Congressional Record, Volume 152 Issue 72 (Thursday, June 8, 2006)

[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

[[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

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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.

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