[Congressional Record Volume 150, Number 89 (Thursday, June 24, 2004)]
[Senate]
[Pages S7403-S7405]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 NOMINATION OF WILLIAM DUANE BENTON TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE EIGHTH CIRCUIT

  The PRESIDING OFFICER. The clerk will state the next nomination.
  The legislative clerk read the nomination of William Duane Benton, of 
Missouri, to be United States Circuit Judge for the Eighth Circuit.
  Mr. BOND. Mr. President, it is a pleasure to speak in support of a 
distinguished Missourian, my good friend Duane Benton, to serve on the 
United States Court of Appeals for the Eighth Circuit. Judge Benton is 
a respected jurist and committed public servant. I am very pleased the 
Senate is taking action on Judge Benton for this important position. 
The Members voting on this nomination, after reviewing his many 
accomplishments, will find Judge Benton to have an impressive record of 
public service and an exemplary judicial record and conclude that he 
will make an excellent addition to the federal judiciary.
  Judge Benton currently serves on the Supreme Court of the State of 
Missouri. Judge Benton was appointed to the court in 1991, and also has 
served as its chief judge. Judge Benton has earned a reputation as a 
judge with a distinguished intellect who has a skill for uniting his 
colleagues on difficult questions. His work ethic, approach and 
reasoning are highly regarded by the lawyers of Missouri.
  In addition to his service on the judiciary, Judge Benton brings an 
impressive breadth of experience to this position. His experience 
coupled with his judicial record give him a command of a wide range of 
legal matters. Judge Benton is a Certified Public Accountant--the only 
CPA serving on any supreme court in the United States. Judge Benton was 
Missouri's chief tax expert, serving as director of the Missouri 
Department of Revenue. Judge Benton was member of the United States 
Navy, serving as a judge advocate for a number of years.
  Judge Benton earned his degree at Northwestern University; his law 
degree at Yale University School of Law, where he also served as editor 
of the Yale Law Journal; a Masters of Business Administration at 
Memphis State University and a Masters of Law at the University of 
Virginia.
  Judge Benton has also found time to be active in the communities in 
which he has lived. While his activities are too numerous to name, he 
has given his time from coaching baseball to serving on the Board of 
Regents for Central Missouri State University.
  He retired from the U.S. Naval Reserve as a captain, after 30 years 
of active and reserve duty. He is a Vietnam veteran, a member of the 
Veterans of Foreign Wars, the American Legion, the Navy League, the 
Vietnam Veterans of America and the Missouri Military Advisory 
Committee.
  The U.S. Court of Appeals is truly the second most important court in 
the land. Nearly every Federal case ends up before the court in some 
manner. Its decisions impact every aspect of society. To these 
positions, I believe it is imperative that the President nominate 
people of distinguished intellect and character with a breadth of legal

[[Page S7404]]

experience. This standard has been far surpassed with the nomination of 
Judge Benton. With his knowledge and experience, he will make an 
outstanding addition to the Federal judiciary.
  Mr. HATCH. Mr. President, I rise today to express my strong support 
for the confirmation of William Duane Benton, who has been nominated to 
the U.S. Court of Appeals for the Eighth Circuit.
  Judge William Benton is an ideal nominee and is well suited for the 
Federal bench. He is currently a judge on the Supreme Court of 
Missouri, where he has served for 13 years, including two years as 
chief justice of the court. He is highly respected by his peers, has 
broad bipartisan support, and received a unanimous ``Well Qualified'' 
rating from the American Bar Association. Both of Judge Benton's home 
State senators, Senators Bond and Talent, enthusiastically support his 
nomination to the Eighth Circuit.
  Before I go on, I want to note here that Judge Benton is the only 
certified public accountant serving on any State supreme court in the 
United States.
  I would also note Judge Benton's military career. From 1975 to 1979, 
he served with the U.S. Navy as a judge advocate. A Vietnam veteran, 
Judge Benton retired from the U.S. Naval Reserve at the rank of Captain 
following 30 years of active and reserve service.
  Judge Benton has an outstanding academic record and I want to list a 
few of his accomplishments: He graduated summa cum laude from 
Northwestern University, where he became a member of Phi Beta Kappa. He 
then attended Yale Law School, where he distinguished himself as both 
an editor and managing editor of the Yale Law Review. While on active 
duty in the Navy, he attended business school at night at the 
University of Memphis and received his master's in business 
administration--with highest honors. And in 1995, he received an L.L.M. 
from the University of Virginia.
  Judge Benton has been a dedicated public servant throughout most of 
his career, serving in all three branches of the Government at the 
State or Federal level. He was confirmed by the Missouri Senate for 
many of those positions: Director of Revenue for the Missouri 
Department of Revenue; the Chair of the Board of Trustees for the 
Missouri State Employees' Retirement, and Member of the Board of 
Regents for Central Missouri State University. Additionally, the 
governor of Missouri appointed Judge Benton to the Multistate Tax 
Commission prior to his service on the bench. The Missouri Senate also 
confirmed him for that position, and members from 32 other states 
elected him chair of the commission. Judge Benton also served as chief 
of staff to Missouri Congressman Wendell Bailey in the U.S. House of 
Representatives.
  In addition to his many years as a public servant, Judge Benton 
maintained a law practice. During the 1980s, he had a general civil 
practice representing clients such as statewide associations and 
groups, small businesses, and local governments. He also represented 
several Federal inmates on a pro bono basis.
  Judge Benton has the support of both home State senators. 
Furthermore, he has wide support from members of the Missouri bar, as 
well as community organizations such as the Jefferson City Branch of 
the N.A.A.C.P.
  Judge Benton has a solid reputation for possessing a high level of 
integrity, and for being personable and engaging. I'm sure that my 
colleagues will agree that Judge Benton brings unmatchable expertise, 
as well as experience to the Federal bench.
  Mr. President, I yield the floor.
  Mr. LEAHY. Mr. President, a little more than a month ago we were able 
to obtain a firm commitment from the White House that there would be no 
further judicial recess appointments for the remainder of this 
presidential term. That undertaking led immediately and directly to the 
Senate vitiating a cloture vote and proceeding to confirm a district 
court nominee from Florida. Since that time I have been urging the 
Republican leadership to schedule consideration and votes on the other 
two dozen nominees to be considered. They started slowly but last week 
we were able to confirm nine of the judicial nominees. Today we will 
act on several more.
  It is unfortunate that the Republican leadership did not schedule the 
debate that they know will be required before a vote on the Holmes 
nomination. There remains no Democratic hold on that nomination. The 
problem has been the failure of the Republican leadership to build that 
debate into the Senate schedule.
  I am working with the Democratic leader and all Senators to complete 
action on all the other judicial nominees subject to the understanding. 
In order to accommodate Senators, we will proceed with some of the 
nominees by voice vote.
  The facts are that Senate Democrats have been much more cooperative 
with this President than Republicans were when President Clinton was in 
the White House. Democrats in this Senate have shown great restraint 
and extensive cooperation in the confirmation of nearly 200 of this 
President's judicial nominations. We have reduced circuit court 
vacancies to the lowest level since the Republican Senate leadership 
irresponsibly doubled those vacancies in the years 1995 through 2001. 
We have already reduced overall Federal court vacancies to the lowest 
levels in 14 years, and after today we may hit a level of vacancies 
achieved only once in the last 20 years with less than 30.
  Today we consider William Duane Benton, the fifth of President Bush's 
nominees to a circuit court we will have confirmed this year. This 
should be contrasted with the number of circuit court nominees 
confirmed in the 1996 session, the last year of President Clinton's 
first term. That session not a single circuit court nominee was 
permitted by the Republican majority to proceed to confirmation, not 
one. That year only 17 judges were allowed to be confirmed and all were 
to district court vacancies.
  Judge Benton, who currently serves on the Supreme Court of Missouri, 
is an example of the sort of nominee that President Bush ought to send 
for the appellate courts. He has a reputation as a conservative, but 
fair-minded judge. As an attorney he had experience in a variety of 
areas of law, and on the State Supreme Court he has handled complex 
criminal and civil cases. He has written a number of excellent 
opinions, laying out the facts and the law with no hint of any personal 
bias. Judge Benton shows a willingness to listen to all litigants and 
to be fair.
  I was especially struck by his fairness in death penalty cases. Far 
too often judges, especially elected judges, yield to the pressure of 
those who would sacrifice important constitutional principles in 
capital cases. As I look at his record, I see that of the 21 published 
opinions Judge Benton has written in death penalty cases, he has 
affirmed 12 and reversed nine. I think it is telling that he is willing 
to see beyond what are always terrible facts in these cases to ensure 
that justice and important constitutional safeguards are preserved.
  I hope that my praise for his work in death penalty cases will not 
hurt Judge Benton's chances for confirmation. I remember not so long 
ago when another judge on the Supreme Court of Missouri, now-Chief 
Justice Ronnie White, was before the Senate as a nominee to a seat on 
the Federal bench. Sadly, Judge White's willingness to uphold the 
Constitution and ensure fair process in death penalty cases led to his 
being defeated by an unprecedented party-line vote of Republican 
Senators. His record was twisted and distorted for purposes of partisan 
politics.
  Judge White was twice nominated by President Clinton to fill a seat 
on the U.S. District Court. The Judiciary Committee held two hearings 
on his nomination. Judge White was introduced enthusiastically by 
Senator Bond, and after each of these hearings the committee voted 
favorably to report his nomination to the full Senate. Despite this 
bipartisan support, however, his nomination was delayed for months and 
then years. When the time finally came for a vote on the Senate floor, 
Judge White was ambushed, and he was rejected in a party-line vote 
during which Republicans who had supported his nomination previously 
reversed position to scuttle it before the Senate.
  The biggest distortions of Judge White's record were in death penalty

[[Page S7405]]

cases. His record on the whole compares favorably to Judge Benton's. 
According to testimony at Attorney General Ashcroft's confirmation 
hearing, Judge White voted to affirm the death penalty in 69 percent of 
the cases he heard. Looking just at the opinions Judge Benton has 
authored, we see him writing to affirm the death penalty 58 percent of 
the time. If we factor in cases in which he did not write the opinion 
but voted to affirm a capital sentence, I am sure the percentage is 
higher, and approaches Judge White's record.
  For opposing a capital sentence in dissent in a small minority of the 
cases he heard, Judge White was vilified. Then-Senator Ashcroft took to 
the Senate floor and pointed to Judge White's record in death penalty 
cases as evidence that he was ``pro-criminal,'' further describing 
Ronnie White as a judge, ``with a tremendous bent toward criminal 
activity or with a bent toward excusing or providing second chances or 
opportunities for those who have been accused in those situations.'' 
These were outrageous things to say about a man who had devoted his 
life to the law, who had served many years on the State's highest 
court, and who had voted to reverse a small number of death sentences 
in order to preserve the integrity of the Constitution. When Judge 
White came to testify at Attorney General Ashcroft's confirmation 
hearing, Senator Specter offered him an apology for the way in which he 
was treated.
  I mention all of this, as I said, because it provides such a stark 
contrast to the treatment that Judge Benton has gotten throughout his 
confirmation process. I doubt anyone will look at the nine cases in 
which he wrote to reverse a death penalty--50 percent more cases than 
those Judge White voted to reverse--and accuse him of being ``pro-
criminal''. I will be surprised if, because he has found reversible 
error in the imposition of nine different death sentences, each one 
involving terrible crimes and horrific facts, any Member of this Senate 
will accuse him of having a ``tremendous bent toward criminal 
activity.'' I will be shocked if, because he exercised his best 
judgment and followed the law as he understood it, he will be vilified 
and humiliated in a sneak attack in the manner that Judge Ronnie White 
was treated.
  Of course, none of that should happen to Judge Benton, just as none 
of that should have happened to Judge White. I hope that one day Judge 
White's name can come back before the Senate and that he can be treated 
with the integrity and respect he deserves, just as we treat Judge 
Benton. I will vote in favor of Judge Benton's confirmation.
  The PRESIDING OFFICER. The question is, Shall the Senate advise and 
consent to the nomination of William Duane Benton, of Missouri, to be 
United States Circuit Judge for the Eighth Circuit?
  The nomination was confirmed.

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