[Congressional Record Volume 150, Number 12 (Wednesday, February 4, 2004)]
[Senate]
[Pages S568-S571]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF MARK R. FILIP TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN 
                          DISTRICT OF ILLINOIS

  The PRESIDING OFFICER. The clerk will state the nomination.
  The legislative clerk read the nomination of the Mark R. Filip, of 
Illinois, to be U.S. District Judge for the Northern District of 
Illinois.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Illinois is recognized.
  Mr. FITZGERALD. Mr. President, I take just a few moments to introduce 
to my colleagues the nominee on whom we are going to be voting in a 
couple of minutes. I recommended Mark Filip to President Bush. 
President Bush nominated him. Senator Durbin concurred in my 
recommendation to President Bush. I thank Senator Durbin for his 
support in this effort. I also thank Chairman Hatch and Senator Leahy 
on the Judiciary Committee, and all members of the Judiciary Committee, 
for helping to move this nomination forward to the floor.
  I think one of the most difficult tasks most of us have in the Senate 
is finding outstanding nominees to the Federal judicial branch of 
Government. In many cases, at least from my perspective, the choice has 
been very difficult. Oftentimes, we will get 80 applicants for a single 
district court judgeship opening in Chicago and you have to pick just 
one person. That one person, obviously, is very happy and you have many 
others who are disappointed that they did not get chosen.
  In this case, I was elated to find a person of such outstanding 
credentials that I could wholeheartedly recommend him to the President. 
I think in the case of this nominee, Mark R. Filip, we are in fact 
lucky to have someone of his caliber who is willing to leave a very 
lucrative practice in the private sector. He is now a partner at 
Skadden Arps' Chicago office. He is willing to leave that very 
prestigious position to move into public service and become a district 
court judge in the Northern District of Illinois.
  Mark Filip lives in Winnetka, IL, with his wife Beth. They have four 
sons.

  Mark grew up in Chicago and attended the University of Illinois at 
Champaign. He graduated summa cum laude from the University of 
Illinois. While there, he received many academic fellowships, including 
the prestigious Phi Beta Kappa fellowship. After graduating from U of 
I, he won the highly sought after Marshall Scholarship to attend 
Oxford. While there, he received a B.A. and M.A. in jurisprudence and 
won first class honors at Oxford. Returning from his Marshall 
scholarship to the United States, he matriculated at the Harvard Law 
School. He did similarly well at Harvard. He became an editor of the 
Harvard Law Review.
  In Mark Filip's second year at Harvard, he won the Sears Prize, which 
is given annually to the two students of the second year class who 
achieved the highest grades. Ultimately, in the early 1990s, Mark Filip 
graduated magna cum laude from Harvard Law School.
  He began his professional career in Chicago, serving as an associate 
at Kirkland & Ellis, one of the best and oldest firms in Chicago. After 
a couple of years in the Kirkland & Ellis Chicago office, he moved to 
the U.S. Attorney's Office and became an assistant U.S. attorney in the 
Northern District of Illinois, where he gained a lot of experience in a 
wide variety of criminal cases that he prosecuted successfully, 
including racketeering, white-collar crime, public corruption, tax 
fraud cases; and he successfully defended the U.S. Attorney's Office on 
appeal in many of those cases.
  Mark Filip returned to the private sector. After leaving the U.S. 
Attorney's Office, he became an associate at Skadden Arps in 1999, and 
in 2001 he became a partner at Skadden Arps.
  In recent years, he has been an adjunct professor of law at 
Northwestern University and the University of Chicago Law School, both 
outstanding institutions.
  Now, again, I emphasize how delighted I am to be able to present to 
my colleagues in the Senate such a well-qualified nominee, Mark Filip, 
who is a very young man. He has four children, who range in age from 8 
months to 6 years. He is in his late thirties, and I expect that if he 
goes on the district court in Chicago at this early age, he may well 
have the opportunity to rise to the circuit court of appeals.
  I neglected to mention that between law school and his professional 
career, he had two very prized judicial clerkships. He served as a law 
clerk to Steven Williams on the DC Court of Appeals and then as a law 
clerk for Supreme Court Justice Scalia.
  I am confident, having researched and talked to all those he has 
worked with over the years, that there is no question he will make a 
superior district court judge.
  Mr. President, I yield the floor.
  Mr. LEAHY. Mr. President, today, we are considering the nomination of 
Mark filip to the U.S. District Court for the Northern District of 
Illinois. The vote today on Mr. Filip is the second vote on a judicial 
nominee this year, and demonstrates the Democrats'

[[Page S569]]

remarkable cooperation on judicial nominations despite years of 
intensified Republican partisanship and unilateralism.
  Over the past 2 weeks, I have shared with the Senate several 
disappointing developments regarding judicial nominations: The 
Pickering recess appointment, the renomination of Claude Allen, and the 
theft of Democratic offices' computer files by Republican staff. In 
spite of all those affronts, Senate Democrats cooperated to confirm a 
nominee last week and are cooperating to confirm another district court 
nominee today. We do so without the kinds of delays and obstruction 
that Republicans used with President Clinton's judicial nominees.
  Last week, I discussed the recess appointment of Judge Charles 
Pickering to the U.S. Court of Appeals for the Fifth Circuit, which was 
President Bush's most cynical and divisive appointment to date. That 
appointment is without the consent of the United States Senate and is a 
particular affront to the many individuals and membership organizations 
representing African-Americans in the Fifth Circuit who have strongly 
opposed this nomination. Never before had a judicial nomination 
rejected by the Judiciary Committee after a vote been resubmitted to 
the Senate, but this President took that unprecedented step last year. 
Never before has a judicial nomination debated at such length by the 
Senate, and to which the Senate has withheld its consent, been the 
subject of a presidential appointment to the Federal bench. The 
Pickering recess appointment is another dangerous step down the 
Republican's chosen path to erode judicial independence for the sake of 
partisanship and their ideological court-packing efforts.
  The second disappointing development I spoke about last week was the 
renomination of Claude Allen as a nominee to the fourth Circuit. Two 
weeks ago, the President sent the nomination of Claude Allen back to 
the Senate. From the time this nomination was originally made to the 
time it was returned to the President last year, the Maryland Senators 
have made their position crystal clear. This Fourth Circuit vacancy is 
a Maryland seat and ought to be filled by an experienced, qualified 
Marylander. Over the Senate recess, the White House had ample time to 
find such a nominee. This refusal to compromise is just another example 
of the White House engaging in partisan politics to the detriment of an 
independent judiciary
  Third, last week, I also mentioned with disappointment the ongoing 
fallout from the cyber theft of confidential memoranda from Democratic 
Senate staff. This invasion was perpetrated by Republican employees 
both on and off the committee. As revealed by the chairman, computer 
security was compromised and, simply put, members of the Republican 
staff took things that did not belong to them and passed them around 
and to people outside of the Senate. This is no small mistake. It is a 
serious breach of trust, morals, the standards that govern Senate 
conduct and possibly, criminal laws. We do not yet know the full extent 
of these violations. But we do need to repair the loss of trust brought 
on by this breach of confidentiality and privacy if we are ever to be 
able to resume our work in the spirit of cooperation and mutual respect 
that is so necessary to make progress.

  This is an administration that promised to unite the American people 
but that has chosen time and again to act with respect to judicial 
nominations in a way that divides us. This is an administration that 
squandered the goodwill and good faith that Democrats showed in the 
aftermath of September 11, 2001. This is an administration that refused 
to acknowledge the strides we made in filling 100 judicial vacancies 
under Democratic Senate leadership in 2001 and 2002 while overcoming 
anthrax attacks and in spite of Republican mistreatment of scores of 
qualified, moderate judicial nominees of President Clinton.
  Democratic cooperation with the President's slate of judicial 
nominees has been remarkable in these circumstances. With the overall 
cooperation of Senate Democrats, which partisan Republicans are loath 
to concede, this President has achieved record numbers of judicial 
confirmations. Despite the attacks of September 11 and their aftermath, 
as of today, the Senate will have confirmed 171 of President Bush' 
nominees to the Federal bench. This is more judges than were confirmed 
during President Reagan's entire first 4-year term. Thus, President 
Bush's 3-year totals rival those achieved by other Presidents in 4 
years. That is also true with respect to the nearly 4 years it took for 
President Clinton to achieve these results following the Republicans' 
taking majority control of the Senate in 1994.
  The 69 judges confirmed last year exceeds the number of judges 
confirmed during any of the 6 years from 1995 to 2000 when Republicans 
controlled the Senate during the Clinton Presidency, years in which 
there were far more vacant Federal judgeships than exist today. Among 
those 69 judges confirmed in 2003 were 13 circuit court judges. That 
exceeds the number of circuit judges confirmed during any of 1995, 
1996, 1997, 1999, and 2000, when a Democrat was President.
  The Senate has already confirmed 30 circuit court judges nominated by 
President Bush. This is a greater number than were confirmed at this 
point in the presidencies of his father, President Clinton, or the 
first term of President Reagan. Vacancies on the Federal judiciary have 
been reduced to the lowest point in two decades and are lower than 
Republicans allowed at any time during the Clinton Presidency. In 
addition, there are more Federal judges serving on the bench today than 
at any time in American history.
  This week, the chairman of the Senate Judiciary Committee will hold a 
third hearing for circuit court nominees. Traditionally, the number of 
nominees who have received hearings and who are confirmed in a 
Presidential election year has been lower than in other years. In 1996, 
only four circuit court nominees by President Clinton received a 
hearing from the Republican Senate majority all year, and it took until 
July 31 to have a hearing for the third circuit court nominee. By that 
standard, Chairman Hatch has now moved seven times more quickly than he 
did for President Clinton's nominees in 1996.

  In 2000, only five circuit court nominees by President Clinton 
received a hearing from the Republican Senate majority. Of course, two 
of those outstanding and well-qualified nominees in 2000 were never 
allowed to be considered by the committee or the Senate. By contrast, 
as of tomorrow we will have held hearings for three circuit court 
nominees. By the standard Republicans set in 1996 and 2000, we would be 
done for the entire year.
  I congratulate the Democratic Senators on the committee for showing a 
spirit of cooperation and restraint in the face of a White House and 
Republican majority that so often has refused to consult, compromise or 
conciliate. I regret that our efforts have not been fairly acknowledged 
by partisan Republicans and that this administration continues down the 
path of confrontation. While there have been controversial nominees 
whom we have opposed as we exercise our constitutional duty of advice 
and consent to lifetime appointments on the Federal bench, we have done 
so openly and on the merits.
  For the last 3 years I have urged the President to work with us. It 
is with deep sadness that I see that this administration still refuses 
to accept the Senate's shared responsibility under the Constitution and 
refuses to appreciate our level of cooperation and achievement.
  That we are proceeding to confirm Mark Filip today is another example 
of extraordinary Democractic cooperation to fill vacancies in the 
Federal judiciary, despite the Republicans' consistent and 
unprecedented attacks. Unfortunately, Mark Filip is another young, 
Federalist Society member whose record raises concerns, just as the 
record of far too many of President Bush's judicial nominees.
  First, Mr. Filip is only 37 years old. He has been out of law school 
less than 12 years and just a decade ago he was clerking across the 
street for Justice Scalia. Second, his record demonstrates a partisan, 
political background. Mr. Filip worked as a volunteer Republican 
election monitor in Broward County, Florida during the manual recount 
of ballots in the contentious 2000 election. Mr. Filip has also made 
several contributions to Republican candidates and political action 
committees. While in law school,

[[Page S570]]

he was vice president of the Harvard Law School Federalist Society and 
he authored an article entitled ``Why Learned Hand Would Never Consult 
Legislative History Today.'' In this article, Mr. Filip argues that 
legislative history should be rejected by judges because it reflects 
nothing more than the desires of congressional staff and lobbyists, and 
because it does not reflect the majority will of Congress. More 
important, Mr. Filip wrote that, when confronted with statutory 
language that would lead to an absurd result, a judge should apply his 
or her own reasoning rather than legislative history.
  The senior Senator from Illinois met with Mr. Filip to address his 
background and suitability to be a Federal judge.
   Senator Durbin is a thoughtful man and I respect his judgment. 
Senator Durbin's willingness to supply this nomination says alot. I am 
hopeful that Mr. Filip 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. Filip will treat 
all those who appear before him with respect, and will not abuse the 
power and trust of his position. Sometimes, we take a risk allowing a 
nominee to be confirmed. This is, frankly, one of those times.
   Unfortunately, the Senate has taken a risk and confirmed other 
nominees of this President who assured the committee that they would 
follow precedent and would not be results-oriented. In their brief time 
on the bench, they have already proven to be judicial activities eager 
to roll back individual rights and limit the authority of Congress to 
protect civil rights. A number of President Bush's 30 circuit court 
nominees already confirmed by the Senate have written significant 
opinions that show their bias in favor of powerful business interests 
over individual Americans.
   For example, Jeffrey Sutton was one of Bush's most controversial 
appellate court nominees to be confirmed. At the time of his 
nomination, his record raised serious concerns. He had aggressively 
pursued a national role as the leading advocate of States' rights and 
pushed extreme positions in order to limit the ability of Congress to 
act to prevent discrimination and protect civil rights. His answers to 
questions posed by Judiciary Committee members did not show that he 
would be able to put aside his years of passionate advocacy in favor of 
States' rights and against civil rights. After a lengthy floor debate, 
he was confirmed by a vote of 52-41, which was the fewest votes in 
favor of any judicial nominee in the last 20 years and more than enough 
negative votes to have sustained a filibuster.
   In less than 1 year on the bench, he has already issued a dissenting 
opinion essentially in favor of States' rights and that would have 
limited Congress' authority under the Commerce Clause. In this case, 
decided in December, the question was whether a core function of 
municipal government--the provision of firefighting services--impacts 
interstate commerce such that an individual can be indicted under a 
Federal antiarson statute for destroying a fire station. The majority 
Sixth Circuit panel held that the fire station was used in an activity 
affecting interstate commerce, relying on the express language of the 
statute.
   Judge Sutton's dissent is a remarkable opinion whose beginning 
evidences that he has turned his passionate advocacy into judicial 
activism. His opinion begins, ``Some say the world will end in fire, 
Some say in ice.'' Judge Sutton concludes that the Federal arson law 
only applies to buildings with an ``active employment for commercial 
purposes,'' thereby seeking to narrow the law significantly. His 
opinion forcefully states that to ``conclude otherwise is to embrace 
the view that even the most attenuated connections to commerce will 
suffice in prosecuting individuals under this statute.'' In Judge 
Sutton's view, arson is a local crime and the ``National Legislature'' 
had not clearly conveyed its purpose to regulate an area traditionally 
regulated by the States.
  Ironically, his dissent cautions that ``Federal courts should not 
casually read a statute in a way that alters the Federal-State 
balance.'' However, he himself ignores the plain language of the statue 
and legislative history in his attempts to do just that--to alter the 
balance in a way that favors his own personal and ideological view of 
States' rights.
  John Roberts is a second controversial nominee who, in his few months 
on the bench, has already displayed a preference for pursuing political 
and ideological goals above following precedent. Judge Roberts recently 
issued a troubling dissent from a decision by the full D.C. Circuit 
that would have indulged another request by the Bush administration to 
keep secret the records of Vice President Cheney's energy task force.
  The case was part of a continuing effort on behalf of the Vice 
President to avoid compliance with numerous court orders requiring him 
to provide records of his meetings with the National Energy Policy 
Development Group. Two nonprofit organizations brought litigation 
claiming that the Vice President's task force had violated Federal law 
by not making its records public. In order to maintain the secrecy of 
these records, the Vice President had filed an emergency petition for a 
remedy that the majority noted ``is a drastic one, to be invoked only 
in extraordinary situations.'' The majority in the case stated that, 
were they to accept the Vice President's arguments, they would in 
effect ``have transformed executive privilege from a doctrine designed 
to protect Presidential communications into virtual immunity from 
suit'' and noted that ``the President is not `above the law,' he is 
subject to judicial process.''
  The full D.C. Court of Appeals denied Vice President Cheney's 
petition for rehearing en banc. Judge Roberts dissented. He would have 
indulged the Vice President's desperate attempts to avoid compliance 
with court orders by granting a motion for rehearing, despite the fact 
that the D.C. Circuit's five judge majority was the fourth panel of 
judges to hold that these records must be made available.
  A third example of a recently confirmed Bush nominee who has 
continued to pursue his ideological and political agenda on the bench--
as many of us feared at the time of his nonimation--is Judge Dennis 
Shedd. Judge Shedd wrote the opinion in a ruling so hostile to 
organized labor that one of the most conservative judges on that court 
harshly stated that Shedd's opinion ``overstepped [the] boundaries of a 
reviewing court.''
  In this case, the National Labor Relations Board and an 
administrative law judge found that an employer had unlawfully 
solicited nine of its employees to sign antiunion statements and had 
unlawfully withdrawn recognition of the union. Judge Shedd ignored the 
applicable standard of review and asserted his own view of the facts to 
conclude that the NLRB had erred in its determination. Approaching the 
case from a position hostile to organized labor, Judge Shedd 
``reconstructed'' the facts of the case, and allowed an employer, who 
had previously been found to have used illegal tactics in order to 
decertify a union, to escape any responsibility. Judge Wilkinson's 
strong dissent highlighted the expertise of the NLRB in examining an 
employer's conduct and that the reviewing court's role was limited to 
determining whether the NLRB had taken a permissible view of the 
evidence.

  In other cases, as many of us had feared, President Bush's circuit 
court nominees are already handing down decisions to roll back 
individual rights, civil rights and Congress' authority. Among these 
are:
  A majority opinion by Judge Gibbons, on the Sixth Circuit, which 
fails to provide accommodation to a person with multiple sclerosis 
under the Americans with Disabilities Act;
  A dissent by Judge Shedd in a bankruptcy case, which would have led 
to foreclosure on a family farm--a decision which the majority said 
``misses the mark''; and
  A dissent by Judge Rogers in a Title VII case involving illegal 
retaliation against an African-American employee which would have made 
it difficult for any employee to present their retaliation claims to a 
jury.
  The President has claimed time and again that he seeks only to fill 
the bench with judges who will follow the rule of law. He claims that 
he ``has no litmus test'' for determining who will

[[Page S571]]

and will not be appointed--that he makes his decisions based on the 
qualifications of the candidates. Despite these statements, the 
President's nominees seem to have certain striking similarities. They 
seem to favor powerful interests over individuals. They favor States' 
rights over civil rights. And many of them are all loyal Federalist 
Society members and committed to the political agenda of the most 
conservative wing of the Republican Party. The Senate's constitutional 
duty to provide advice and consent on judicial nominations is vital in 
these circumstances--Federal judges must be devoted first and foremost, 
not to a political platform or certain parties, but to the rule of law, 
the Constitution, and the basic principles of fairness and justice.
  If we are to allow the President to pack the courts with political 
party loyalists and radical right-wing ideologues, we will cease to 
have a Government of laws and will end up with a Government controlled 
by the views of a few. We would risk having a judiciary that functions 
as a rubber stamp for any right wing argument, policy, or political 
goal sought to be achieved via the courts.
  Yet, despite the troubling records of so many of Bush's confirmed 
judges and the other disappointing developments this year, Senate 
Democrats have confirmed vast members of nominees who have come to the 
Senate floor and are today again making sure that the process of 
judicial appointments moves forward. Democrats have not obstructed the 
confirmation process for judicial and executive branch nominations as 
Republicans did when President Clinton was in office. Today, we proceed 
to confirm a judicial nominee in spite of the President's recent 
actions, those of Senate Republicans, and serious reservations about 
this nominee.
  Mr. Filip's nomination was reported favorably to the Senate last 
October. Had the Republican leadership wanted to proceed on it, this 
nomination could easily have been confirmed in October, November, or 
December last year before the Senate adjourned. Instead, partisans 
chose to devote 40 hours to a talkathon on the President's most 
controversial and divisive nominees rather than proceed to vote on 
those judicial nominees with the support of the Senate. The delay in 
considering this nomination is the responsibility of the Republican 
leadership.
  I congratulate Mark Filip and his family on his confirmation.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Mark R. Filip, of Illinois, to be a U.S. 
District Court Judge for the Northern District of Illinois?
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from South Carolina (Mr. Hollings), the Senator 
from Massachusetts (Mr. Kerry), 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 ``yea.''
  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. 8 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
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     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

     Edwards
     Hollings
     Kerry
     Lieberman
   The nomination was confirmed.
  The PRESIDING OFFICER. The President will be notified of the Senate's 
action.
  The Senator from Nevada.
  Mr. REID. Mr. President, very briefly, we have just approved the 
171st judge during the Bush administration. There have been 171 judges 
approved. To my knowledge, there have been four he submitted who have 
not been approved, other than those who are going through the committee 
process. So the score is 171 to 4. A good average, I think.

                          ____________________