be 
free from government intrusion into their private lives. I am hopeful 
that Mr. Fisher will be a person of his word: that he will follow the 
law and not seek out opportunities to overturn precedent or decide 
cases in accord with his private beliefs rather than his obligations as 
a judge. I also sincerely hope that Mr. Fisher will treat all those who 
appear before him with respect, and will not abuse the power and trust 
of his position.
  The Senate has already confirmed two of President Bush's nominees to 
the Third Circuit, including one controversial circuit court nominee 
from Pennsylvania who had broken his promise to the committee about his 
membership in a discriminatory club. Yet, with Democratic support, the 
Senate has already confirmed 13 Federal district court nominees from 
Pennsylvania and 19 district court nominees in the Third Circuit.
  A look at the Federal judiciary in Pennsylvania indicates that 
President Bush's nominees have been treated fairly and far better than 
President Clinton's. This treatment is in sharp contrast to the way 
vacancies in Pennsylvania were kept vacant during Republican control of 
the Senate when President Clinton was in the White House.
  Despite the best efforts and diligence of the senior Senator from 
Pennsylvania, Senator Specter, to secure the confirmation of all of the 
judicial nominees from every part of his home state, there were 10 
nominees by President Clinton to Pennsylvania vacancies who never got a 
vote: Patrick Toole, John Bingler, Robert Freedberg, Lynette Norton, 
Legrome Davis, David Fineman, David Cercone, Harry Litman, Stephen 
Lieberman, and Robert Cindrich to the Third Circuit. Despite how well-
qualified these nominees were, they were never considered by the 
Senate, many waited more than a year for action.
  Just last month, the Senate voted to confirm another nominee from 
Pennsylvania whose record raised serious concerns the nomination of 
Thomas Hardiman to the U.S. District Court for the Western District of 
Pennsylvania. That nominee came to us with no judicial experience, a 
relatively small amount of litigation experience and very low peer-
review ratings by both the American Bar Association and the local 
Allegheny County Bar Association. Far too many of this President's 
judicial nominees seem to have similarly troubling records. In fact, 26 
of this President's judicial nominees have earned partial or majority 
``Not Qualified'' ratings from the ABA. Certainly, the citizens of 
Pennsylvania deserve a well-qualified judiciary to hear their important 
legal claims in federal court.
  Unfortunately, Mr. Fisher's record--particularly the outstanding 
Federal civil rights verdict against him--raises concerns, just as the 
record of far too many of President Bush's judicial nominees. Yet, I 
have great respect for the senior Senator from Pennsylvania and 
appreciate his efforts to help shepherd the White House's nomination 
through the Senate. I have also heard from a number of other supporters 
of Mr. Fisher whose opinions I value that they believe him qualified to 
serve as a judge of the Third Circuit. He does have significant 
experience as an attorney, formerly serving as an Assistant District 
Attorney, as an attorney in private practice for over 27 years, and in 
the Pennsylvania General Assembly for 22 years. We are, again, treating 
this President's judicial nominees far more fairly than Republicans 
treated President Clinton's judicial nominees.

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