[Congressional Record Volume 150, Number 70 (Tuesday, May 18, 2004)]
[Senate]
[Pages S5574-S5575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            EXECUTIVE SESSION

                                 ______
                                 

    NOMINATION OF MARCIA G. COOKE TO BE UNITED STATES DISTRICT JUDGE

   Mr. FRIST. I ask unanimous consent that the cloture vote be vitiated 
and the Senate proceed to executive session for the consideration of 
Calendar No. 606, the nomination of Marcia Cooke to be a United States 
district judge for the Southern District of Florida.
  I further ask that the Senate proceed to vote on the nomination and 
that following the vote the President be immediately notified of the 
Senate's action and the Senate then resume legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the nomination.
  The assistant legislative clerk read the nomination of Marcia G. 
Cooke, to be United States District Judge for the Southern District of 
Florida.
  Mr. HATCH. Mr. President, I want my remarks to be thought of as 
constructive remarks rather than not constructive.
  Yet another week has gone by without this body confirming a judicial 
nominee. That makes more than 9 weeks since the last judicial 
confirmation. Only four judges have been confirmed this year, and that 
is hardly a record of progress.
  It is not enough for the minority to point out how many nominees were 
confirmed under their watch 2 years ago. We must also look at what is 
going on now, and this is a dismal record even for a Presidential 
election year.
  Over the last six Presidential election years, both Republicans and 
Democrats won the White House and both Republicans and Democrats 
controlled the Senate. On average, the Senate has confirmed 45 judicial 
nominees in the six most recent Presidential election years, and 
continued confirmations until October in four of the last six 
Presidential election years. At this same point in the last six 
Presidential election years, the Senate confirmed, on average, 21 
judicial nominees by now. I repeat, so far this year we have confirmed 
just four judges.
  This is not for any lack of activity on the part of the Judiciary 
Committee. The committee is actually one-third ahead of the average for 
recent Presidential election years in voting out judicial nominees to 
the full Senate. We have held 10 nomination hearings this year alone.
  Yet 32 nominees languish on the Senate calendar in a minority-imposed 
limbo despite the fact that we all know that if we took the simple up-
or-down votes on each and every one of these nominees that the 
Constitution contemplates, it is probable that virtually all 32 of 
these nominees would be confirmed.
  Fully 22 of the 32 nominees on the calendar were reported out of the 
Judiciary Committee without even one negative vote in the Judiciary 
Committee. And that is saying something because our committee is known 
to be the home of some of the most vigorous debates and debaters in the 
Senate. As anyone who has ever attended one of our markups can verify, 
no one on the Judiciary Committee is shy about expressing an opinion on 
most any subject or reticent to reflect or register a dissenting point 
of view.
  When a nominee goes through the Judiciary Committee without 
opposition, the nominee is truly a consensus candidate of high 
qualifications and deserves prompt consideration by the full Senate.
  For me and many others, a nominee's American Bar Association rating 
is a factor to consider. I do not think it is the be all and end all of 
the confirmation process, but it is something that can be helpful in 
evaluating a nominee's qualifications. During the Clinton 
administration, I can recall that some of my friends on the other side 
of the aisle took the position that the ABA rating was the ``gold 
standard'' with respect to judicial confirmations.
  Well, where are they now when 24 of the 32 nominees on the Executive 
Calendar have received the highest rating, ``well qualified,'' by the 
ABA? And what is more, 14 of the 24 nominees rated ``well qualified'' 
by the ABA received this ``well qualified'' rating by a unanimous vote 
of the ABA evaluators.
  The Constitution requires, and this body has traditionally provided, 
a vote for every judicial nominee reaching the full Senate. Every 
Clinton nominee that reached the Senate floor got a vote, and President 
Clinton nearly broke the all-time confirmation record set by President 
Reagan who set this record with 6 years of a Republican-controlled 
Senate, while President Clinton only had 2 years of a Democratic-
controlled Senate to help him. President Bush's nominees should receive 
the same treatment and get a vote on the floor.
  I remain hopeful that this body will not abandon past practice and 
extend the recent spate of unprecedented filibusters of appellate court 
nominees to district court nominees. That is why I have continued to 
encourage the leadership on both sides of the aisle and the White House 
to arrive at an acceptable compromise on the 32 judges on the Senate 
Calendar.
  I fully support the nomination of Ms. Marcia Cooke to serve as a 
District Judge on the Southern District of Florida.
  Before the Senate votes on the Cooke nomination, it is only 
appropriate that we spend a few minutes considering her qualifications. 
Currently serving as Miami Dade County's Assistant County Attorney, Ms. 
Cooke is one of those nominees who received the ABA's highest ``well-
qualified'' rating. Her experience includes service as both a public 
defender and prosecutor, a plaintiff's attorney and defense counsel, a 
private practitioner and public servant, and both an advocate and a 
jurist. I might add that Ms. Cooke is a graduate of Georgetown 
University and is an active leader in that fine school's alumni 
association.
  Marcia Cooke served for 8 years as a Federal magistrate in Michigan. 
She has been an Assistant U.S. Attorney in Michigan and Florida. She 
has served as Florida's Chief Inspector General. Both of Florida's 
Democrat Senators support her. The position to which she has been 
nominated has been vacant so long it is now considered a judicial 
emergency. If confirmed she would be the first African-American woman 
to serve as a Federal judge in the Southern District of Florida.
  It is no wonder why the Judiciary Committee approved her without a 
single dissenting vote. Today, the full Senate should act to support 
her.
  I am pleased that a more reasonable and responsible atmosphere has 
returned to the Senate and this cloture vote has been vitiated as part 
of a larger agreement on judges.
  We should all recognize that a cloture vote on a highly qualified, 
highly respected district court nominee such as Marcia Cooke is not a 
positive sign. It indicates that our friends across the aisle may be 
prepared to extend their policy of delay and filibusters to even 
district court nominees.
  Many believe that the true target of these unprecedented filibusters 
of judicial nominees is to set the stage for the next Supreme Court 
vacancies. What

[[Page S5575]]

they are trying to do is to, in effect, rewrite article II, section II, 
clause II, of the Constitution to require a 60-vote supermajority for 
Supreme Court vacancies. In the process, these misguided efforts have 
greatly damaged the confirmation process and diminished our efforts to 
work together on all judicial nominees.
  Despite many challenges this year on the Judiciary Committee, Senator 
Leahy and his Democratic colleagues have worked with us to approve many 
highly qualified consensus candidates.
  I hope that the progress that we have made in the committee will not 
be derailed on the Senate floor.
  Mr. President, I wish to express my appreciation to my colleagues for 
moving forward on this nomination, and other nominations to follow over 
the next few weeks.
  I know these have been difficult negotiations. So I express my thanks 
to the President, to his chief of staff, Andrew Card, to Senator Frist 
and to Senator Daschle for bringing this agreement to the Senate. I 
also thank Senator Leahy and other members of the Judiciary Committee 
for their cooperation. I look forward to continuing the work of the 
Committee, and this agreement will help us in that effort.
  Mr. President, I ask unanimous consent that an editorial published 
today by the Miami Herald in support of the confirmation of Marcia 
Cooke be printed in the Record.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From the Miami Herald, May 18, 2004]

 Nomination Faces Key Vote; If Confirmed, Marcia Cooke Would Become the 
 First Black Woman Appointed to a Federal Judgeship in Florida.; U.S. 
                                 Courts

            (By Gary Fineout, Frank Davies and Tere Figueras)

        Republicans trying to nudge along judicial nominations 
     made by President Bush will force Democrats today to take a 
     potentially embarrassing vote on stalling the appointment of 
     the first black woman to a Federal judgeship in Florida.
        Last week, Senate Republicans set in motion today's 
     scheduled vote to close off debate on the appointment of 
     Marcia Cooke, an assistant Miami-Dade County Attorney and the 
     former chief inspector general for Gov. Jeb Bush.
        A successful vote for the Republicans would force a final 
     vote on Cooke's nomination, hastening her ascent to bench of 
     the Southern District of Florida, which stretches from Fort 
     Pierce to Key West.
        Cooke is caught in a Democratic fight to gain more control 
     over judicial nominations by blocking confirmation votes on 
     even noncontroversial nominees like Cooke.
        In Tallahassee, the younger brother of the president 
     called on Democrats to support Cooke's nomination.
        ``This is ridiculous,'' said Gov. Jeb Bush, who spoke to 
     reporters following a ceremony marking the 50th anniversary 
     of the landmark Brown vs. Board of Education Supreme Court 
     decision. ``Marcia, who served here in Tallahassee, did a 
     great job as inspector general, is well qualified to be a 
     Federal judge. If the Democrats hold this up for political 
     purposes, it stinks.''
        The nomination of Cooke has become a small part of a 
     raging battle over judgeships in the Senate. Cooke is backed 
     by Sens. Bob Graham and Bill Nelson, both Democrats.


                          registered democrat

        And Cooke, a Bay Harbor Island resident, is herself a 
     registered Democrat.
        But Senate Democrats, angered by Bush administration 
     ``recess appointments'' of other judges, have tried to block 
     confirmations until an agreement can be reached with the GOP 
     on how to handle controversial nominees.
        Leaders of both parties were still negotiating Monday, 
     trying to reach some agreement on the process of 
     appointments. If Cooke is confirmed, she would fill a vacancy 
     left by the death of pioneering jurist U.S. District Judge 
     Wilkie D. Ferguson Jr., the first black man appointed to the 
     Miami-Dade Circuit bench and the Third District Court of 
     Appeal.
        Cooke, 49 and a native of South Carolina, was unanimously 
     approved by the Senate Judiciary Committee.
        A spokesman for Graham said Monday the senator was hopeful 
     that the nomination would be ultimately approved. ``Sen. 
     Graham has been very pleased to support Marcia Cooke and 
     considers her an outstanding nominee,'' said Paul Anderson 
     from his Washington office. ``He hopes some agreement can be 
     reached to avoid partisan gamesmanship on the floor 
     tomorrow.''
        It takes 60 votes for the motion to close debate to 
     succeed. There are 51 Republicans in the U.S. Senate, meaning 
     the nine Democrats would have to support the motion in order 
     for it to pass.
        Anderson predicted that when Cooke's name went before the 
     full Senate that she would be ``overwhelmingly'' approved.
        ``There should be no need for a procedural vote,'' said 
     Anderson. ``We hope the opportunity will present itself soon 
     for an up or down vote. When that vote comes, she should pass 
     overwhelmingly.''


                           tapped by gov. bush

        Cooke earned a degree from Georgetown University in 
     Washington D.C. and a law degree from Wayne State University 
     in Michigan. She worked for legal aid and neighborhood legal 
     services in Michigan before earning a spot as a Federal 
     magistrate judge in the Eastern District of Michigan. She 
     worked seven years for the U.S. Attorney's Office in Miami 
     before Gov. Bush tapped her as his chief inspector general in 
     1999.
        She has been an assistant county attorney for Miami-Dade 
     County since 2002, and has also served as an adjunct 
     professor at the University of Miami law school.
        ``She will be an excellent addition to that Federal 
     bench,'' said former U.S. Attorney Roberto Martinez. ``That 
     she would be the first African American female Federal judge 
     in the state is important. but her qualities and attributes 
     go beyond her ethnic background.''
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Marcia G. Cooke, of Florida, to be United 
States District Judge for the Southern District of Florida?
  Mr. FRIST. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Kentucky (Mr. 
Bunning) is necessarily absent.
  I further announce that if present and voting the Senator from 
Kentucky (Mr. Bunning) would vote ``yea.''
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye), the 
Senator from Massachusetts (Mr. Kerry), and the Senator from New Jersey 
(Mr. Lautenberg) are necessarily absent.
  The result was announced--yeas 96, nays 0, as follows:

                       [Rollcall Vote No. 97 Ex.]

                                YEAS--96

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     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

     Bunning
     Inouye
     Kerry
     Lautenberg
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be immediately notified of 
the Senate's action.

                          ____________________