[Congressional Record Volume 152, Number 98 (Monday, July 24, 2006)]
[Senate]
[Pages S8119-S8122]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    MOMENT OF SILENCE TO HONOR OFFICER CHESTNUT AND DETECTIVE GIBSON

  The PRESIDING OFFICER. Under the previous order, the Senate will 
observe a moment of silence in recognition of the anniversary of the 
fatal shootings of Officer Chestnut and Detective Gibson.
  (Moment of silence.)
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. FRIST. Mr. President, it was 8 years ago today that these two 
brave men gave their lives in defense of the United States Capitol. A 
plaque in this building commemorates their bravery. Their names have 
been etched indelibly upon the National Law Enforcement Officers 
Memorial a mile from here, and the headquarters of the United States 
Capitol Police now bears their names, all of which are fitting and 
proper memorials but none of which can do these men the full justice 
they deserve.
  We must also remember them in our words, in our actions, and in, as 
we just did, a moment of prayer. All Members of Congress today, all 
congressional staff, and, indeed, all Americans owe a great debt of 
gratitude to Officer Jacob Joseph Chestnut and Detective John Michael 
Gibson.
  These two brave men stood up for us all. They defended our democracy 
itself, and although none of us will be called upon to display the same 
sort of moral heroism, we can all learn from their example and all 
reflect upon their bravery.
  Today we mourn for them, we pray for them, we thank them and their 
families, and we remember them.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, there may be other Members of the Senate who 
have served as police officers during their careers, sitting Members of 
the Senate. But I served as a Capitol police officer when I was going 
to school back here. I worked the swing shift. I have a great affection 
and feel very affiliated with the Capitol police.
  Officer Gibson was killed along with Officer Chestnut on the House 
side. Not long before this terrible act occurred, the Democratic Senate 
had a retreat in Virginia. My wife got sick during the night. We had to 
call the Capitol police who were standing by. I can remember Officer 
Gibson running. He had to run from where the headquarters was, in a 
different part of the hotel, to our room--it was spread out a long 
way--carrying all this emergency equipment. When he came, he was 
perspiring so hard. He was so gentle and nice with my wife. Every time 
I hear this recounted, how he and Officer Chestnut were killed, I 
remember this man so clearly. I can see his face very plainly.
  I have expressed to his family my personal appreciation, as I tried 
to do for Officer Chestnut, whom I did not know except in passing--but 
I felt some affinity toward Officer Gibson. These two men were at one 
of the entrances to this Capitol. The crazed man came in and killed 
both of them. While we have this terrible event in the history of the 
Capitol 8 years ago today--1998--if there could be a positive side, and 
that is hard to find, the one place you would have to go is the 
Visitors Center. That is because as a result of this tragic event the 
decision was finally made, after years and years of treading water, to 
go ahead and take care of a new visitors center for this Capitol 
complex. That will be completed in less than 1 year.
  It is going to be a wonderful addition to the Capitol for people who 
are visiting the Capitol. Millions of people

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come to visit the Capitol every year. Right now they come through these 
doors, just like the ones Officers Chestnut and Gibson were guarding. 
There have been improvements made, but it is hard to do that because of 
the doorways as you come into the Capitol itself. With the new Visitors 
Center, there will be an entry over by the Supreme Court. People coming 
in will be able to be screened for weapons and other dangerous 
materials.
  There will be two beautiful auditoriums where they can watch a 12-
minute film to acquaint them with what is in the Capitol. There will be 
restrooms which are still lacking with the present situation. There 
will be places for them to eat, get snacks, and buy food. It will be a 
wonderful experience for them to come to the Capitol. It is a good 
experience now, but the new situation will make the experience much 
better.
  After 8 years, we still remember these two fine men. We do so not 
only because of their personal sacrifice, but the fact that every day 
in this Capitol--as I look around, there are plain-clothes officers. A 
lot of people do not know who they are, but they are here. And they 
would give their lives protecting the Presiding Officer, the 
distinguished majority leader, and the assistant leader, those in the 
back rooms, or any other Senator. That is their job. They know it. 
While we sometimes take them for granted--and I hope we don't--these 
are some of the finest trained police officers in the world.
  When we stand for Chestnut and Gibson in a moment of silence, our 
thoughts are also with these valiant men and women who protect this 
beautiful facility and the people who are in it--Senators, staff, and 
visitors.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COBURN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.
  Mr. COBURN. Mr. President, I yield 15 minutes to the Senator from 
Alabama.
  The PRESIDING OFFICER. The Senator has 5 minutes remaining under his 
control.
  I recognize the Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I am baffled that there would be any 
opposition to Jerome Holmes to be appointed a U.S. circuit court judge 
to the Tenth Circuit. I congratulate my colleague from Oklahoma for his 
leadership in promoting such a fabulous nominee. I believe that he 
would be just the kind of person we need on the bench. It's really, 
really baffling to hear any objection to him.
  I want to talk about his background and record, and we'll begin to 
have a better understanding of the demand for ideological purity on the 
part of Democratic and liberal Members of the Senate when it comes to 
judges. It is unbelievable that there would be objection a man who 
articulates a view consistent with the Supreme Court majority in the 
Adarand case, an African American himself, who believes in Martin 
Luther King, Jr.'s dream that people would be judged by the content of 
their character and not the color of their skin.
  He is a fabulous nominee. I would just like to mention a few things 
about him. He was voted out of committee a few weeks ago, July 13, on a 
voice vote. If confirmed, he will be the first African American to 
serve on the Tenth Circuit. He has stellar academic credentials and 
legal credentials. He graduated from Wake Forest University--one of 
America's great universities--cum laude with honors in 1983. Then he 
attended Georgetown University Law Center, one of the Nation's great 
law schools. At Georgetown, he was editor-in-chief of the Georgetown 
Immigration Law Journal. That's a great honor, to be part of a law 
journal at any law school, much less a great law school such as 
Georgetown. It's very competitive and difficult to get in Georgetown.
  Recently, in 2000, he earned a master's of public administration from 
Harvard University's Kennedy School of Government. Between college and 
law school, he worked briefly as a social services assistant with the 
D.C. Department of Corrections, dealing with criminals and the problems 
they have.
  Following law school, he clerked for the Honorable Wayne Alley on the 
U.S. District Court for the Western District of Oklahoma and the 
Honorable William J. Holloway on the U.S. Court of Appeals for the 
Tenth Circuit. In other words, he clerked for a trial court judge in 
the Tenth Circuit. By the way, it is a competitive process to be 
selected to be a clerk for a trial court judge. It takes a good law 
student to be selected for that. Everyone who applies is not selected. 
It is a very great honor. People compete for those few positions.
  He worked at the trial bench, where he participated at the right hand 
of a U.S. Federal judge trying cases and participating in the trial of 
cases. Following that, he went to the Tenth Circuit, the very court he 
is now nominated to. If it is difficult to be a law clerk for a Federal 
district trial judge, it is far more difficult to be selected as a law 
clerk for a court of appeals judge. They have a stack of applications. 
They look at all competitors from around the country, and they select 
the best. He was an honors graduate from Wake Forest and a top graduate 
at Georgetown and editor of the Law Review, and he clerked for a 
Federal judge. He clerked and help Judge Holloway write opinions on the 
Tenth Circuit--the very thing he will be doing if he is confirmed to 
this position, which I trust he will be.
  Following these clerkships, he spent 3 years in private practice as 
an associate with the well-regarded law firm of Steptoe & Johnson, one 
of the best law firms in America. They do not hire just anybody.
  In 1994, Mr. Holmes began a distinguished career as a Federal 
prosecutor, serving as an assistant U.S. attorney in the Western 
District of Oklahoma, the circuit area where he will be a circuit judge 
when confirmed.
  I have served as an assistant U.S. attorney and as a U.S. attorney 
supervising assistant U.S. attorneys for almost 15 years. That is a 
great, great position because the assistant U.S. attorneys prosecute 
cases full time in Federal court before Federal judges. They learn 
everything there is to know about criminal law, which will be an 
important part of his duties as a Federal circuit judge. It is very 
good experience. Assistant U.S. attorneys get experience practicing 
before Federal judges, being involved in writing appeals to Federal 
judges, and understanding how the Federal system works. He did that for 
quite a number of years.
  During that time, he prosecuted public corruption cases. Now that's a 
challenge. I have been there and done that. That is not easy. 
Politicians do not take lightly to being indicted. They do not 
appreciate it, and it is tough litigation. He prosecuted Federal 
criminal civil rights violations. Somehow, I guess they are saying this 
African American who has achieved so much is insensitive to civil 
rights because he does not agree with everything the left thinks about 
affirmative action or quotas. He was the U.S. attorney's office's 
antiterrorism coordinator, and he worked on the prosecution team that 
built the case against the perpetrators of the Oklahoma City bombing. 
That is a good background that shows a breadth of experience.
  Since 2005, he has been the director of the prominent Oklahoma law 
firm of Crowe & Dunlevy, where he focused on white-collar criminal 
defense and complex litigation--another good background for the Federal 
bench.

  Not only has he been a prosecutor, but he has defended criminal 
cases, giving him a perspective on both sides. I am a big fan of 
prosecutors, but I understand my colleagues on the other side of that 
debate, who defend cases, as I have on occasion, appreciate the fact 
that prosecutors have some defense work. He has had both.
  Also, he chaired the firm's diversity committee, the committee 
committed to making sure that his law firm, Crowe & Dunlevy, did the 
things necessary to be a diverse law firm. He has

[[Page S8121]]

given back to the people of Oklahoma through taking leadership roles in 
a wide variety of important organizations. These include service as the 
director of the Oklahoma Medical Research Foundation. That is an 
important committee outside the normal realm of what a lot of people do 
with their lives, volunteering and giving time to a group like that. He 
also has served as trustee of the Oklahoma City National Memorial 
Foundation, director of the Oklahoma Academy for State Goals, chairman 
of the City Rescue Mission, helping people in trouble, down and out, 
people who need a hand to lift them up. I guess on occasion they 
minister to those people who are hurting, they minister to their souls. 
I think it is something to be proud of. He also served as vice 
president of the Oklahoma Bar Association.
  He enjoys strong bipartisan support in Oklahoma. Gov. Brad Henry, a 
Democrat in Oklahoma, recently wrote that the nominee ``is a highly 
qualified candidate, a superb lawyer, with a reputation for fairness, 
ethics, and integrity.''
  He summed up his letter by writing:

       In short, I do not think you could have a candidate more 
     highly qualified and regarded than Jerome Holmes.

  That is the Democratic Governor of Oklahoma.
  Daniel Webber, a Democrat whom President Clinton made the U.S. 
attorney in Oklahoma, wrote:

       I have known Jerome Holmes for over ten years. . . . I 
     believe his intellect, experience, and character make him an 
     excellent choice for a position on the appellate court.

  The American Bar Association has unanimously found him qualified for 
the position.
  Why would we have an objection to someone who spent this many years 
of his life practicing in Federal court as an assistant U.S. attorney, 
who spent 3 years as a law clerk to Federal judges, practicing in one 
of the country's biggest law firms, and being not a partner--they use a 
different phrase there, something like a partner--with the Dunlevy law 
firm in Oklahoma, a firm with a great reputation in the State? What is 
it that causes the Senate to have a debate on this fine nominee?
  Again, I congratulate Senator Coburn for offering this kind of 
nominee. He has been willing to express his personal views on matters 
that some on the left do not like. I guess that is it. Let's just be 
frank about it. I suggest that what he said is consistent with the 
opinions of the U.S. Supreme Court. But even if he had a slightly 
different view than the Supreme Court, what is wrong with having him 
express that view? Why would anyone object to that?
  This is what he said about the University of Michigan affirmative 
action case that many felt--and at least four Supreme Court Justices 
felt--was essentially a quota system. What is affirmative action? 
Everyone has a different view. What I think we in America tend to agree 
is that affirmative action, affirmative outreach, affirmative efforts 
to bring minorities into institutions and give them a chance to succeed 
is all right, but setting up quotas by which people, by the color of 
their skin, are given preference over someone else, therefore enhancing 
their ability and their rights over the rights of someone else simply 
because of the color of their skin, violates the equal protection and 
due process clauses of the U.S. Constitution. So that is all that 
tension in there.

  I guess we come down to it in what I say, this is not a perfect 
analysis, but we say affirmative outreach is good; quotas are bad. I 
guess when you have a case such as University of Michigan, you ask, was 
this a quota or was it affirmative outreach? They had a big case on it. 
He had expressed some concern about that case. Remember, it was 5 to 4. 
It was not as if the Supreme Court had taken a case that they all felt 
one way about. So he wrote an op-ed, an article in the Daily Oklahoman. 
The title is ``A Step Closer to King's Dream.'' He started off this 
way:

       Perhaps the dream of Dr. Martin Luther King, Jr. will be 
     realized: Children seeking educational opportunities no 
     longer will be judged by the color of their skin.

  Is that something that is radical? I don't think so. We have Members 
of this Senate who believe that anybody who deviates the slightest 
millimeter, or centimeter beyond the ideological views of the left is 
somehow unqualified to be a Federal judge. From what I have seen, they 
tend to be more critical if that person happens to be an African 
American that criticizes leftist orthodoxy.
  So he wrote an article. It was, I thought, a very thoughtful article. 
There was nothing extreme about this. He said:

       There are other ways to get minority students on college 
     campuses besides handing out benefits based solely on skin 
     color--an accident of birth.

  I think that is a thoughtful statement--a matter of real importance. 
He then goes on to talk about what you can do to help minority students 
succeed and have a better chance to enter universities, noting:

        . . . a poverty-reduction approach that primarily focuses 
     on implementing race-neutral macroeconomic and labor-market 
     policies, even though its central goal is bettering the life 
     chances of the truly disadvantaged black and brown urban 
     poor.

  He goes on to say:

       Diversity proponents need to come up with race-neutral 
     policies that have the desired effect of boosting the number 
     of minority students. Politicians and educators in Florida, 
     Texas and California have attempted to do just that by 
     mandating that the top percentage of students (for example, 
     the top 10 percent) at every public school in the state be 
     guaranteed a place in a state university.

  So what he is saying is that is a race-neutral way to have a more 
diverse student body. But what is dangerous and violates the 
Constitution is to say that every law school or every university must 
accept so many people, each based on race, regardless of their 
qualifications for the position.
  He goes on to say that this high school proposal that Florida, Texas, 
and California have done is ``race neutral, yet their acknowledged goal 
is to increase the number of minority students on college campuses. Top 
students from predominantly minority schools will invariably be 
represented there.''
  So, Mr. President, I would just say that I don't see anything extreme 
about those views. I don't believe my colleague from Oklahoma does. I 
see the Presiding Officer, a former justice on the Texas Supreme Court. 
I don't think he would believe those are extreme views. In fact, they 
are consistent with the U.S. Supreme Court opinion in Adarand. I think 
they are consistent with the Supreme Court opinion in the University of 
Michigan cases, very consistent with those cases, and respectful and 
understanding, as an African American himself, that we have to be 
careful that we are not moving to a situation in which people receive 
benefits as a result of the color of their skin only, unless there is a 
showing of a prior history of discrimination, which can be shown in a 
number of cases. Unless you have that, you should not create a legal 
system in America that advances someone simply because of the color of 
their skin and, therefore, puts at a disadvantage someone because of 
the color of their skin.
  So he has made some thoughtful comments about it. I believe they are 
wise. I think he is correct. I am amazed that someone in this Senate 
would object to his confirmation based on these comments. But we 
apparently have that. I am sure we will have a good vote for Mr. Holmes 
tomorrow. I hope we will, and he will be confirmed. But it is rather 
odd to me that we have this objection, and he doesn't go straight 
through without any of this kind of debate.
  I thank the Chair and the Senators from Oklahoma, Mr. Coburn and Mr. 
Inhofe, for their commitment to this sterling nominee, a minority, with 
an outstanding record--went to Georgetown, clerked for the Tenth 
Circuit, clerked for a Federal district judge, an assistant U.S. 
attorney, worked for one of America's great law firms. He has every 
right to be rated qualified by the American Bar Association, as he was 
unanimously. He should be confirmed for this position.
  I yield the floor.
  Mr. CORNYN. Mr. President, I am proud to join Senators Inhofe and 
Coburn--my friends and neighbors from the State of Oklahoma--in support 
of this fine nominee to the Federal bench.
  Jerome Holmes is a leader in Oklahoma's legal community--and a leader 
in the broader community in which he lives. Mr. Holmes has demonstrated 
the qualifications, character, and temperament that will make him an 
outstanding judge.

[[Page S8122]]

  As a testament to his ability and promise, the Judiciary Committee 
unanimously voted to move Mr. Holmes's nomination to this floor for 
confirmation. Jerome Holmes enjoys bipartisan support not only here in 
Washington, but, perhaps more telling, he enjoys bipartisan support 
back home in Oklahoma--where people know best this accomplished man and 
his good work.
  In fact, Oklahoma's Democrat Governor, Brad Henry, said of Mr. 
Holmes: ``Jerome is a highly qualified candidate, a superb lawyer with 
a reputation for fairness, ethics, and integrity . . . In short, I do 
not think you could have a candidate more highly qualified and regarded 
than Jerome Holmes.'' Again, Mr. President, that high praise comes from 
Oklahoma's Democrat Governor. Other prominent Democrats in Oklahoma 
praise Jerome Holmes as ``a person of unwavering integrity,'' a 
``principled leader,'' and someone with a ``willingness to listen and 
respect differing views.'' In short, the people who know this man 
best--Oklahomans of competing political stripes and policy views--think 
Jerome Holmes will make a great judge.
  Those who know Jerome Holmes best know that he served with 
distinction as a Federal prosecutor for over a decade. They know that 
as an Assistant U.S. Attorney he vigorously--but fairly--prosecuted 
public corruption and civil rights violations--and that he served as 
his office's antiterrorism coordinator. In fact, Jerome Holmes worked 
on the prosecution team that built a case against the perpetrators of 
the Oklahoma City bombing.
  I recall vividly that dark day in 1995, the day the Alfred P. Murrah 
Federal Building was bombed, the day that the people of Oklahoma City 
were terrorized. The Tenth Circuit's Chief Judge Deanell Reece Tacha 
pointed out that ``[i]n some ways,'' her circuit and the people of 
Oklahoma ``knew ahead of the rest of the nation of the horrors of 
terrorism.''
  Those who know Jerome Holmes best know that, he--like so many others 
in his office--took on this difficult assignment with fairness and care 
and dedication to see justice done.
  President Bush nominated this fine man to the appellate bench for his 
strong qualifications but also for his demonstrated understanding of 
the proper, limited role of the Federal judiciary under the U.S. 
Constitution.
  Jerome Holmes himself said it best:

       I recognize very clearly the distinction between the role 
     of a writer on social policy issues in their personal 
     capacity and the role of a judge in adjudicating the rights 
     and liberties of individual litigants.

  And Mr. Holmes pointed out that as a judge ``it is inappropriate for 
me to import my personal views on policy issues into the decision 
making process.''
  I would submit that this statement by Mr. Holmes is exactly correct. 
Judges should not be seen as politicians in robes. Unfortunately, too 
many people still view the Federal courts as a vehicle for enacting 
policy choices that are too extreme to prevail at the ballot box. And, 
as a corollary, these same people view activist judges as a means to 
their policy ends.
  I am confident that Jerome Holmes understands the proper, limited 
role that this Nation's Founders assigned to the Federal judiciary. I 
say that because I am confident that this President understands the 
judicial role and continues to nominate like-minded men and women to 
the bench.
  The court to which Mr. Holmes is nominated--the Tenth Circuit Court 
of Appeals--covers a large part of the middle and western United 
States. The territorial jurisdiction of the Tenth Circuit includes six 
States: Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. And 
the circuit also has jurisdiction over those parts of Yellowstone 
National Park extending into Montana and Idaho.
  Last week, the Senate confirmed another outstanding nominee to the 
Tenth Circuit, Neil Gorsuch. And when the Senate votes to confirm 
Jerome Holmes, as I am confident it will, he will join Judge Gorsuch 
and four other fine Bush nominees on the Tenth Circuit.
  So, in closing, I commend President Bush for submitting another fine 
nominee to the Senate for confirmation, and congratulate my friends 
from Oklahoma, their constituents, and the entire Tenth Circuit. I 
believe Jerome Holmes will make a fine appellate judge and will serve 
this Nation with honor and distinction.
  I yield the floor.
  Mr. COBURN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Warner). Without objection, it is so 
ordered.

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