[Congressional Record Volume 152, Number 72 (Thursday, June 8, 2006)]
[Senate]
[Pages S5640-S5646]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                              The Internet

  Mr. WYDEN. Mr. President, tomorrow in the other body, the House of 
Representatives, they will begin debating one of the most important 
communications issues facing our country--the future of the Internet.
  Since the other body will begin that discussion shortly and we have 
had debate beginning in the Senate Commerce Committee, chaired by 
Senator Stevens who worked so cooperatively with Senator Inouye, I wish 
to take a few minutes and talk about why I think this issue is so 
important and what the stakes are for our country.
  We all understand what has been so exciting about the Internet. The 
Internet has been a tremendously democratizing force, ensuring that in 
every nook and cranny of America, opportunities are there for Americans 
to learn, to tap the free enterprise system and to secure health care 
to name a few. This is an extraordinary array of opportunities.
  Today on the Internet, after you have paid your access charge to use 
the Net, you go where you want, when you want, how you want, free of 
discrimination because you have paid that one original access charge.
  Unfortunately, there are huge communications lobbies, consisting 
particularly of some of the major phone companies and some of the major 
cable companies, that want to change the way the Internet works. They 
would like to make consumers and businesses in our country pay tomorrow 
for what is free today.
  Today, when small businesses or consumers pay their Internet access 
charge, they can go wherever they want, whenever they want, however 
they want, without racking up extra charges and without facing 
discrimination. Unfortunately, these big communications lobbies would 
like to change that. For example, we see reports in distinguished 
business publications, such as the Wall Street Journal. They talk there 
about communications plans that are ``pay to play.'' If you were going 
to go to a variety of Web sites, under the approach they are proposing 
in the Wall Street Journal, the Web sites or the consumer would have to 
pay every time they went to one of these Web sites, in order to get 
good quality service.
  I don't think that is right. I think that is discrimination. I think 
it is discriminating against consumers, I think it is discriminating 
against small businesses. I think it will do extraordinary damage to 
the inherent beauty of the Internet, which has been all about a fair 
shake for every American, for every consumer.
  In an effort to spin this discrimination by the big cable companies 
and big phone companies against the consumers, the big lobbies are 
engaged in a huge advertising blitz. By my back-of-the-envelope 
calculations, these big lobbies are spending hundreds of millions of 
dollars on advertisements to convince the American people that 
discrimination and these extra charges they would face on the Internet 
are actually good for consumers and businesses.
  If it is so good for the consumer, why are these lobbies spending 
millions of dollars on these advertisements to tell the American people 
about it? If discrimination was so good, wouldn't consumers have been 
interested in paying higher prices a long time ago?
  It is hard to open the pages of a newspaper or turn on the television 
without seeing an advertisement urging people to stop Congress from 
``regulating the Internet.'' One trade association has even placed ads 
in the airports around Washington, DC, hoping Senators and 
Representatives traveling back to their States will see them. I can't 
imagine the executives of these large corporations would commit such 
large sums to advertising if they didn't think these kinds of 
advertisements would pay off handsomely in profits.
  Groups, such as Hands Off the Internet, a front group for some of the 
big communications lobbies, have offered some eye-popping ads. Look at 
this recent ad, for example, in which they display a copy of my 
legislation, the Internet Nondiscrimination Act. The only thing 
accurate about this ad is the top page of my bill. It has my name on 
it. It clearly says the ``Internet Nondiscrimination Act,'' but just 
about everything else is dead wrong. What they have done is falsely add 
what looks like hundreds, if not thousands, of pages to my bill. This 
is how they demonstrate what my legislation is all about. Here is the 
reality, Mr. President. Here is what they say I propose. However, this 
is just not accurate. Here is what my legislation looks like, what the 
big communications lobbies ought to describe as the real world; a piece 
of legislation that is 15 pages long.
  The bill I have introduced, this 15-page bill, doesn't look like 
anything along the lines of what the big communications lobbies are 
spending such vast sums on saying it looks like.
  There is an even more disturbing misrepresentation in this ad. It 
says, stamped up at the top, ``regulation.'' My legislation isn't about 
regulation. All I want is to leave the Internet alone. I don't want it 
to be subject to discriminatory changes, changes that would hit the 
American consumer in the pocket.
  I think any fairminded American who looks at my record will see that 
I have never sought to regulate the Internet. On the contrary, when I 
came to the Senate, I was a leader in the effort to keep the Internet 
free of discriminatory taxes. I fought to keep the Internet free of 
regulation. Now I am trying to keep control of the Internet in the 
hands of the American people and not force Americans in this country to 
pay tomorrow for what is free today.
  If you looked at these advertisements, Mr. President, you would think 
that neutrality is some newfangled idea that threatens the Internet. 
Net neutrality is what we have today, and the Internet has thrived 
precisely because it is neutral. It has thrived because consumers, and 
not some huge phone company or some huge cable company, get to choose 
what they want to see and how quickly they get to see it.

  I want to make it clear that those of us who are fighting to keep the 
Net neutral, which means that when you go to your browser, you go where 
you want, when you want, how you want, after you pay that initial 
access charge, are not interested in regulating anything. The people 
who want to make the changes, the big telecom and cable lobbies, are 
the ones who want to meddle with the Internet. They want to put their 
hands on the Internet so they can heap all these extra charges on the 
American people.
  Right now there is a small business, a craft maker, in Tigard, OR, 
who has a Web site where she sells her products all over the world. If 
these big lobbies have their way, she will have to pay a new hefty fee 
so customers can continue to have the same access to her Web site. That 
is not right. The consumer, after they pay that initial access charge, 
ought to be able to go where they want, when they want, how they want 
to get there. To make them pay tomorrow for what they get for free 
today is wrong.
  Colleagues are waiting to speak. I had anticipated spending a bit 
more time on this, but I think this ad says it all. We ought to keep 
the Internet free

[[Page S5643]]

of discrimination. We ought to protect consumers against multiple and 
discriminatory access charges. The next time somebody sees one of these 
ads, ads that seem to have millions of dollars of lobby money backing 
them up, they ought to know that this which purports to represent my 
legislation is false. What is in this ad suggests scores and scores of 
pages. The reality is my bill to keep the Internet free of 
discrimination and protect the consumer is 15 pages long.
  This argument at the top of the ad that there will be a host of Net-
neutrality regulations is similarly false. It is not about regulating 
anything on the Internet. I want to keep the Internet the way it is--an 
open, vibrant system, accessible to all.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). Who yields time?
  The Senator from Michigan.
  Ms. STABENOW. Mr. President, I rise today to speak to the nominations 
before us. I appreciate my distinguished colleague and friend from 
Oregon relinquishing the floor. He is very passionate and such a 
wonderful leader on so many topics. I appreciate his good work.
  I rise today to support the nominations of Judge Sean Cox and Judge 
Thomas Ludington to the U.S. District Court for the Eastern District of 
Michigan. Both nominees will bring distinguished legal careers and 
judicial experience to the Federal bench.
  Judge Sean Cox has served as a Circuit Court Judge for the Third 
Circuit of Michigan since 1996. He is a graduate of the Detroit College 
of Law at the University of Michigan and has over 12 years of private 
practice experience.
  Judge Thomas Ludington has served on the 42nd Circuit Court for 
Midland County since 1995. He has served as chief judge of this court 
for the past 6 years.
  Judge Ludington is a graduate of the University of San Diego School 
of Law and Albion College. After graduating from law school, Judge 
Ludington worked at Currie and Kendall law firm for 14 years. He also 
served as president of the firm before he left to join the Michigan 
circuit bench.
  I thank Senator Specter and Senator Leahy for working with me and 
Senator Levin to bring these two truly qualified nominees to the floor 
of the Senate. I look forward to continuing to work with them on issues 
related to the Michigan District Court and the Sixth Circuit Court of 
Appeals. I urge my colleagues to join with us in strongly supporting 
the nominations and confirming Judge Cox and Judge Ludington.
  Mr. President, I ask unanimous consent that the votes on the 
confirmation of judges begin at 2 p.m. today; provided further, that 
all the votes in the sequence after the first be limited to 10 minutes 
each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The hour of 2 p.m. having arrived, the 
question is, Will the Senate advise and consent to the nomination of 
Noel Lawrence Hillman, of New Jersey, to be United States District 
Judge for the District of New Jersey?
  Ms. STABENOW. Mr. President, I ask unanimous consent that it be in 
order to ask for the yeas and nays on all four of the nominees.
  The PRESIDING OFFICER. Is there objection?
  Ms. STABENOW. I ask for the yeas and nays, Mr. President.
  The PRESIDING OFFICER. Is there objection?
  Mr. SPECTER. Mr. President, I wish to speak briefly--for less than 2 
minutes--on the four nominees. They have been cleared by the Judiciary 
Committee, and I ask unanimous consent that their resumes be printed in 
the Record. They are all well qualified, and I urge my colleagues to 
confirm them.

                            Noel L. Hillman


      Nominee, U.S. District Court for the District of New Jersey

       Birth: 1956; Red Bank, New Jersey.
       Legal Residence: Virginia.
       Education: 1978-1981; Monmouth College, B.A. degree. 1981-
     1985; Seton Hall University School of Law, J.D. degree. 1985-
     1998; New York University School of Law, L.L.M. degree.
       Bar Admittance: 1986; New Jersey. 1990; New York.
       Experience: 1992-present; U.S. Department of Justice. 2003-
     2006; Public Integrity Section, Senior Counsel to the 
     Assistant Attorney General; Chief. 2002-2003; Acting Chief. 
     2001-2002; Principal Deputy Chief. 2000-2001; Criminal 
     Division, United States Attorney's Office, District of New 
     Jersey Deputy Chief. 1999-2000; Campaign Finance Task Force 
     Trial Attorney. 1992-2001; United States Attorney's Office, 
     District of New Jersey, Assistant U.S. Attorney. 1988-1992; 
     Lord Day & Lord Associate. 1986-1988; U.S. District Judge 
     Maryanne Trump Barry, Law Clerk. 1986; Hillman & Sullivan, 
     Associate.

                           Peter G. Sheridan

       Birth: April 21, 1950; Cambridge, Massachusetts.
       Legal Residence: New Jersey.
       Education: 1968-1972; St. Peter's College B.S. degree. 
     1974-1977; Seton Hall University School of Law, J.D. degree.
       Bar Admittance: 1977; New Jersey. 1980; New York.
       Experience: 1977-1978; Law Clerk to the Honorable James J. 
     Petrella, Superior Court of New Jersey, County of Bergen. 
     1978-1981; Port Authority of New York/New Jersey, Office of 
     New Jersey, Solicitor Attorney. 1981-1984; McCarthy and 
     Schatzman, Associate. 1984-1987; Atlantic City Casino 
     Association, Vice President and General Counsel. 1987-1990; 
     Office of Governor Thomas Kean, Director of Authorities Unit. 
     1990-1992; Cohen, Shapiro, Polisher, Shiekman, & Cohen, Of 
     Counsel. 1992-1993; Cullen and Dykman. 1994-1995; Partner. 
     1993-1994; N.J. Republican State Committee, Executive 
     Director. 1995-present; Graham, Curtin & Sheridan, 
     Shareholder/Director.

                          Thomas L. Ludington

       Birth: December 28, 1953; Midland, Michigan.
       Legal Residence: Michigan.
       Education: 1972-1976; Albion College, B.A. degree, cum 
     laude. 1977-1979; University of San Diego School of Law, J.D. 
     degree.
       Bar Admittance: 1980; Michigan.
       Experience: 1980-1994; Currie and Kendall, P.C., Associate/
     Partner. 1994-Present; 42nd Circuit Court, State of Michigan, 
     Judge (Chief Judge since 1999).

                              Sean F. Cox


          District Court for the Eastern District of Michigan

       Birth: September 24, 1957; Detroit, Michigan.
       Legal Residence: Michigan.
       Education: 1975-1979; University of Michigan, B.G.S. 
     degree, 1980-1983; Detroit College of Law, J.D. degree.
       Bar Admittance: 1983; Michigan.
       Experience: 1983; James Flynn, P.C., Law clerk. 1983-1984; 
     Self-employed. 1984-1989; Kitch, Saurbier, Drutchas, Wagner & 
     Kenney, Associate. 1989-1990; Bloom & Kavanaugh, Associate. 
     1990-1996; Cummings, McClorey, Davis & Acho, P.C., Partner. 
     1996-present; Third Judicial Circuit Court, State of 
     Michigan, Circuit Judge.
  Mr. SPECTER. We are operating under some time pressures because there 
are Senators who have other commitments. We wanted to call the vote at 
2 o'clock. It is 2:01 now. I believe the unanimous consent request has 
been made that the votes start immediately and that the subsequent 
votes be 10 minutes each.
  The PRESIDING OFFICER. That is correct.
  Mr. SPECTER. Have the yeas and nays been ordered on all of the 
nominations?
  The PRESIDING OFFICER. There is a pending unanimous consent request 
for the yeas and nays on all four nominees. Is there objection to that 
request? Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, 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 Noel Lawrence Hillman, of New Jersey, to be United States District 
Judge for the District of New Jersey? On this question, the yeas and 
nays have been ordered. The clerk will call the roll.
  The assistant journal clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) and the Senator from New York (Mr. Schumer) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 166 Ex.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan

[[Page S5644]]


     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Salazar
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Rockefeller
     Schumer
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Peter G. Sheridan, of New Jersey, to be 
United States District Judge for the District of New Jersey? On this 
question, the yeas and nays have been ordered. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) and the Senator from New York (Mr. Schumer) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 167 Ex.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Salazar
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Rockefeller
     Schumer
       
  The nomination was confirmed.
  Mr. LEAHY. Mr. President, I ask unanimous consent the previously 
ordered rollcalls on the next two nominees be vitiated, they be 
considered and passed en bloc.
  The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so 
ordered.
  The question is, Will the Senate advise and consent en bloc to the 
nominations of Thomas L. Ludington, of Michigan, to be United States 
District Judge for the Eastern District of Michigan and Sean F. Cox, of 
Michigan, to be United States District Judge for the Eastern District 
of Michigan.
  The nominations were confirmed en bloc.
  Mr. LEAHY. Mr. President, today the Senate confirmed four lifetime 
appointments to U.S. district courts, Noel Hillman and Peter Sheridan, 
who have been nominated to seats on the U.S. District Court for the 
District of New Jersey, and Thomas Ludington and Sean Cox, who have 
been nominated to seats on the U.S. District Court for the Eastern 
District of Michigan. They are all nominees who have the support of 
Democratic home State Senators.
  I am glad the Republican leadership has taken notice of the fact 
that, as I discussed earlier this week, these nominees have been ready 
for action for some time, since being reported unanimously last month. 
I also look forward to working with the Republican leadership to 
schedule debate and consideration of Sandra Segal Ikuta, who has been 
nominated to a seat on the U.S. Court of Appeals for the Ninth Circuit, 
and Andrew Guilford to be a district judge for the Central District of 
California who also have the support of Democratic home State Senators 
and could also be easily confirmed. When they are considered, and I 
hope the Republican leadership will agree to do that next week and not 
delay, we will have confirmed 250 of President Bush's nominees to 
lifetime appointments on the Federal courts.
  As I noted earlier this week, the nominees we are considering today 
could have been confirmed earlier if the Republican leadership had 
chosen to proceed with them instead of pressing forward first with the 
controversial nomination of Brett Kavanaugh and the divisive debate 
over a constitutional amendment that had no chance of passing. I do 
commend the Republican Senate leadership for wisely passing over the 
controversial nominations of William Gerry Myers III, Terrence W. 
Boyle, and Norman Randy Smith to turn to these nominations today. In 
the course of an hour or two this week, the Senate will confirm five 
lifetime appointments to the Federal courts. Debate on those flawed 
nominations will take much longer. The Republican leadership is right 
to have avoided such controversial nominations that were only reported 
on a party-line vote.
  During the 17 months I was chairman of the Judiciary Committee and 
the Senate was under Democratic control, we confirmed 100 of President 
Bush's nominees. After today, in the last 17 months under Republican 
control, the Senate will have confirmed 43.
  Regrettably, rather than fill judicial vacancies with qualified 
nominees, the Republican leadership seems all too often more focused on 
picking fights. Last month, they forced debate on the controversial 
nomination of a White House insider selected for a lifetime position on 
the DC Circuit as a reward for his loyalty to President Bush. I did not 
support confirmation of Brett Kavanaugh. That was the fight the 
Republican leader had promised the narrow special interest groups of 
the rightwing of his party.
  The President and Senate Republican leadership continue to pick 
fights over judicial nominations rather than focus on filing vacancies. 
This is part of their partisan effort to agitate conservative voters, 
no doubt. They are willing to play politics with the Constitution and 
with the courts. They treat the Constitution as a billboard for 
campaign posters and political ads.
  Judicial vacancies have now grown to nearly 50 from the lowest 
vacancy rate in decades. More than half these vacancies are without a 
nominee. The Congressional Research Service has recently released a 
study showing that this President has been the slowest in decades to 
make circuit court nominations and the Republican Senate among the 
slowest to act. If they would concentrate on the needs of the courts, 
our Federal justice system, and the needs of the American people, we 
would be much further along.
  This week we passed a milestone, confirming the 17th judicial nominee 
this session. That was the total number of judges confirmed in the 1996 
congressional session, when Republicans controlled the Senate and 
stalled the nominations of President Clinton. In the 1996 session, 
however, Republicans would not confirm a single appellate court judge. 
All 17 confirmations were district court nominees. That is the only 
session I can remember in which the Senate has simply refused to 
consider a single appellate court nomination. That was part of their 
pocket-filibuster strategy to stall and maintain vacancies so that a 
Republican President could pack the courts and tilt them decidedly to 
the right. In the important DC Circuit, the confirmation of Brett 
Kavanaugh was the culmination of the Republicans' decade-long attempt 
to pack the DC Circuit that began with the stalling of Merrick 
Garland's nomination in 1996 and continued with the blocking of 
President Clinton's other well-qualified nominees, Elena Kagan and 
Allen Snyder.
  If the Republican leadership will work with us to schedule Sandra 
Segal Ikuta's nomination for consideration and a vote, we are likely to 
add another circuit court confirmation to that total. I only wish 
President Clinton's nominees had received the same treatment.
  The road ahead is likely to be rocky. In the runup to the Kavanaugh 
nomination debate, we saw that the Senate Republican leadership is 
apparently

[[Page S5645]]

heeding the advice of The Wall Street Journal editorial page, which 
wrote, ``[a] filibuster fight would be exactly the sort of political 
battle Republicans need to energize conservative voters after their 
recent months of despond.'' Rich Lowery, editor of the conservative 
National Review, listed a fight over judges as one of the ways 
President Bush could revive his political fortunes, writing that he 
should, ``[p]ush for the confirmation of his circuit judges that are 
pending. Talk about them by name. The G.O.P. wins judiciary fights.''
  Republican Senators are relishing picking fights over controversial 
judicial nominees. Senator Thune has said, ``A good fight on judges 
does nothing but energize our base . . . . Right now our folks are 
feeling a little flat.'' Senator Cornyn has said, ``I think this is 
excellent timing. From a political standpoint, when we talk about 
judges, we win.'' On May 8, 2006, The New York Times reported: 
``Republicans are itching for a good election-year fight. Now they are 
about to get one: a reprise of last year's Senate showdown over 
judges.'' The Washington Post reported on May 10: ``Republicans had 
revived debate on Kavanaugh and another Bush appellate nominee, 
Terrence Boyle, in hopes of changing the pre-election subject from 
Iraq, high gasoline prices and bribery scandals.''
  We should not stand idly by as Republicans choose to use lifetime 
Federal judgeships for partisan political advantage. In a May 11, 2006, 
editorial The Tennessean wrote:

       [T]he nation should look with complete dismay at the 
     blatantly political angle on nominations being advocated by 
     Senate Republicans now. . . . Republicans are girding for a 
     fight on judicial nominees for no reason other than to be 
     girding for a fight. They have admitted as much in public 
     comments. . . . In other words, picking a public fight over 
     judicial nominees is, in their minds, the right thing to do 
     because it's the politically right thing to do. . . . Now, 
     Republicans are advocating a brawl for openly political 
     purposes. The appointment of judges deserves far more respect 
     than to be an admitted election-year ploy. . . . It should be 
     beneath the Senate to have such a serious matter subjected to 
     nothing but a tool for political gain.

  On May 3, 2006, The New York Times wrote in an editorial: ``The 
Republicans have long used judicial nominations as a way of placating 
the far right of their party, and it appears that with President Bush 
sinking in the polls, they now want to offer up some new appeals court 
judges to their conservative base.''
  Consider the President's nomination of Judge Terrence Boyle to the 
Fourth Circuit. We have learned from recent news reports that, as a 
sitting U.S. district judge and while a circuit court nominee, Judge 
Boyle ruled on multiple cases involving corporations in which he held 
investments. In at least one instance, he is alleged to have bought 
General Electric stock while presiding over a lawsuit in which General 
Electric was accused of illegally denying disability benefits to a 
longtime employee. Two months later, he ruled in favor of GE and denied 
the employee's claim for long-term and pension disability benefits. 
Whether or not it turns out that Judge Boyle broke Federal law or 
canons of judicial ethics, these types of conflicts of interest have no 
place on the Federal bench. Certainly, they should not be rewarded with 
a promotion to the Fourth Circuit. Certainly, they should be 
investigated.
  The President should heed the call of North Carolina Police 
Benevolent Association, the North Carolina Troopers' Association, the 
Police Benevolent Associations from South Carolina and Virginia, the 
National Association of Police Organizations, the Professional Fire 
Fighters and Paramedics of North Carolina, as well as the advice of 
Senator Salazar and former Senator John Edwards, and withdraw his ill-
advised nomination of Judge Terrence Boyle. Law enforcement from North 
Carolina and law enforcement from across the country oppose the 
nomination. Civil rights groups oppose the nomination. Those 
knowledgeable and respectful of judicial ethics oppose this nomination. 
This nomination has been pending on the calendar in the Republican-
controlled Senate since June of last year when it was forced out of the 
committee on a party-line vote. It should be withdrawn.
  Also on the calendar is the nomination of William Myers to the Ninth 
Circuit. This is another administration insider and lobbyist whose 
record has made him extremely controversial. I opposed this nomination 
when it was considered by the Judiciary Committee in March 2005. He was 
a nominee who the so-called Gang of 14 expressly listed as someone for 
whom they made no commitment to vote for cloture, and with good reason. 
His antienvironmental record is reason enough to oppose his 
confirmation. His lack of independence is another. If anyone sought to 
proceed to this nomination, there would be a need to explore his 
connections with the lobbying scandals associated with the Interior 
Department and Jack Abramoff. This nomination should also be withdrawn.
  A few months ago, the President withdrew the nomination of Judge 
James Payne to the Court of Appeals for the tenth Circuit after 
information became public about that nominee's rulings in a number of 
cases in which he appears, like Judge Boyle, to have had conflicts of 
interest. Those conflicts were pointed out not by the administration's 
screening process or by the ABA but by journalists.
  Judge Payne joins a long list of nominations by this President that 
have been withdrawn. Among the more well known are Bernard Kerik to 
head the Department of Homeland Security and Harriet Miers to the 
Supreme Court. It was, as I recall, reporting in a national magazine 
that doomed the Kerik nomination. It was opposition within the 
President's own party that doomed the Miers nomination.
  During the last few months, President Bush also withdrew the 
nominations of Judge Henry Saad to the Court of Appeals for the sixth 
Circuit and Judge Daniel P. Ryan to the Eastern District of Michigan 
after his ABA rating was downgraded.
  It is not as if we have not been victimized before by the White 
House's poor vetting of important nominations. If the White House had 
its way, we would already have confirmed Claude Allen to the Fourth 
Circuit. He is the Bush administration insider who recently resigned 
his position as a top domestic policy adviser to the President. 
Ultimately we learned why he resigned when he was arrested for 
fraudulent conduct over an extended period of time. Had we Democrats 
not objected to the White House attempt to shift a circuit judgeship 
from Maryland to Virginia, someone now the subject of a criminal 
prosecution for the equivalent of stealing from retail stores would be 
a sitting judge on the Fourth Circuit confirmed with a Republican 
rubberstamp.
  Yet another controversial pending nomination is that of Norman Randy 
Smith to the Ninth Circuit. This nomination is another occasion on 
which this President is seeking to steal a circuit court seat from one 
State and reassign it to another one, one with Republican Senators. 
That is wrong. I support Senators Feinstein and Boxer in their 
opposition to this tactic. I have suggested a way to resolve two 
difficult situations if the President were to renominate Mr. Smith to 
fill the Idaho vacancy on the Ninth Circuit instead of a vacancy for a 
California seat. Regrettably, the White House has not followed up on my 
suggestion.
  A complicit Republican-controlled Senate remains all too eager to act 
as a rubberstamp for the Bush-Cheney administration. The nomination of 
Mr. Kavanaugh was one of the few to be downgraded by the ABA upon 
further review. Until the Republican-controlled Senate proceeded to 
confirm this White House insider, I cannot recall anyone being 
confirmed after such a development--another first, and another 
problematic confirmation that ill serves the American people.
  Another troubling nomination is that of William James Haynes to the 
Fourth Circuit, which has been pending in the Republican-controlled 
Senate without action for 3 years. Mr. Haynes is the general counsel at 
the Defense Department and was deeply involved developing the torture 
policies, detention and interrogation policies, military tribunals, and 
other controversial aspects of the manner in which this administration 
has proceeded unilaterally to make mistakes and exceed its legal 
authority. Concerns about the Haynes nomination may not be confined to 
Democratic Senators, according to recent press reports.
  I trust that the Senate will not repeat the mistake it made before. 
It was

[[Page S5646]]

only after Jay Bybee was confirmed to a lifetime appointment to the 
Ninth Circuit that we learned of his involvement with the infamous 
Bybee memo seeking to justify torture and degrading treatment. I had 
asked him what he had worked on while head of the Department of 
Justice's Office of Legal Counsel, but he had refused to respond. This 
former Defense Department and Justice Department insider now sits on 
the Ninth Circuit for life.
  Finally, there is the more recent nomination of Michael Wallace to a 
vacancy on the Fifth Circuit. Mr. Wallace received the first ABA rating 
of unanimously ``not qualified'' that I have seen for a circuit court 
nominee since President Reagan. Yet that is one of the controversial 
nominations we can expect the Republican Senate to target for action 
given their track record.
  One of the most important checks and balances to unprecedented 
overreaching by the Bush-Cheney executive branch is an independent 
judiciary. I have sought to expedite consideration of qualified, 
consensus nominees and urged the President to work with us to make 
selections that unite all Americans. When the White House fails to make 
those kinds of selections, I hope that the Republican-controlled Senate 
will stop rubberstamping them and stop using controversial judicial 
nominations to score partisan political points. Our courts are too 
important. The rights and liberties of the American people are too 
important. The courts are the only check and balance left to protect 
the American people and provide some oversight of the actions of this 
President.

                          ____________________