Congressional Record, Volume 152 Issue 99 (Tuesday, July 25, 2006)

[Congressional Record Volume 152, Number 99 (Tuesday, July 25, 2006)]
[Senate]
[Pages S8137-S8151]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF JEROME A. HOLMES TO BE UNITED STATES CIRCUIT JUDGE FOR
THE TENTH CIRCUIT

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to resume consideration of
Calendar No. 764, which the clerk will report.
The legislative clerk read the nomination of Jerome A. Holmes, of
Oklahoma, to be United States Circuit Judge for the Tenth Circuit.
The ACTING PRESIDENT pro tempore. There will be 2 hours of debate
equally divided between the Senator from Pennsylvania, Mr. Specter, and

[[Page S8138]]

the Senator from Vermont, Mr. Leahy, or their designees.
The Senator from Illinois.
Mr. DURBIN. Mr. President, before the Senate this moment is the
nomination of Mr. Holmes to be a judge in the Federal court system. I
see the Senator from Oklahoma is here. I am sure he will speak to this
nomination. I am not going to address the nomination but put a
statement in the Record relative to my vote, which will be in
opposition to Mr. Holmes.
I have reviewed his record, as many members of the Senate Judiciary
Committee have, and there are many positive things to be said, as the
Senator from Oklahoma has mentioned in our committee deliberations. I
am concerned, though, about some of the statements that have been made
by Mr. Holmes in relation to his nomination on the issue of affirmative
action. I am concerned about whether he will truly come to this
important lifetime appointment with the type of objectivity and open
mind that we hope for when we give people this opportunity to serve
their Nation.
I am also concerned that the Leadership Conference on Civil Rights
yesterday made it clear that they oppose his nomination. It is an
important factor, in my judgment, in my decision, and I am sorry that I
will not be able to support this nomination as a result of that.
I also want to make it clear that the job of a Federal judge is a
very important one. It relates to issues that affect us every single
day. Just last week we had an extensive debate on the floor of the
Senate about stem cell research--those issues relative to life and
death in medical research that come before the courts. Judges have to
make decisions. I have no idea what Mr. Holmes's position is on this
issue. I don't know what statements he has made relative to it. What I
am about to say does not reflect on him at all.
But I do want to say I am very concerned about what I read in this
morning's newspaper about stem cell research. We know what happened
last week. President Bush used his first Presidential veto to stop
medical research--the first time in the history of the United States
that a President has made a decision that we will stop Federal funding
of medical research. He made that decision 5 years ago and said that no
Federal funds would go to the use of these embryonic stem cells.
We know how these stem cells are created. They are created in a
perfectly legal medical process where a man and a woman having
difficulty in conceiving a child expend great sums of money, effort,
and anguish to try to create this new baby in a petri dish, a glass
dish, in vitro in glass. It is the fertilization process in the
laboratory that usually takes place between a man and a woman in their
married life. It is a miracle that it works, that this process leads to
human life and people who have been praying for a baby finally have
that moment when they are told, yes, it worked, in vitro fertilization
worked, and you are going to have that baby you dreamed of and love the
rest of your life.
But in the process, there are created other embryos which are not
used. One is used to impregnate the woman. The others are left open,
extra, surplus. What happens to them? They can be preserved at extreme
cold temperatures for long periods of time. But, ultimately, if they
are never used by the couple, they are thrown away. They are discarded.
The question we had before us was, Is it better to take those
embryonic stem cells that would be cast away and discarded and use them
for medical research to find cures for diabetes, Parkinson's,
Alzheimer's and Lou Gehrig's Disease? Is it better to use them for that
purpose?
That was the vote. And it was a bipartisan vote, 44 Democrats and 19
Republican Senators. Sixty-three voted in favor of stem cell research,
reflecting America's feelings. Seventy percent of American people say
we should go forward with this research; that these embryonic stem
cells that will be thrown away, it is far better to use them to find
cures to relieve human suffering.

That is what most Americans believe. That is what a bipartisan
majority of the Senate believed. The magic number in the Senate is not
63 when it comes to this issue. The important number is 67. Why? That
is the number of Senators it would take to override a Presidential
veto, a veto of the stem cell research bill. We fell four votes short.
It became an operative issue when the President of the United States
decided to use his first Presidential veto to stop this medical
research.
On Saturday, I went back to Chicago. I met with a group of people. I
wish the President could have been there. I wish he could have been
standing with me out there in Federal Plaza by the Federal Building. I
wish he could have walked over to the wheelchair of Danny Pedroza, who
is suffering from a terrible neurological anomaly which has created a
burden I can hardly describe on his parents to keep him alive. I wish
the President could have heard his mother say: Every morning when I
walk into his bedroom, before I approach him, I look to see if he is
breathing. That is the struggle which she will face every single day.
All she wants the President to consider is the fact that this research
may give her little boy or other little boys and girls who face that a
chance.
I wish the President could have been there to see the victims of
Parkinson's, slightly embarrassed by the tremors which come, and stand
before the microphones and talk about their lives today.
I wish he could have been there to meet the mother of this beautiful
little girl who suffers from juvenile diabetes. Her mother--I know her
well by now, and I will not use her name on the Senate floor; I have
used it before--gets up every night twice in the middle of the night to
go over and take a blood sample from her daughter to make sure there is
no imbalance. Every night, twice a night. Think about that for a
moment.
I wish the President could have been there to see the Lou Gehrig's
disease victim that I saw at a round-table meeting in Chicago a few
months ago. He looked like a picture of health and strength. Here was a
man who was sitting in a wheelchair, immobile. He couldn't move any of
his limbs. He couldn't speak. His wife spoke for him and talked about
how stem cell research was their last prayer; that maybe, just maybe,
it could help him but certainly help others. As she spoke, he sat in
the wheelchair with tears coming down his cheeks.
You think to yourself: Mr. President, these are real life stories.
These are people who get up every single day and night in their battle.
These are mothers and fathers whose lives have changed dramatically and
will never be the same because of their love for their child or that
husband or that wife. These are people who counted on you to sign this
bill, to give them a chance.
What do we learn this morning? We learn that there was a little
apology from the White House about the language that was used about the
stem cell veto. I would like to read some of this into the Record
because I think it really reflects on what we were considering on the
floor of the Senate last week.
This article in this morning's Washington Post says:

President Bush does not consider stem cell research using
human embryos to be murder, the White House said yesterday.
Reversing its description of its position just days after he
vetoed legislation to lift Federal funding restrictions on
the hotly disputed area of study, White House Press Secretary
Tony Snow said yesterday that he ``overstated the President's
position.''

It went on to say the President rejected the stem cell research bill
``because he does have objections with spending Federal money on
something that is morally objectionable to many Americans.''
So the standard now is not that the President vetoed the bill because
using these embryonic stem cells is somehow taking human life or
murder. No. The standard is, according to Mr. Snow speaking for the
President, that this is an issue that is ``morally objectionable to
many Americans.''
We know that 70 percent of Americans support stem cell research. We
know that on any given issue, whether it is the war in Iraq, or
virtually any expenditure of Federal funds on a controversial issue,
there will be many Americans who object to it and oppose it. The
President is now saying he is not going to the heart of the issue as to
whether this process is immoral; rather, he is saying it was
politically unpopular and objectionable to many Americans.

[[Page S8139]]

It wasn't objectionable to the families of the victims I met with on
Saturday. What was objectionable was the President's veto. What was
objectionable is the fact that he would turn his back on this
opportunity for medical research.
When the President vetoed this bill, he had with him what are known
as snowflake babies. I met some of them, the most beautiful kids you
can imagine. These so-called snowflake babies are beautiful little
children. They were outside in the lobby. These were children who were
once these frozen embryos we talked about, and now are babies, smiling,
gurgling, jumping up and down. The President had many of them with him
at his veto of the stem cell research bill.
I think the total number of these babies in America is about 200. It
is an amazing act of love and courage for these families who want a
baby so badly they will go to the expense of this process. I am sure
these children will be loved the rest of their lives. They are lucky
kids. We are lucky to have them on this Earth. There are 400,000 frozen
embryos. It is not likely there will be so many families coming forward
to adopt or to create the life through a frozen embryo.
The answer to the President is this: There is room for both. We can
use embryos to create life for the couple who comes to the laboratory,
for those who want to adopt the embryo. There is ample opportunity for
that. But there is also an opportunity to use these embryonic stem
cells to save lives and to spare people from suffering. That is the
point the President missed. That is what this election is all about.
Last week, the House and the Senate voted on embryonic stem cell
research. The next vote on the issue will be on November 7. That is
when the American people will vote on stem cell research. That is when
they will have a chance to decide whether they want different
leadership in this Congress. That is when they will have a chance to
decide whether they want to give the Senate the four more votes we need
to override President Bush's veto. That is when they have to decide
whether we can bring this issue up after the 1st of next year, pass it
in the House and Senate and, if the President persists in his veto
position, override that veto in the House and the Senate.
That is what elections are all about. That is what this Government is
about. That is why it is important, for those who follow the stem cell
research debate, to understand it is not over. It has just begun. We
will continue the battle to fight for stem cell research. We will do it
on a bipartisan basis. We will try to find the Senators on both sides
of the aisle who support it. We beg those across America who think it
is important to move forward on stem cell research to understand now it
is in their hands. On November 7, across America, in congressional
elections for the House and the Senate, voters have a chance to ask the
candidates: Where do you stand on this? How will you vote? Will you
vote to override another veto by President Bush if it is forthcoming?
That is what the process is all about.
Today we debate a Federal judge. As I said, my remarks are not meant
to reflect on him personally at all because I don't know his position
on this issue nor would I even presume it at this moment in time. But
it is to put into context the decisions we make in the Senate, not just
on judges but on issues that affect real lives in America. Sadly, this
Senate has been derailed and diverted from the important issues people
care about. Do you know what issue we are going to next? After this
judicial nominee, we are going to be embroiled, at least for hours--and
I hope that is all we take of the time of the Senate on an issue that
is so peripheral it has never ever been raised to me by anyone in the
State of Illinois--on a question about people who would transport their
children or young people across a State line for an abortion situation,
a tragic decision to be made, for sure, but we are going to take up the
time of the Senate to deal with that when, in fact, there is no
controversy or issue that has been brought to my attention by anyone in
my State about this matter.
What else could we be doing in the Senate? How about something on
gasoline prices for Americans who are now facing $3 a gallon, gasoline
that might go to $4 a gallon if we are not careful? How about a
national energy policy? Wouldn't that be a good debate in the Senate?
Wouldn't it be worth our time to spend a few moments changing the Tax
Code to help ordinary families pay for college education expenses for
their kids? Think about students making it into good schools and
graduating with a mountain of debt. Wouldn't it be interesting if the
Senate found time to debate ways to help those families with tax
deductions? Wouldn't that be time well spent? Or perhaps a little time
talking about health insurance? Forty-six million Americans have no
health insurance and this Senate does not want to take up an issue to
offer American businesses the same kind of health insurance that is
available for Members of Congress. Why aren't we considering that?
Shouldn't we be considering the minimum wage across America? It has
been 9 years since we have increased the minimum wage--it is $5.15 an
hour--and during that same period of time, Members of Congress have
voted themselves an increase in salaries of $31,000. For 9 years we
have said to the hardest working, lowest paid Americans, you get no pay
raise. That has been our position. Shouldn't we change it? Shouldn't we
take the position the Democrats have taken, if we can't raise the
minimum wage, we are not going to increase congressional pay, period?
Shouldn't we also be considering legislation that deals with some of
the serious problems facing people with pensions across America who
work for a lifetime with the promise that they will be taken care of,
yet when they finally reach their golden years they find out that
through some corporate sleight of hand or a merger or bankruptcy, they
are left holding the bag? Why don't we do something to help those
families? Or change the Tax Code that rewards companies that send jobs
overseas? Why would we reward an American company with a tax break for
exporting jobs? Why don't we consider any of those issues I have just
listed as a priority?

No, what we are doing is dwelling on this debate relative to those
extreme narrow issues that appeal to the base of the Republican Party
vote. We went through Constitutional Amendment Month--that was June--
where we said we are going to address a major problem across America,
that is flag burning, but it turns out there have only been a handful
of instances in America in the last year. Has anyone even reported to
have burned a flag in this country? And we decided we are going to
change the Bill of Rights because of our concern over this major,
dominant issue?
Then, of course, the issue of gay marriage, a divisive issue. To
think we want to amend the Constitution--thank goodness they could not
even rally a majority of 100 Senators to vote for that constitutional
amendment which was clearly a political experiment, a political project
by the Republican side.
We cannot seem to find the time to get to the real issues of an
energy policy, a health care policy, doing something about paying for
college expenses for families. We cannot find the time for that. No, we
have to go after these divisive issues relative to abortion and other
matters such as that. That is the agenda and those are the priorities
of the Republican leadership in the Senate.
It is the reason why an overwhelming majority of Americans have said,
it is time for a change in Washington. They have taken a look at this
Republican Congress and they say it is time for a significant change,
to move us back toward an agenda that truly will make a difference and
move this country in a new direction.
I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tem. The clerk will call the roll.
The assistant 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 ACTING PRESIDENT pro tem. Without objection, it is so ordered.
Mr. COBURN. Mr. President, I don't know quite where to begin. If you
are sitting out in America today and you heard what you just heard,
what you heard was, I am going to point out how bad you are. Here is
what is wrong, here is the choice. What you heard was

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a partisan rant about the situation we find ourselves in today rather
than a constructive hand that says, let's work together to get things
done.
We heard a debate about stem cells so it could be used politically.
We heard a lot of words that were interchanged, stem cells versus
embryonic stem cells. We heard words that President Bush does not care
about people with illnesses, Republicans do not care about people with
illnesses. We heard words that 70 percent of Americans support stem
cell research. The fact is when you as Americans are asked, do you
think your taxpayer dollars ought to be used to destroy embryos for
embryonic research, that number changes to 38 percent.
Half truths are just that. The time we are supposed to be using is on
the nomination of a great American by the name of Jerome Holmes. What
we saw is, Members are going to vote against him because they have a
litmus test. That is what is going to drive our country farther apart
rather than bring us together. If you don't match up and you don't pass
the litmus test, then you can't be voted for.
The problem is, that works both ways. If the Senate is going to
change its approach to judicial nominees, and you have to match either
a liberal or conservative dogma, what will happen to our courts? What
will happen to our country?
The fact is Jerome Holmes is a man of absolute character, impeccable
credentials, and has integrity that nobody questions. Except by a
sleight of hand and backhanded inference that he doesn't care about
minorities, even though he is African American, he does not care about
minorities because he happens to have published a difference of opinion
on the legal basis for affirmative action, that is the litmus test.
That is why he is not going to be voted on.
Here is a man who grew up in less than ideal circumstances, graduated
cum laude, went to Georgetown University, has advanced degrees from
Harvard, has been a prosecutor, has been a defender, has been an
advocate for those who are less fortunate, and will be the first
African American ever to be on the Tenth Circuit Court of Appeals.
Yet as we heard, he measures up in everything except one thing: He
doesn't buy into what some want him to buy into on one issue. Who
better to question his own opinion--not his legal opinion but his own
personal opinion? Is it the fact that you can't have a personal opinion
about anything and become a judge in this country? How would we know
anything about them?
It takes great courage for an African American, a lawyer, to say, I
think there are some things that are wrong with the affirmative action
plan.
He did not say: I don't think we should have equality. He did not
say: I don't think we should make up for past deeds that have not been
rectified. What he said was: Here is what the Supreme Court did. I
think they should have gone a little further. And on that basis alone
he does not meet the absolute litmus test that is going to be required.
Well, think what happens if every judge who is conservative has to be
pro-life. Do they have to be pro-life? No. We have to get away from
this idea that you have to fit a certain mold politically before you
can be a judge in this country. And, if we do not, we are going to
destroy this country.
What we want is people of integrity who understand the limited role
of a judge; and that is not to put your personal opinions in but to, in
fact, take the Constitution, take the statutes, and take the treaties,
follow Supreme Court precedent, and make sure everybody who comes into
your courtroom gets a fair chance, given what those rules are. They are
not to make new law. They are not to put their opinions in. They are
not to change based on what they feel rather than what the law says.
The only way we can have blind justice is to make sure those litmus
tests are not a part of the selection. And what we heard today was the
opposition--wouldn't go into details--come and aggressively tell us why
you do not want Jerome Holmes to be an appellate judge on the Tenth
Circuit. We are not going to hear that. We are not going to hear that
at all. Instead, we are going to hear a political debate about the
politics of division in our country rather than the healing hand of
reconciliation that should be about the leadership in this body and
Congress. How do we reconcile our differences to move the country
forward instead of divide? How do we gain advantage in the next
election by making somebody look bad.
That is what we just heard. How do we make somebody look bad? It is
easy to make somebody look bad. It is a lot harder to build them up and
say, in spite of our differences, we can walk down the road together to
build a better America for everybody. We did not hear that this
morning. What we heard was the politics of division. First of all, I
think it is improper to do that when we are considering the nomination
of such a great American as Jerome Holmes.
I want to comment a minute on the stem cell debate. I am a physician.
I think it is so unfortunate that we are gaming this. All of us, as
families and members of this society, have members in our families who
have diseases for which future research is going to unlock wonderful
and magnificent cures. There is no question about that. But there is a
question about an embryo. I personally believe to destroy an embryo is
to take a life. That is my personal belief. You can have a different
position than that, and it does not make you a bad person. It just
means we have different positions. It does not make you incapable of
making good decisions in the future if you have a different position
than I do.
But there are some facts that are not out, and I would hope the
American public would listen to them. Embryonic stem cells have
tremendous potential. There is no question about it. But they also have
potential tremendous danger. And there will be no cure that will come
from embryonic stem cells that does not come along with potential
danger, and that is called rejection because it will not be your
tissue, it will be the tissue of a clone, which will still have foreign
DNA in it that is foreign to you. So any cure that comes out of
embryonic stem cell research will be faced with a lifelong utilization
of medicines to keep you from rejecting that treatment.
Now, the difference between an embryonic stem cell and a cord blood
or adult stem cell or an amniotic membrane stem cell or chorionic stem
cell is that it is your tissue, there is no rejection. There is no
potential for rejection if you use your own stem cells to treat
yourself so you do not have to have a lifelong utilization of
medicines. And the complication of those medicines is tremendous.
The other thing we did not hear today, which is the most promising
for everything that we have in terms of research, is called germ cell
stem cells, that have absolutely all the potential of embryonic stem
cells with none of the downside and none of the rejection and none of
the carcinogenesis or teratogenesis, which means the forming of
tumors--has none of the downside--so, in fact, we now have in front of
us, in the last 9 months, in this country an ethical alternative that
solves all the problems associated with embryonic stem cells and gives
us all the potential. But we did not hear a thing about that today.
We did not hear it because we were creating a wedge issue for the
elections rather than solving the problems of health care in this
country. We did not hear about the fact that you can take a stem cell
from the duct of the pancreas and recreate beta islet cells to have
people--children and adults--who are insulin dependent today have
reproduction of their insulin on their own from their own cells. We did
not hear that. What we heard was division rather than reconciliation.
I think it is highly unfortunate that we take time when we should be
talking about the merits of what do we want in our judges. I do not
care if a judge is liberal or conservative. I do not care if a judge is
a Republican or a Democrat. What I do care about is do they buy the
fact that they have a limited role? Do they understand what that role
is, that they are there to follow stare decisis, precedent set by the
Supreme Court, and the only books they get to look at is what the law,
the Constitution, and the treaties say? That is what they get to decide
it on, and the facts of the case.
It should not matter what their political affiliation is. It should
not matter what their philosophy is of life.

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What should matter is, how do they see their role? Jerome Holmes is a
man who understands the role of a judge. He will make a fine judge.
There is not anybody who knows this man who has come forward, in any of
the testimony or any of the history, who has raised an issue about his
integrity, his competence, or his character. But we have one issue. He
has written his real opinion.
If we say judges cannot have an opinion outside of their job, then we
are going to have terrible judges--terrible judges. And if we use only
political marks--you have to line up on all the politically correct
stuff from my viewpoint or somebody else's viewpoint to be a judge--we
are going to have terrible judges. But, more importantly, we are going
to have a divided country.
What we need in our country today is leadership that brings us
together, not leadership that divides us. We need leadership that looks
at a vision of America as to what we need 30 years from now, and what
do we do today to get there, rather than to concentrate on our
differences today so we can have a political advantage in the next
election. The American people understand that. They can be manipulated.
We saw that today.
But America is great when America embraces its heritage. And that
heritage is self-sacrifice and service for the next generations. It is
not about, how do I make myself better today; how do I create an
advantage for me politically today. It is about putting me second and
our country first. It is about putting my party second and our country
first. It is about creating a future for the very lives we are saying
we want to cure with stem cells so they have something to look forward
to.
Those who vote against Jerome Holmes do not have that vision for
America. They have a vision of alienation, of division, of failure for
our country.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Mr. President, what is the parliamentary situation?
The ACTING PRESIDENT pro tempore. The Holmes nomination is pending.
Mr. LEAHY. Is there a time agreement?
The ACTING PRESIDENT pro tempore. Yes, there is.
Mr. LEAHY. How much time is available to the Senator from Vermont?
The ACTING PRESIDENT pro tempore. Forty minutes thirty seconds.
Mr. LEAHY. I thank the Chair. Mr. President, today, the Senate
considers the nomination of Jerome A. Holmes for a lifetime appointment
to the Court of Appeals for the Tenth Circuit. Just last week we
confirmed another nominee to the Tenth Circuit, the fifth to be
appointed by this President. This progress comes in stark contrast to
the seven years in which a Republican-led Senate failed to confirm a
single new judge for that court. Indeed, when I moved forward with the
nominations of Harris Hartz of New Mexico, Terrence O'Brien of Wyoming,
and Michael McConnell of Utah, it broke a longstanding partisan
barricade that had been maintained by Republicans. Among the victims of
the Republican obstruction were outstanding lawyers President Clinton
nominated such as James Lyons and Christine Arguello, who were never
even granted hearings by the Republican majority. Judge Lyons was among
the many Clinton nominees voted unanimously ``Well Qualified'' by the
American Bar Association who were never granted hearings, and Ms.
Arguello is a talented Hispanic attorney whose nomination had
significant, widespread and bipartisan support from her community and
State. They were among the more than 60 qualified, moderate judicial
nominees of President Clinton that Republicans ``pocket filibustered''
and defeated without hearings or votes of any kind.
Just last Thursday, Democratic Senators joined in the confirmation of
Judge Gorsuch, an extremely conservative nominee, and three others.
Working together we confirmed two circuit court nominees and two
Federal trial court nominees in a matter of minutes. We brought the
total number of judicial nominees confirmed during this President's
term to 255, which exceeds the total for the last 5\1/2\ years of the
Clinton administration. It brought the total number of judges confirmed
over the last 18 months to 50. Of course, during the 17 months I
chaired the Judiciary Committee the Senate confirmed 100 lifetime
judges, twice as many in less time. Last week's success demonstrates
again how we can make progress in filling vacancies by working
together. Senator Salazar's support for Judge Gorsuch was a critical
factor in our ability to act swiftly. Senator Lincoln's and Senator
Pryor's support for confirming Judge Shepherd to the Eighth Circuit
likewise made a real difference.
Regrettably, this nomination we consider today is not without
controversy and concern. Mr. Holmes initially was nominated to fill a
district court seat in Oklahoma. The White House withdrew that
nomination and renominated him to the circuit court after Judge James
H. Payne asked the President to withdraw his nomination. That
withdrawal came after public reports that Judge Payne had ruled on a
number of cases in which he had a conflict of interest. While the
committee never had a chance to hear directly from Judge Payne about
the reported conflicts, these types of conflicts are a violation of
Federal law as well as canons of judicial ethics and have no place on
the Federal bench. Certainly, they should not be rewarded with a
promotion.
Before Mr. Holmes' hearing, I raised concerns about the many
controversial letters and columns he has written on such topics as
juror racial bias, affirmative action, discrimination, and school
vouchers. In these writings, Mr. Holmes derided opposing points of view
and those who held them. I asked Mr. Holmes to address my concerns
about how he might rule on civil rights issues and how he would treat
litigants as a judge. Regrettably, Mr. Holmes' stock answers to my
questions that he would follow Supreme Court precedent have not
reassured me that he would be the kind of judge who understands the
critical role of the courts as a protection of individual rights and
civil rights.
In one column, Mr. Holmes described certain allegations of racial
prejudice at criminal trials as ``harmful'' because it ``bolster[s] the
cynical view that jurors vote along racial lines,'' which ``undermines
public confidence in the fairness of the criminal justice system.'' In
fact, Mr. Holmes suggested that it is the focus on the problem of
racial bias in jury selection--as opposed to the racial bias itself
that--harms the criminal justice system. He wrote that focusing on
racial bias ``may actually give the green light to jurors to exercise
arbitrary power in the jury box when their racial number allow it.''
The Supreme Court has long recognized that racial bias in jury
selection undermines constitutional guarantees to a fair trial,
establishing in the landmark 1986 decision Batson v. Kentucky that
striking jurors on the basis of race is unconstitutional. In contrast
to Mr. Holmes' statement that accusations of racial bias are merely
``cynical,'' Batson was based on evidence showing patterns of race
discrimination in jury selection. It has been reaffirmed repeatedly
during the last 20 years in sharp contrast to the views of Mr. Holmes.
I gave Mr. Holmes every opportunity to admit error and indicate not
only that he had learned of the Supreme Court's precedent but that he
had adopted that view of the law and accepted the prohibitions against
racial discrimination as just, but received no such reassurance.
Instead, the nominee begrudgingly acknowledged that he would have to
follow Supreme Court precedent when expressly bound by it.
In another column Mr. Holmes wrote after the Supreme Court's landmark
affirmative action decision, Grutter v. Bollinger, he criticized the
High Court for missing an ``important opportunity to drive the final
nail in the coffin of affirmative action'' and said that the ``court
did not go far enough: Affirmative action is still alive.'' In
addition, he described affirmative action scholarship programs as
involving classifications that are ``constitutionally dubious and
morally offensive.''
This was a landmark case and in it Justice Sandra Day O'Connor spoke
for the Supreme Court and the Nation. Justice O'Connor, a conservative
appointed by President Reagan, considered the facts and the law
carefully. She took into account the brief from 65 leading U.S.
corporations that noted

[[Page S8142]]

the importance of a diverse workforce and the brief of a highly
respected group of former military officers that the military needed a
racially diverse and highly qualified corps of officers. She built upon
the Supreme Court's Bakke decision when she upheld the University of
Michigan Law School's use of race as a factor in law school admissions
and affirmed the important interest in diversity. She proclaimed:
``Effective participation by members of all racial and ethnic groups in
the civic life of our nation is essential if the dream of one nation,
indivisible, is to be realized.'' She went on to note that she hoped
and expected that consideration of race might no longer be necessary in
another 25 years. Even after the decision, Mr. Holmes chose to
criticize Justice O'Connor's pragmatic, principled and practical
resolution of what had become an ideological dispute. Sadly, Mr. Holmes
seems to continue to want to take sides, and in my view, he is on the
wrong side.
Just last week, the Senate unanimously extended the expiring
provisions of the Voting Rights Act of 1965 for another 25 years. We
all hope that such special provisions will no longer be necessary after
another 25 years of growth and progress. But they are needed now.
Last week, we also heard the President, who has nominated Mr. Holmes,
acknowledge that slavery and racial discrimination ``placed a stain on
America's founding, a stain that we have not yet wiped clean.'' In his
first-ever address to the NAACP national convention during his time in
office, the President said racial discrimination remains a ``wound''
that ``is not fully healed.'' I will not soon forget President Bush
speaking to the nation from Jackson Square in New Orleans and
acknowledging that ``poverty has roots in a history of racial
discrimination, which cut off generations from the opportunity of
America.''

Such powerful words inspire hope for change. But that change only
occurs when those words are followed by action. During his address to
the NAACP, the President lamented the Republican Party's loss of
support among many African Americans in our country today. He called it
a ``tragedy'' that the party of Abraham Lincoln could disenfranchise
the African-American community. It is not difficult to understand why.
Despite his eventual support for the reauthorization of the Voting
Rights Act, this President's priorities, his polices--and indeed his
nominees do not demonstrate any sort of meaningful commitment on the
part of this administration to confront the very real racial and
economic disparities that continue to persist today.
When considering a nominee to a lifetime appointment on the Federal
bench, a chief consideration of mine has always been whether all
litigants would get a fair hearing in that nominee's courtroom. That is
why I have been, and remain, concerned about the tone and stridency of
Mr. Holmes' writings. In answering my questions about the tone of his
criticisms of those with whom he disagrees on issues, Mr. Holmes seeks
to make a distinction between ``the role of the opinion-article
writer'' and the role of a judge. The fact that Mr. Holmes took part in
hard-edged debate on public issues should not be disqualifying. It
appears, however, that those opinions are what earned him this elevated
nomination and what his proponents expect he will deliver from the
bench.
Mr. Holmes has been an outspoken critic not only of affirmative
action programs and efforts to combat race discrimination, but of
African-American civil rights leaders who support them, calling them
``ideologically bankrupt.'' He has called into question the sincerity
of civil rights organizations opposed to school vouchers by describing
them as having ``longstanding ties to school employee labor unions,
which view vouchers as a dangerous threat to the educational status
quo, in which teachers bear little or no accountability for their
students' educational failures.'' When the convention of the NAACP
reacted negatively last week to President Bush's advocacy for vouchers,
it was not because they were under the sway of any teachers' union. It
was because they know how important public education is to the futures
of so many from minority communities.
In a letter to one publication, Mr. Holmes criticized claims of race
discrimination based on forced assimilation, characterizing a doctor's
complaint that his colleagues had ``negative reactions to his
dreadlocks'' as ``naive.'' In another article, he described a defense
attorney's concerns about racial bias in jury selections as
``philosophically offensive.'' Mr. Holmes' comments belittling those
concerned with the persistence of race-based barriers in this country
leave me with little assurance that he has the ability to maintain
objectivity when applying constitutional and statutory remedies for
race discrimination and concerned that he will not have an open and
fair mind as a judge.
Mr. Holmes membership in the Men's Dinner Club of Oklahoma City,
which restricts its membership to men, also concerns me about his
ability to have an open mind. He did not resign his membership until
February 2, 2006, less than 2 weeks before his initial nomination to be
United States District Judge for the District of Oklahoma, presumably
only after he had been notified that he would be nominated. When I
asked him about why he said in his response to the committee's
questionnaire that he did ``not perceive the club as practicing
invidious discrimination,'' he did not respond directly. Instead, he
declared in a self-serving conclusion that he would ``not knowingly be
a member of any organization that harbored or expressed any bias
against women, or any other groups on the basis of immutable
characteristics.'' I am left to wonder what it is that Mr. Holmes would
consider the kind of discrimination with which he would not want to be
associated and why he was not troubled by the Men's Dinner Club. It was
a place for social and professional advancement for him and he seemed
not at all concerned with its restrictive policies. The fact that Mr.
Holmes did not resign until the eve of his nomination because ``some
might perceive the Men's Dinner Club as being an improper
organization'' is troubling.

I worry that even before I announced any opposition to Mr. Holmes'
nomination, we had already begun to hear the whispers of criticisms
taken from the pages of the playbook of extreme right-wing groups.
These groups marked a new low a few years ago by launching a scurrilous
campaign to inject religion into the debate over judicial nominations.
These smears were fabricated as a calculated weapon to chill proper
consideration of candidates nominated for significant judicial
positions. Similar, baseless accusations of other forms of
discrimination serve only to inflame and distract from the fair and
deliberate consideration of judicial nominations.
The Senate has confirmed 255 of this President's nominee including
100 who were approved during the 17 months that Democrats made of the
Senate majority. The first confirmation when I became chairman was of
an African-American circuit court nominee on whom Republicans had
refused to vote. For that matter, it was Republican Senators who
defeated the nominations of Justice Ronnie White, Judge Beatty, Judge
Wynn, Kathleen McCree Lewis and so many outstanding African-Americans
judges and lawyers who they pocket filibustered.
I was surprised when we debated Mr. Holmes' nomination in the
Judiciary Committee that those defending Mr. Holmes' nomination
criticized any expression of concern about his troubling writings in
the area of civil rights. I appreciated when the Senator from Oklahoma
apologized to me after that debate. The Senators from Oklahoma are
within their rights in supporting this nomination. In fact, I consider
their support as a weighty factor in considering this nomination.
That support is not universal. This is a controversial nomination. A
number of leading organizations concerned with civil rights, including
the NAACP, MALDEF, and many others, raised ``grave concern'' about Mr.
Holmes' record. The Leadership Conference on Civil Rights, the
country's oldest, largest civil rights coalition has opposed the
confirmation of this nomination. Having reviewed the record, I share
those concerns.
In the last several months, as we have worked to reauthorize and
revitalize the Voting Rights Act, I have been thinking about the civil
rights movement, what progress we have

[[Page S8143]]

made, and what distance we still have to go. The new law is named for
Coretta Scott King among others. Dr. Martin Luther King Jr. knew that
our judges and our courts were important to securing civil rights. It
was not the Congress but the Supreme Court that moved the Nation
forward in its Brown v. Board of Education decision in 1954. It is
worth recalling Dr. King's call for the political branches to join the
courts in protecting the fundamental rights of all. In his 1957
address, ``Give Us the Ballot,'' Dr. King said, ``[s]o far, only the
judicial branch of the government has evinced this quality of
leadership. If the executive and legislative branches of the government
were as concerned about the protection of our citizenship rights as the
Federal courts have been, then the transition from a segregated to an
integrated society would be infinitely smoother.'' Dr. King knew how
important fairminded judges were to the realization of equality. Dr.
King's view and that expressed by Mr. Holmes appear to be in sharp
contrast.
I take no pleasure today in doing my duty. I have considered this
nomination on its merits and, in good conscience, I cannot support it.
Based on Mr. Holmes' own writings and his responses to our questions, I
will vote no. I hope that Mr. Holmes will prove my concerns unfounded
and be the kind of judge that Dr. King would have admired, a judge in
the mold of Thurgood Marshall, William Hastie or A. Leon Higginbotham,
Jr.
I ask unanimous consent that a letter raising grave concerns from the
Leadership Conference on Civil Rights regarding Mr. Holmes' nomination
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Leadership Conference

on Civil Rights,

Washington, DC, June 14, 2006.
Hon. Arlen Specter, Chairman,
Hon. Patrick J. Leahy, Ranking Member,
Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Specter and Ranking Member Leahy: On behalf
of the undersigned organizations, we write to express our
grave concern regarding the nomination of Jerome Holmes to
serve on the Court of Appeals for the Tenth Circuit. Mr.
Holmes has been a longstanding and outspoken critic of
affirmative action. His criticism of affirmative action
raises serious questions about whether litigants could expect
him to rule impartially and fairly on claims that turn on
legal principles of affirmative action, and about Mr. Holmes'
approach to antidiscrimination laws more broadly, if he is
confirmed.
Many civil rights organizations, including the Leadership
Conference on Civil Rights (LCCR), the Leadership Conference
on Civil Rights Education Fund (LCCREF), and the other
signatories to this letter, worked to persuade the U.S.
Supreme Court to uphold the University of Michigan's
affirmative action programs. In the closely watched decision,
the Supreme Court reaffirmed that universities may take race
into consideration as one factor among many when selecting
incoming students. In a 5 to 4 opinion written by Justice
O'Connor, the Supreme Court in Grutter v. Bollinger
specifically endorsed Justice Lewis Powell's view in 1978's
Regents of the University of California v. Bakke that student
body diversity is a compelling state interest that can
justify using race in university admissions. The Supreme
Court thus resolved a split among the lower courts as to
Bakke's value as binding precedent.
Both before and after the Court spoke in Grutter, Mr.
Holmes has been openly hostile to affirmative action,
expressing his deeply held beliefs regarding the matter. To
that end, Holmes has penned several articles widely
publicizing these views. In one article, Holmes referred to
affirmative action as a vehicle to ``[sow] the seeds of
racial disharmony.'' As the Court decided the University of
Michigan affirmative action cases, Holmes stated that,
``[t]he court did not go far enough . . . the court upheld
the affirmative action policy of the university's law school.
And in so doing, it missed an important opportunity to drive
the final nail in the coffin of affirmative action.'' With
regard to minority scholarships, Mr. Holmes has written that,
the ``shelving [of] race-based scholarship programs . . .
takes us one step closer to a time when constitutionally
dubious and morally offensive racial classifications will no
longer impede the progress of any citizen toward full
achievement of the American dream.''
Affirmative action is a tool to provide qualified
individuals with equal access to opportunities. Affirmative
action programs, including recruitment, outreach, and
training initiatives, have played a critical role in
providing African-Americans and other minorities and women
with access to educational and professional opportunities
they would otherwise have been denied despite their strong
qualifications.
Although progress has been made over the last 30 years,
ensuring equal opportunity for African-Americans and other
minorities and women remains an elusive goal. Continued use
of affirmative action is necessary to help break down
barriers to opportunity and ensure that all Americans have a
fair chance to demonstrate their talents and abilities.
Therefore, we have no choice but to express our deepest
concerns regarding Mr. Holmes' nomination.
If you have any questions or need further information,
please contact Nancy Zirkin, LCCR deputy director or Richard
Woodruff at the Alliance for Justice.
Sincerely,
Alliance for Justice; American Federation of State,
County and Municipal Employees; Feminist Majority;
Lawyers' Committee for Civil Rights Under Law;
Leadership Conference on Civil Rights; Legal Momentum;
Mexican American Legal Defense and Educational Fund;
NAACP Legal Defense & Educational Fund, Inc.; National
Association for the Advancement of Colored People
(NAACP); National Partnership for Women & Families;
National Urban League; National Women's Law Center;
People For the American Way; The American Association
for Affirmative Action; YWCA USA.

Mr. LEAHY. Mr. President, I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. COBURN. Mr. President, could the Chair advise the time remaining
on both sides?
The ACTING PRESIDENT pro tempore. The majority has 46 minutes
remaining; the minority has 22\1/2\ minutes.
Mr. COBURN. I thank the Chair.
I ask unanimous consent that letters from judges, Democrats,
Republicans, businesses, the Governor of Oklahoma, be printed in the
Record in support of Mr. Holmes.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Court of Appeals,

Tenth Circuit,

Oklahoma City, OK, June 14, 2006.
Re recommendation of Jerome Holmes nomination for the United
States Circuit Judge for the Tenth Circuit Court of
Appeals.

Hon. Arlen Specter,
Chairman of Judiciary Committee, U.S. Senate, Washington, DC.
Dear Senator: I am pleased to recommend highly my former
clerk, Jerome Holmes, as a splendid candidate for service as
a United States Circuit Judge of the Tenth Circuit.
Jerome gave extraordinary service to me as my law clerk
from August 1990 to August 1991. He is dedicated to the
highest standards of intellectual service and performed his
work for our court as my clerk with complete impartiality and
compassion for the people whose cases were before the court.
I am convinced he will give extraordinarily fine service as a
fair minded and industrious judge of the Tenth Circuit Court
of Appeals if his nomination is confirmed. I heartily commend
Jerome for your favorable consideration.
Sincerely,
William J. Holloway, Jr.
____

Crowe & Dunlevy,

Attorneys and Counselors at Law,

Oklahoma City, OK, June 13, 2006.
Re Jerome A. Holmes.

Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senator Specter: I write in support of the nomination
of Jerome A. Holmes to the Tenth Circuit Court of Appeals.
After a distinguished career in the Office of the United
States Attorney for the Western District of Oklahoma, in
August, 2005, Jerome joined our firm as a director. Jerome
has already assumed firm leadership positions as the chair of
both our Diversity and Business Development Committees.
Jerome is thoughtful and principled in all that he does.
The other directors of this firm quickly learned to respect
and rely upon him. Jerome has been able to represent the
clients of the firm and become an integral part of our firm
through his outstanding analytical abilities and his
excellent temperament.
In fact, Jerome Holmes is a paradigm for the judicial
temperament and discretion that we expect of a judicial
officer. He is the most articulate and well spoken attorney I
have had the opportunity to work with, and is easily able to
ponder multiple sides of complex issues and arrive at a
thoughtful analysis.
Jerome has long been active in both the Oklahoma Bar
Association and the Oklahoma County Bar Association and is
now serving our profession as the vice president of the
Oklahoma Bar Association. He has earned the respect of the
legal community, both bench and bar, in this city and tate.
Jerome Holmes will fill the role as a member of the Tenth
Circuit Court of Appeals with distinction and the highest
level of professional integrity. I take, great pleasure in

[[Page S8144]]

sending my highest recommendation of Jerome Holmes for this
important judicial position.
Yours truly,
Brooke S. Murphy,
President.
____

Riggs, Abney, Neal, Turpen, Orbison & Lewis, Attorneys
and Counselors at Law,
Oklahoma City, OK, May 26, 2006.
Re recommendation of Jerome A. Holmes, U.S. Court of Appeals
for the Tenth Circuit.

Hon. Arlen Specter,
U.S. Senate,
Washington, DC.
Dear Senator: Please accept this letter as an enthusiastic
endorsement of Jerome A. Holmes for a position on the U.S.
Court of Appeals for the Tenth Circuit. Although I often find
myself in disagreement with Senators Inhofe and Coburn on a
variety of policy issues, I have a great deal of respect for
Jerome and must commend the Senators for endorsing his
nomination for this important judicial position. I
respectfully request that you move Jerome's name forward for
confirmation.
Jerome is an experienced trial lawyer, working on civil and
criminal matters. He recently entered private practice at one
of the largest law firms in Oklahoma, after a distinguished
11-year career as a federal prosecutor in the U.S. Attorney's
Office for the Western District of Oklahoma. During his time
in the U.S. Attorney's Office, Jerome primarily prosecuted
cases involving white collar and public corruption offenses.
He also worked for almost one year on the prosecution team
that brought charges against the perpetrators of the Oklahoma
City Bombing.
Jerome received his Juris Doctor from Georgetown University
Law Center, where he served as Editor-in-Chief of the
Georgetown Immigration Law Journal. He received a B.A. degree
from Wake Forest University, graduating cum laude. In
addition, Jerome earned a Master in Public Administration
degree from Harvard University's John F. Kennedy School of
Government, where he was a John B. Pickett Fellow in Criminal
Justice Policy and Management.
Jerome is licensed to practice law in three jurisdictions,
including Oklahoma. He also has been admitted to practice
before the Bars of the U.S. Supreme Count and the U.S. Courts
of Appeals for the Tenth Circuit and the District of Columbia
Circuit.
Jerome is a leader in his profession, currently serving on
the Oklahoma Bar Associations's Board of Governors (BOG) as
Vice President. He is the first African American in the
history of the Oklahoma Bar Association to occupy an
officer's position on the BOG.
Jerome's long-standing concern for the economically
disadvantaged is evident in his professional and civic
activities. Jerome serves on the ABA's Commission of
Homelessness & Poverty and is Chair of the Board of one of
the largest providers of shelter to Oklahoma's homeless, City
Rescue Mission. Jerome also is committed to ensuring that the
doors of the legal profession are open to underrepresented
racial and ethnic minorities. He is Chair of his law firm's
Diversity Committee and has devoted numerous hours to working
with minority high school students in a mock trial program.
Jerome enjoys widespread support among Oklahoma Democrats
and Republicans alike. In Oklahoma legal circles, Jerome has
a very strong reputation. He is a dedicated professional who
would be committed as a judge to fairness and justice, rather
than ideology. I heartily endorse Jerome's nomination for the
Tenth Circuit position without reservation. Please help all
Oklahomans by moving Jerome's name forward for confirmation
as soon as possible.
Sincerely,
Michael C. Turpen.
____

Jim Roth,

Oklahoma County District One,

Oklahoma City, Oklahoma.
Re: nomination of Jerome Holmes, 10th Circuit Court of
Appeals

Hon. Arlen Specter,
Chairman, U.S. Senate, Judiciary Committee, Washington, DC.
Hon. Patrick Leahy,
Ranking Member, U.S. Senate, Judiciary Committee, Washington,
DC.
Dear Distinguished Senators: It is truly an honor to offer
this Letter of Recommendation for your consideration on
behalf of Jerome Holmes, a nominee for the lOth Circuit Court
of Appeals.
I have known Jerome Holmes for several years, both
professionally and personally, as I am also a member of the
Oklahoma Bar Association. I know him to be a person of
Integrity and Character and I have always appreciated Mr.
Holmes' fairness in our dealings. What's more, I have
witnessed Mr. Holmes' efforts in our local community to
improve the lives of those around us; all people regardless
of where they live, what they look like or how much money
they have. He has an altruistic spirit that makes him a
standout in this world.
I serve Oklahoma County as one of three elected County
Commissioners, am a proud Democrat and consider Jerome Holmes
to be a principled leader who demonstrates mutual respect for
all people. In particular, he is respectful of views that
differ from his own and he enjoys tremendous bipartisan
support and respect.
If I can provide any further information or perspective,
please do not hesitate to contact me at your convenience.
Respectfully yours,
Jim Roth,
County Commissioner.
____

Holy Temple Baptist Church,

Oklahoma City, June 21, 2006
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senators Specter and Leahy: I am writing in reference
to the nomination of the Honorable Mr. Jerome A. Holmes,
Esq.'s judicial appointment. I appreciate the concern that
has been expressed about his nomination based upon his
writings and positions on affirmative action. In all honesty
I stand in a position that is contrary to the interpreted and
most likely actual personal stance of Mr. Holmes, yet my
relationship with him moved me to write and to express my
support for him.
I have known Mr. Holmes for many years and believe that he
does have a high regard for the views of those who maybe
different from his own. That in and of itself is enough for
me to believe that he would ``hear'' fairly. In addition, Mr.
Holmes has displayed a level of integrity in all his dealings
that I have been aware and has shown in our personal
conversation willingness to listen and respect differing
views. I trust Mr. Holmes and so in light of our differences
I support his nomination.
I do realize the responsibility that is upon me as a
Pastor, Community Leader and a concerned citizen. This is no
light matter for me, indeed it is with much prayer and
struggle that I searched out the right words to convey the
right tone to reinforce my message. As a member of the NAACP,
Urban League and many other organizations that fight for the
rights of minorities, I am moved to ask your continued
approval of this nomination.
Sincerely,
George E. Young, Sr.
Pastor.
____

June 19, 2006.

Re recommendation of Jerome A. Holmes, U.S. Court of Appeals
for the Tenth Circuit.

Hon. Arlen Specter,
U.S. Senator,
Washington, DC.
Dear Senator Specter: As Governor of the State of Oklahoma,
and as a former Chair of the State Senate Judiciary
Committee, I have had a lot of experience in the selection of
judges. In our modified Missouri system of appointment of
judges, the Governor plays a key role when judicial vacancies
occur. Not only does the Governor appoint members to the
Judicial Nominating Commission, but he or she also is
forwarded the final three names of judicial applicants for
gubernatorial selection. I take this responsibility very
seriously, and I have personally interviewed every single
candidate forwarded to me.
I have come to know and respect Mr. Jerome Holmes, a
nominee for the Tenth Circuit vacancy created by the
retirement of my friend, Judge Stephanie Seymour. Jerome is a
highly qualified candidate, a superb lawyer with a reputation
for fairness, ethics and integrity. Indeed, I recently
appointed his former supervisor, Judge Arlene Johnson, to our
court of last resort on criminal matters, the Oklahoma Court
of Criminal Appeals. When Arlene was Chief of the Criminal
Division of the U.S. Attorney's office in the Western
District of Oklahoma, Jerome was her chief deputy. Their
division was considered a model division of the U. S.
Attorney's office. Jerome handled this difficult task with
competence and honor, and he was part of the prosecution team
that brought charges against the perpetrators of the Oklahoma
City federal building bombing.
I have also come to know Jerome on a personal basis through
the Oklahoma Symposium, a sort of ``think tank'' gathering of
top Oklahomans that meets formally once a year, and
informally in small groups from time to time. It is an honor
to be invited to join the Symposium, and Jerome was among the
first to be invited for membership.
Jerome is uniquely qualified for this position. He served
as a law clerk for Federal District Judge Wayne Alley and
then for the then-Chief Judge of the Tenth Circuit Court of
Appeals, the honorable Judge William Holloway. Jerome then
practiced for several years in civil litigation before
devoting himself for eleven years to the U.S. Attorney's
Office in Oklahoma City. For several months, he has been
practicing at Crowe & Dunlevy, one of the largest and most
respected law firms in Oklahoma. In short, I do not think you
could have a candidate more highly qualified and regarded
than Jerome Holmes.
I hope you will see fit to appoint this remarkably talented
young man to this important position. I know of the Tenth
Circuit, as well, because my cousin, Judge Robert Henry, will
become the Chief Judge of that Circuit in 2008. I know he
shares my high regard for Jerome, as he has told me of
Jerome's excellent professional appearances before that
court.
I continue, Senator, to appreciate the very important work
that you do. Please do not

[[Page S8145]]

hesitate to contact me if I can be of service, or, of course,
if you should come to Oklahoma.
Sincerely,
Brad Henry,
Governor.
____

Ryan, Whaley & Coldiron,

Attorneys and Counselors at Law,

Oklahoma City, OK, June 21, 2006.
Re: nomination of Jerome A. Holmes to the Tenth Circuit.

Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Specter and Senator Leahy: I am writing in
support of the nomination of Jerome A. Holmes for the United
States Court of Appeals for the Tenth Circuit.
I am a lifelong Democrat. For six years I was fortunate to
work on the United States Senate staff of Senator David Boren
and the Senate Agriculture Committee. During this time I met
Senator Leahy and personally witnessed his leadership as a
committee chairman. I was the Democratic nominee for an
Oklahoma congressional race in 1994. I later became a federal
prosecutor and eventually served as the United States
Attorney for the Western District of Oklahoma, first through
appointment by Attorney General Janet Reno and then through
nomination by President Clinton.
I have known Jerome Holmes for over ten years through our
work together in the United States Attorney's Office and now
in private practice. I believe his intellect, experience and
character make him an excellent choice for a position on the
appellate court. I saw these qualities firsthand as Jerome
carried out his many responsibilities as a prosecutor. One of
the most important duties he performed was that of the
office's legal ethics and professional responsibility
counselor. Jerome acted ably in this capacity during a time
of heightened scrutiny for federal prosecutors following the
passage of the Hyde Act and the McDade Amendment. Since both
of you are former prosecutors, I trust that you can
appreciate the degree of confidence in Jerome's abilities and
integrity that were required in order to be given such an
assignment by me and other United States Attorneys.
Jerome's nomination has apparently triggered concern from
groups that have focused on his writings on affirmative
action. In this regard, I can offer three observations.
First, I have known Jerome to be open-minded and respectful
of different views. More importantly, I know Jerome to be
respectful of the role of the courts, as opposed to the role
of the advocates, and I believe this understanding to be
partly the result of his three years of service as a law
clerk for federal appellate and district judges. Finally, as
noted above, I know Jerome to be a person of unwavering
integrity. Therefore, when Jerome states under oath that he
will put his personal views aside and follow the law, I
believe he will do just that.
I hope these observations are helpful as you consider
Jerome's nomination, which I hope you will act upon
favorably. I respectfully request that this letter be made
part of the committee record regarding his nomination. If I
can be of further assistance or if you or your staff have any
questions, please do not hesitate to contact me.
Sincerely,
Daniel G. Webber, Jr.
____

Oklahoma Bar Association,

Oklahoma City, OK, July 21, 2006.
Re: confirmation of Jerome A. Holmes, Nominee for Judicial
Appointment to Tenth Circuit Court of Appeals.

Hon. James M. Inhofe,
Russell Center Office Building,
Washington, DC.
Dear Senator Inhofe: As president of the Oklahoma Bar
Association, I am writing in support of the nomination of
Jerome A. Holmes, Esquire to the United States Court of
Appeals for the Tenth Circuit.
I've had the pleasure of serving with Jerome for the last
2\1/2\ years, in various official capacities with the
Oklahoma Bar Association. I selected Jerome to serve as my
Vice President for this year. He has served in that capacity
with exceptional skill, talent and knowledge of a vast
breadth of issues.
I have enjoyed working with Jerome as I find him to be an
intelligent lawyer and an extremely thoughtful leader who
excels in everything that he does. I believe that Jerome
should be entitled to bipartisan support because he displays
the demeanor, work ethic and outstanding capacity to reach an
appropriate decision under our constitution. Jerome will be
an outstanding jurist who will follow the law and not his
personal views or beliefs.
Again, I appreciate your consideration of my support for
the confirmation of Jerome Holmes to the United States Court
of Appeals for the Tenth Circuit by the full Senate. Please
feel free to contact me if you have any questions regarding
his qualifications.
Very truly yours,
William R. Grimm,
President, Oklahoma Bar Association.
____

Resolution to the U.S. Senate

Whereas, Jerome A. Holmes exemplifies the highest standards
of the legal profession, has given unselfishly of his time
and talents to further the legal profession, has served as
Vice President and Govrenor of the Oklahoma Bar Association
and has held numerous other high positions within the
Association;
Whereas, Jerome A. Holmes has consistently demonstrated
that he possesses the demeanor, intelligence and legal skills
to serve in the highest office of his profession and the
public;
Whereas, Jerome A. Holmes has served his profession, his
community, his state, and his nation with courageous, devoted
and tireless service to insure that the rule of law prevails
and that there be liberty and justice for all;
Whereas, Jerome A, Holmes has received a nomination from
President George W. Bush to serve as a judge of the Tenth
Circuit Court of Appeals pending confirmation by the United
States Senate; .
Be it Resolved, on behalf of the Oklahoma Bar Association,
the Board of Governors unqualifiedly and wholeheartedly
supports the confirmation of Jerome A. Holmes to the position
of judge of the Tenth Circuit Court of Appeals;
Be it Further Resolved, the Board of Governors requests the
honorable members of the United States Senate for favorable
confirmation of Jerome A. Holmes.
In Witness Whereof, this Resolution is unanimously Adopted
by the Oklahoma Bar Association Board of Governors this 21st
day of July 2006.
William R. Grimm, President,
Oklahoma Bar Association.

Mr. COBURN. Mr. President, I want to take a few moments to discuss
the comments we just heard. I will go back to the litmus test.
My belief is there is no way Jerome Holmes could have given an answer
in response to questions that were asked by Senator Leahy that would
have met with Senator Leahy's approval. We had a hearing on Mr. Holmes.
The great concerns we have heard on the floor, nobody came to ask any
of those questions. No one showed up other than myself and two other
Members to hear Jerome Holmes' response, both in terms of his comments
and beliefs about affirmative action, but also about the beliefs he
has. This is a man who has experienced racial discrimination. This is a
Black man who rose to heights without the assistance of anyone else
other than his sheer will and great effort on his part and the
character instilled in him by his parents.
There are multiple allegations that have been raised. I will hold
back on answering those specifically with Mr. Holmes' responses.
I yield to the senior Senator from Utah 20 minutes. If he needs
additional time, I will be more than happy to yield that to him. Would
the Chair please notify us when we have 10 minutes remaining?
The ACTING PRESIDENT pro tempore. Yes.
The Senator from Utah.
Mr. HATCH. Mr. President, I thank my colleague and I appreciate his
leadership on the floor. This is an exceptional nominee for the court.
I rise to voice my strong support for the nomination of Jerome A.
Holmes of Oklahoma to be a judge on the U.S. Court of Appeals for the
Tenth Circuit. With this nomination, we see an all-too-familiar
pattern. Mr. Holmes is a highly qualified nominee, a man of integrity
and character who knows the proper role of a judge, someone who is
praised by those who know him and attacked by some who do not.
Let me review each element of this familiar pattern in turn.
First, Mr. Holmes is a highly qualified nominee. After receiving his
law degree from Georgetown University in 1988, where he was editor in
chief of the Georgetown Immigration Law Journal, Mr. Holmes returned to
Oklahoma and began an impressive legal career. He clerked first for
U.S. District Judge Wayne Alley of the Western District of Oklahoma,
and then for U.S. Circuit Judge William Holloway of the Tenth Circuit.
Both judges have since taken senior status, and I can only imagine how
proud they must be to see their former clerk now nominated to the
Federal bench himself. And in the case of Judge Holloway, I truly hope
that Mr. Holmes will soon have the privilege of calling his former boss
a colleague.
After 3 years of private practice with the highly regarded law firm
of Steptoe & Johnson, Mr. Holmes entered public service. While an
Assistant United States Attorney serving the Western District of
Oklahoma, Mr. Holmes prosecuted a wide range of cases and was that
office's anti-terrorism coordinator. No doubt among his most vivid

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memories from that time was his experience on the prosecution team
regarding the Oklahoma City bombing. Somehow, Mr. Holmes also completed
a master's degree in public administration from Harvard University's
Kennedy School of Government. Currently, after more than a decade as a
prosecutor, Mr. Holmes is back in private practice as a director of
Crowe & Dunlevy, a prominent law firm in Oklahoma City, where he chairs
the firm's diversity. committee. He has also served as Vice President
of the Oklahoma Bar Association. This is an exceptional man.
Second, Mr. Holmes is a man of integrity and character. We hear now
and then about the need for judges who are well-rounded individuals,
who are good people as well a good lawyers. Well, during his years in
private practice and public service, Mr. Holmes has also served his
community. In addition to chairing the Oklahoma City Rescue Mission,
Mr. Holmes has been a director of the Oklahoma Medical Research
Foundation and a trustee of the Oklahoma City National Memorial
Foundation.
Third, Mr. Holmes understands the proper role of judge in our system
of Government. He has testified under oath that he knows judges must
separate their personal views from what the law requires. He has
repeatedly affirmed his commitment to follow applicable Supreme Court
precedent in cases that will come before him. This means, as he put it
in answers to questions following his hearing, an even-handed
application of legal principles in all areas.
Fourth, Mr. Holmes is praised and supported by those who know him.
This includes Democrats in Oklahoma. Daniel Webber, appointed by
President Bill Clinton to be U.S. Attorney in Oklahoma, has written the
Judiciary Committee in support of Mr. Holmes' nomination. He has known
this nominee for more than a decade and urged confirmation based on Mr.
Holmes' intellect, experience, and character. Reaffirming that the
nominee before us today knows the proper role of a judge, Mr. Webber
wrote us that Mr. Holmes is ``respectful of the role of the courts. . .
. When Jerome states under oath that he will put his personal views
aside and follow the law, I believe he will do just that.''
Oklahoma Governor Brad Henry, a Democrat, also wrote the Judiciary
Committee to support this nomination. Governor Henry said that Mr.
Holmes 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.'' A superb lawyer with a reputation for fairness,
ethics, and integrity. It seems to me that is exactly the formula we
should consistently be looking for in nominees to the Federal bench.

So far, so good. The fifth element of this familiar pattern, however,
is that Mr. Holmes is being attacked and opposed by some who do not
know him. Mind you, they have not suggested that Mr. Holmes is not
qualified to sit on the Federal appellate bench. They have not disputed
his character or integrity. Nor have they offered anything to cast
doubt on what seems to be universal acclaim from those who know Mr.
Holmes and have worked with him. In yet another familiar element of
this pattern, Mr. Holmes' critics find fault not with his experience,
his qualifications, his integrity, or his character, but his politics.
In particular, the critics take issue with Mr. Holmes' opposition to
Government-imposed racial preference policies. Let me emphasize what I
mentioned a few minutes ago, that Mr. Holmes helped create and chairs
his law firm's diversity committee. In the private arena, he works to
recruit and retain qualified lawyers of various racial and ethnic
backgrounds. He also believes that race-based policies were once
necessary to address the effects of past discrimination. Mr. Holmes
would be the first African-American judge on the Tenth Circuit. At the
same time, like two-thirds of Americans, Mr. Holmes opposes current
programs that condition admission to public universities on race, not
to address past discrimination but to create future diversity.
My liberal friends can, of course, disagree with Mr. Holmes on this
issue. But by suggesting that his opinion on this issue somehow
disqualifies him from serving on the Federal bench, they are treading
on very dangerous ground. Mr. Holmes is hardly the first judicial
nominee to have taken a clearly defined stand on a controversial issue.
I could chronicle some of the more prominent examples, judges
overwhelmingly confirmed by this body. Are my liberal friends saying
that we should instead be looking to be judicial nominees individuals
who have no opinions on issues of the day, who have done nothing, said
nothing, and thought nothing? Or are they suggesting that if nominees
have thought about and have opinions on controversial issues, only
liberal opinions are acceptable?
The issue is not whether a nominee is liberal or conservative,
Democrat or Republican, but whether he is committed to basing his
judicial decisions on the law. The evidence from him and those who know
him is that Mr. Holmes will do just that, and there is not a shred of
evidence to the contrary.
Not only that, but Mr. Holmes' supporters--again, those who know him
best--also stress his willingness to listen and to respect those with
differing views. Oklahoma County Commissioner Jim Roth, another
Democrat, wrote the Judiciary Committee calling Mr. Holmes ``a
principled leader who demonstrates mutual respect for all people. In
particular, he is respectful of views that differ from his own and he
enjoys tremendous bipartisan support and respect.'' That is from a
Democrat. How can you ask for a better statement from anybody?
Specifically on the issue that has so captivated Mr. Holmes' critics,
Pastor George Young, Sr., who supports affirmative action, writes that
``Mr. Holmes has displayed a level of integrity in all his dealings
that I have been aware and has shown in out personal conversation
willingness to listen and respect differing views.''
Perhaps my liberal friends are taking out their litmus paper to judge
Mr. Holmes' personal views because they believe that is precisely what
should drive judicial decisions. Mr. President, I reject that notion
out of hand and I invite those who take such an ideological,
politicized view of what judges do to try and sell that to the American
people.
Mr. President, personal views or political positions are the wrong
standard for evaluating judicial nominees. It distorts the fundamental
difference between advocates and judges, between opinion and law. And
it misleads the American people about what judges do and the important
place they occupy in our system of Government. I am convinced that Mr.
Holmes understands far better than his critics that judges must be
neutral arbiters, that they must follow the law, that they must set
aside personal views or opinions. I am convinced that Mr. Holmes will
do just that on the Tenth Circuit.
Mr. President, we have been here before. Nominees of obvious
qualification and experience, unquestioned integrity and character, and
solid bipartisan support, are nonetheless attacked and maligned because
of their personal views or political opinions. It has happened before
and, sadly, I expect it will happen in the future. The proper standard,
however, looks at qualifications, integrity, and commitment to the
proper role of judges in our system of Government. Judged by this
proper standard, Mr. Holmes will be a fine member of the court he once
served as a law clerk.
Let me close with the words of one of the judges Mr. Holmes served as
a law clerk. Judge William Holloway was appointed to the Tenth Circuit
in 1968 by President Lyndon Johnson. He wrote the Judiciary Committee
that Mr. Holmes ``performed his work for our court as my clerk with
complete impartiality and compassion for the people whose cases were
before the court. I am convinced he will give extraordinarily fine
service as a fair minded and industrious judge.''
Excellence, fairness, integrity, impartiality, compassion, and a
willingness to listen. That is what the evidence shows, Mr. President.
Jerome Holmes is a fine lawyer and a good man. He will make a great
judge.
I yield the floor.
The PRESIDING OFFICER (Mr. Sununu). The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I believe under the agreement I have 15
minutes; am I correct?

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The PRESIDING OFFICER. There is no time agreement. The Senator is
recognized and may proceed.
Mr. COBURN addressed the Chair.
Mr. KENNEDY. Mr. President, I think I have the floor.
Mr. COBURN. Will the Senator yield for an inquiry of the Chair?
Mr. KENNEDY. Yes.
Mr. COBURN. Mr. President, it is my understanding that we are under a
unanimous consent agreement. There is a time agreement, and it is
limited on both sides.
The PRESIDING OFFICER. The Senator from Oklahoma is correct. There is
2 hours equally divided. We are operating under a time agreement, but
there is no specific consent to limit the Senator from Massachusetts to
15 minutes.
Mr. COBURN. Will the Chair advise the amount of time left on either
side? I thank the Senator for yielding.
The PRESIDING OFFICER. The majority has 32 minutes remaining and the
minority has 22 minutes remaining.
The Senator from Massachusetts is recognized.
Mr. KENNEDY. I thank the Chair.
Mr. President, the Senate's exercise of its advice and consent power
when it considers nominees to the Federal bench is one of our most
important constitutional responsibilities. We are conferring on men and
women the power to interpret and apply our laws for the rest of their
lives. It is the last opportunity any of us have to sit in judgment of
them.
Our task is not to evaluate a nominee based on politics but, rather,
to consider other important criteria. We start with the essential
elements of professional excellence and personal integrity, but we must
also evaluate the likelihood that nominees will be fair and openminded
judges who bring compassion and understanding of the history and
fundamental values of America to the bench.
In considering a nomination to our Federal courts of appeals, we must
exercise special care. The Supreme Court accepts few cases out of the
thousands of cases it is asked to hear every year. The Federal
appellate courts are almost always litigants' last hope for justice
from our legal system. For those who seek relief from race and sex
discrimination at work or at school, for criminal defendants who have
been wrongfully deprived of their liberty or sentenced to death, or for
those who seek to protect our liberties, the circuit courts of appeals
are almost always their last hope for justice.
The record of Jerome Holmes demonstrates that he is not a nominee we
can afford to entrust with the judicial power of the United States. His
professional qualifications are not in dispute, but he has taken
extreme public stances on issues that regularly come before our courts.
These stances suggest that he will not approach these issues with an
open mind or fairly apply the law in these areas.
Perhaps most troubling are Mr. Holmes' strong and repeated statements
denouncing affirmative action. Just last week, this body reauthorized
the Voting Rights Act, one of America's greatest achievements in the
effort to overcome centuries of racial oppression. During that debate,
numerous Senators had the occasion to revisit the legacy of racially
motivated violence, discrimination, and disenfranchisement that
oppressed so many in this country. We had the occasion to reflect on
the need for strong and complete remedies for those centuries of
discrimination that would eliminate it root and branch.
Affirmative action is an effective and necessary remedy that must be
available if we are to provide opportunity for all, by breaking down
persisting barriers and making it possible for all Americans to
demonstrate their abilities and fulfill their potential. Yet Mr. Holmes
has repeatedly denounced affirmative action as both immoral and
unlawful.
Shortly after the Supreme Court struck down the University of
Michigan's affirmative action program for undergraduates but upheld the
law school's program, Mr. Holmes wrote:

The court did not go far enough: Affirmative action is
still alive.

He lamented that the Court ``missed an opportunity to drive the final
nail in the coffin of affirmative action.'' He called affirmative
action a ``quota system'' and accused it of perpetuating a society in
which ``race unfortunately still matters.'' He referred to scholarships
for minority students as ``constitutionally dubious and morally
offensive.''
We know that race does still matter in our society, which is the very
reason lawful affirmative action programs are needed. They guarantee
opportunity for minority students who, because of discrimination and
its legacy, might otherwise never be able to excel. We all hope for the
day that individuals will not be denied opportunity because of race,
but until we reach that day, affirmative action programs are part of
the solution, not the problem.
Mr. Holmes' extreme statements make it impossible to believe that he
will approach affirmative action cases with an open mind. He says he
will fairly apply our Nation's affirmative action laws, which have
helped--and continue to help--women and racial minorities overcome
centuries of discrimination, but his bland assurances are far from
sufficient to overcome his record.
His views on our criminal justice system are also disturbing. He has
put on a set of ideological blinders to ignore the invidious racial
discrimination that persists in criminal trials and sentencing. When a
defense lawyer in Oklahoma had the courage to suggest that African
Americans accused of committing crimes against Whites in Oklahoma City
could not receive a fair trial, Mr. Holmes delivered a swift rebuke.
Not only did he dismiss the effect of racial bias, he also chastised
the defense lawyer for even raising the issue, contending that he had
undermined the public's confidence in the judicial system. The problem
of racial bias in juries is an important issue in the criminal justice
system that merits discussion and recognition that we should be seeking
effective remedies, not blaming the messenger.
By approving this nominee, the Senate would send a message that we
don't care about the racial disparities in our criminal justice system.
If we confirm an appellate judge who ignores the realities of such
disparities, we cannot expect the public--especially minorities--to
believe that they will get a fair day in court. The fact that Mr.
Holmes stated these views while serving as deputy criminal chief of a
U.S. attorney's office only reinforces my concern about his ability to
separate his extreme personal ideologies from his actions as a judge if
we confirm his nomination.
Mr. Holmes' aggressive support for the death penalty raises special
concern. He said that the statement society sends through the death
penalty ``is not materially diminished by the fact that . . . mistakes
are made'' in imposing the death penalty. Unlike Mr. Holmes, most death
penalty supporters appreciate the severity of a death sentence. It is
irreversible punishment, which means that we must do everything in our
power to reduce the possibility of mistakes. Many death penalty
advocates have supported expanded use of DNA testing and other tools to
avoid mistakes in capital punishment cases.
Taking an extreme position yet again, Mr. Holmes has no respect for
these concerns. He is more interested in the symbolism of the death
penalty than the fact that an individual life will end. Because the
Supreme Court hears so few death penalty cases, appellate courts often
have the final word on the life and death of criminal defendants. We
should not support the confirmation of a Federal judge who has so
little respect for this grave responsibility.
The Senate has supported the overwhelming majority of President
Bush's judicial nominees. I have voted for the confirmation of dozens
of judges with whom I have ideological differences. However, the
nomination of Jerome Holmes is different. I do not believe that he will
serve on the Federal bench with a fair and open mind. I, therefore,
cannot support the confirmation of Jerome Holmes to the Tenth Circuit,
and I urge the Senate to oppose his nomination.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, it is amazing the way things get twisted.
I want to read exactly what Jerome Holmes said in his comments about
racial bias. The Senator from Massachusetts just stated that he would
ignore

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reality. Here is what he said in his article.

One need not doubt the lingering effects of racism in our
society to reject the above claims. Harvard law professor
Randall Kennedy and other scholars remind us that racial
prejudice still exists in the jury box.

He didn't deny it. He said it did. You just heard the opposite of
that. What he said is: As an African American, I am among the first to
condemn it.
We did not hear any of that. And what was just said about what Jerome
Holmes wrote, he condemns it. He can't be trusted. That was what we
just heard. What you just heard was a litmus test that if he doesn't
agree down the line with those who have a completely different
political philosophy, he is unqualified. Here is a Black man who has
been discriminated against tons in his life. It makes no intuitive
sense that he would oppose a jury system that ferreted out racial
discrimination. So that is unfounded.
His comments on the death penalty, Judge Holmes said we should use
DNA but that should come through the legislature as direction, as a
directive of the legislative bodies in terms of creating parameters,
also, which you would say is to his credit because what he said is: I
recognize the limited role of the judiciary in how we make decisions.
We should be dependent in certain areas on directions from the
legislative body. In other words, what we rule on is the laws of this
country which the legislative body and the executive branch determine.
So all he is doing is deferring. It has nothing to do with whether DNA
should be used to protect the life of somebody wrongly convicted and
under threat of the death penalty.
The other quote we heard is it is impossible for him to have an open
mind because he disagrees with the Senator from Massachusetts on an
issue. Well, if we use that standard in this body, nothing would ever
happen. If we disagree, then we can't have an open mind, we can't
listen, we can't learn.
He won't come unbiased to the court. There is not one judge anywhere
in this country who does not have biases. The question is can they
separate their biases through the commitment of their oath of office to
say: Here is our function. Here is how we function. Here is how we
carry out our obligations.
Nobody meets the standard that the Senator from Massachusetts just
set up. There would be nobody with whom I might have a philosophical
difference that I could not raise that same example.
I am hopeful that the Members of this body will overwhelmingly
endorse Jerome Holmes, the first African American to be appointed to
the Tenth Circuit Court of Appeals. For the very reasons that Senator
Kennedy raised, Jerome Holmes disproves every one of those arguments.
It gives me great pleasure to yield to the senior Senator from
Oklahoma at this time and to thank him in the process and to also
recognize and thank the President for the nomination of Jerome Holmes.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, first, let me thank the junior Senator
from Oklahoma for the time he spent on the floor and the time he spent
defending this man, not that he should ever need any type of defense
against some of the accusations. I didn't realize that there is an
article referred to where he stated: There are other ways to get
minority students on college campuses besides handing out benefits
based solely on skin color.
I am proud of it. I am also proud of the fact that I have known
Jerome Holmes for some 5 years. Frankly, prior to this nomination, I
made recommendations to the President that he consider this man because
he is so incredibly qualified. We all agree he is a man of great
character and undeniably fit for the bench. He has connections with
both Oklahoma City and throughout Oklahoma, as well as the District of
Columbia, a family history that goes back.
He was one of the prominent figures in the Oklahoma City bombing that
took place 11 years ago. He was on the Oklahoma City bomb prosecution
team, and I believe it was his distinguished service as assistant U.S.
attorney that really began to set him apart in the legal field.
When asked about Mr. Holmes, most lawyers in Oklahoma begin their
compliments with his work as U.S. assistant attorney in some public
corruption cases in our State. He is someone who is willing to get in
there and criticize and open up things other people aren't, a great
characteristic and I think very important. But if I were to single out
another one, I would say his chairmanship of City Rescue Mission in
Oklahoma. This is their mission statement:

Serving the homeless both with help, hope, and healing in
the spirit of excellence, under the call of Christ.

I have certainly made my position known for quite some time
concerning him and how he limits his opinions to the facts, the
litigants, and law before him in any case. At a time when our Nation is
faced with the onslaught of judicial activism, he is a breath of fresh
air and I believe he is a man of character and principle; that he will
rule justly within the parameters of the law.
We have a resolution from the Oklahoma Bar Association. I have the
former president of the American Bar Association, the president-elect
of the local Federal bar association, I have the deans of all three of
the Oklahoma law schools praising him in the highest of terms.
Judge Holloway, currently sitting on the Tenth Circuit, noted Mr.
Holmes's compassion for people whose cases were before the court. John
Richter, the U.S. attorney for the Western District of Oklahoma, who
worked with Mr. Holmes, can speak from the prosecutor's perspective and
has said that Mr. Holmes is a man of integrity and character and
possesses a rock-solid work ethic.
Mike Turpen is someone with whom Senator Coburn is very familiar. I
don't believe in the years I have known Mike--and we have one of these
very honest relationships. He is a very partisan Democrat. I don't
think he has ever said anything nice about a Republican in his life
except Jerome Holmes. Dan Webber--we have all these Democrats who are
lined up without anyone dissenting from the idea that this guy is the
perfect nominee to be confirmed to the Tenth Circuit.
Judge Ralph Thompson--I was elected to the State legislature with
Judge Thompson. I considered him not just one of my closest personal
friends, but he is certainly a judge of distinction in Oklahoma and has
been for over 30 years. He ought to know a thing or two about judges.
He said:

Mr. Holmes is dedicated completely to the rule of law, the
proper role of the judiciary and to applying and interpreting
the law without regard to personal views on given issues.

I don't think there is any judge, any Federal judge in the history of
Oklahoma, who is more highly regarded than Judge Thompson. He also went
on to affirm Mr. Holmes's honesty and compassion.
I have a letter from Pastor George Young, a member of the NAACP and
the Urban League, who showed great character in voicing his support for
Mr. Holmes. He said: I trust Mr. Holmes, and so in light of our
differences I support his nomination. Now, he is one who doesn't agree
with everything, every statement that Jerome Holmes has made, and yet
he supports his nomination. He is for him. He is supporting him, head
of the NAACP and the Urban League.
I talked with various attorneys in the State, and they all have good
things to say about him. What I want to do, Mr. President, is submit
for the Record a list of letters, if this has not been done by my
colleague from Oklahoma.
It has been done, so it is already in the Record.
I thank my colleague for the time he spent in the Chamber. It happens
I am on the Armed Services Committee, and we have a critical meeting
that is going on even right now, so I haven't been able to be here, but
my absence from the floor is no indication that I don't hold this
person in the highest regard.
I worked hard in getting his name to the President, made that
recommendation early on, and I believe he will be confirmed and history
will reflect later on that he would be one of the greatest circuit
judges, and I certainly encourage my colleagues to support his
nomination to the Tenth Circuit.
I thank the Chair.
Mr. GRAHAM. Mr. President, I am very pleased to support the
nomination

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of Jerome Holmes to be a judge on the Tenth Circuit Court of Appeals.
Due to a scheduling conflict, I am unable to be here to vote for Mr.
Holmes, though I would have cast my vote to confirm him. In any event,
with his stellar qualifications, I doubt my vote will be needed.
President Bush made a great choice in nominating Mr. Holmes, and I look
forward to great things from him during his tenure on the Tenth
Circuit.
Mr. FEINGOLD. Mr. President, I will vote ``no'' on the nomination of
Jerome M. Holmes to be a judge on the U.S. Court of Appeals for the
Tenth Circuit, and I would like to take a minute to explain why I
reached this decision.
This is an important nomination and should receive close scrutiny.
Judges on the court of appeals have enormous influence on the law.
Whereas decisions of district courts--a position Mr. Holmes has never
held--are subject to appellate review, the decisions of the courts of
appeals are in almost all cases final, as the Supreme Court agrees to
hear only a very small percentage of the cases on which its views are
sought.
I believe in certain longstanding touchstones of the qualifications
needed for judicial nominees: legal competence, fairness, and the
ability to approach issues with an open mind. We sometimes short-hand
these qualities into a single phrase--a judicial temperament. In
evaluating a nominee's judicial temperament, our goal is to have an
evenhanded judiciary that hears the case before it and applies the law
fairly and uniformly, rather than letting strong personal convictions
override the facts or the law. We do this for a simple but fundamental
reason, namely, that we want a highly qualified and independent
judiciary that can command the respect and admiration of the American
people.
In the nomination of Mr. Holmes, we have a nominee to one of our
highest courts who has never served as a judge before. President Bush
originally nominated Mr. Holmes to be a Federal district judge in
Oklahoma earlier this year. Prior to this nomination, Mr. Holmes had
been an assistant U.S. attorney in Oklahoma and in private practice.
The Judiciary Committee was ready to consider that initial nomination--
to determine the merits of Mr. Holmes serving in his first judicial
position as a Federal district judge, a position with substantial
responsibility.
But for some reason Mr. Holmes' nomination was upgraded to the U.S.
Court of Appeals for the Tenth Circuit. Placing a nominee with no
judicial experience on an appellate court makes it hard to evaluate the
nominee's judicial temperament--his capacity to be fair and impartial.
With no judicial record to illuminate his views, we are left only
with Mr. Holmes' words as a window into his judicial temperament. Those
words are troubling and could lead a reasonable person to question his
objectivity and temperament. After the Supreme Court's nuanced
affirmative action ruling, Grutter v. Bollinger, Mr. Holmes derided the
Court for missing the ``opportunity to drive the final nail in the
coffin of affirmative action,'' and complained that ``[t]he court did
not go far enough: Affirmative action is still alive.'' He has referred
to scholarship programs targeted at minority children as ``morally
offensive.'' He has called African-Americans leaders, on various
occasions, ``ideologically bankrupt'' and suggested that their
opposition to school vouchers is insincere. In a letter to a
publication, Mr. Holmes flippantly dismissed a doctor's complaint that
his colleagues had ``negative reactions to his dreadlocks'' as
``naive.'' He has even gone so far as to claim that efforts to address
racial bias in jury selection actually harm the criminal justice
system.
Mr. Holmes has even dismissed problems with the administration of the
death penalty. In a 2004 speech, he said: ``The statement society is
sending--that certain conduct and the perpetrators of it deserve to die
is not materially diminished by the fact that in the implementation of
the death penalty mistakes are made.'' In response to my written
questions regarding whether executing an innocent person was an
acceptable mistake, Mr. Holmes responded by saying that ``the criminal
justice system should be administered in a manner that eliminates
mistakes--to the extent it is humanly possible--and yields accurate
outcomes.'' I do not think this is an acceptable answer to a fairly
simple question. His statements suggest a rather cavalier approach to a
very significant issue in contemporary criminal law.
Mr. Holmes' dismissive comments about affirmative action, school
vouchers, and the death penalty were not offhand remarks, or
impassioned advocacy on behalf of a client. Nonetheless, Mr. Holmes, of
course, urges us to set his earlier statements aside, and look to his
assurances of his future impartiality as a judge. But Mr. Holmes did
little to actually address the concerns of many members of the
Judiciary Committee. Rather than discuss his previous comments openly
and candidly--and take the opportunity to show why those comments might
not reflect his actual thinking--he provided stock and unconvincing
answers that he considers racism to be a ``negative influence'' in
society and that he would follow Supreme Court precedent.
Mr. Holmes' actions in connection with his membership in the Men's
Dinner Club of Oklahoma also suggest, rather than candor, a strategy of
simple image control. Mr. Holmes, having been a member of this club
that excludes women from membership, resigned from its membership on
February 2, 2006 just 2 weeks prior to his initial nomination to be a
district court judge. Mr. Holmes has defended this institution as, to
his knowledge, not ``practicing invidious discrimination.'' So what
accounts for his resignation? His explanation--that ``some might
perceive the Men's Dinner Club as an improper organization''--suggests
not a principled decision but a pure political and image calculation.
Clearly, Mr. Holmes wishes to make this nomination as palatable as
possible--and we should therefore take his assurances and stock answers
with a grain of salt.
Mr. President, I am saddened that President Bush has once again
proposed a judicial nomination that I cannot support, especially
because Mr. Holmes would be the first African American to serve on the
Tenth Circuit. But he has never served as a judge either on the Federal
or State level--and his statements on a broad range of topics suggest
concerns about his ability to provide impartial justice. And, by
failing to explain his statements and views with candor, he missed a
chance to show the Judiciary Committee that he has the deliberative and
impartial reasoning needed to serve on an appellate court. We want a
judiciary that the American people respect and admire as impartial.
With no judicial record to examine and a history of troubling
statements, Mr. Holmes has not shown that he will apply the law fairly.
I will therefore vote ``no.''
Mr. LEVIN. Mr. President, I will oppose the nomination of Jerome
Holmes to the Tenth Circuit Court of Appeals. Although I do not
question the integrity or qualifications of Mr. Holmes to be a Federal
circuit court judge, I do have serious questions about his ability to
be an impartial jurist.
While all judges have and are entitled to their personal views and
philosophies, a judge's decisions should not be controlled by an
inflexible ideology. When a nominee's personal views will determine or
dominate their judgements, such a nominee should not be put in a
lifetime position on the Federal bench.
I am concerned by statements that he has made indicating insufficient
sensitivity about the irreversible errors in the implementation of the
death penalty. For example, in a presentation given by Mr. Holmes, he
said that:

Like any human endeavor, there is a possibility of error .
. . But the statement society is sending--that certain
conduct and the perpetrators of it deserve to die--is not
materially diminished by the fact that in the implementation
of the death penalty mistakes are made.

Mr. Holmes' statement demonstrates a lack of understanding and concern
about the death penalty and the way that erroneous convictions
undermine a legal system.
Mr. Holmes has also sharply criticized affirmative action programs
both before and after the Supreme Court rulings and those hardline
views exhibited a lack of adequate respect for Supreme Court precedent.
Although he told members of the Judiciary Committee that he would
follow precedent,

[[Page S8150]]

he was vocal in his opposition to the Supreme Court's decision in
Grutter v. Bollinger, criticizing the Court for missing an ``important
opportunity to drive the final nail in the coffin of affirmative
action''.
Because Mr. Holmes' statements do not reflect the objectivity
necessary to serve in a lifetime appointment on the Federal bench, I
cannot vote to confirm his nomination.
Mr. DURBIN. Mr. President, Jerome Holmes has made some troubling
statements about affirmative action and the use of race in our society.
He has said:

[Affirmative action] policies necessarily divide us along
racial lines, and establish a spoils system based upon skin
color. . . .
[t]he [Supreme] court upheld the affirmative action policy
of the university's law school [in the 2003 Michigan case].
And in so doing, it missed an important opportunity to drive
the final nail in the coffin of affirmative action. . . .
[r]ace-based scholarship programs . . . [are]
constitutionally dubious and morally offensive racial
classifications. . . .
Al Sharpton, Jesse Jackson and their ilk have little to
offer me or other African-Americans in the 21st century. They
continue to peddle a misguided and dangerous message of
victimization. . . . As long as Jackson and company can
successfully portray African-Americans as victims to the
public at large, they'll be able to wring concessions out of
educational institutions like Harvard University and
corporate
America. . . .

Mr. Holmes didn't make just an occasional comment against affirmative
action. He has written over a dozen columns and op-ed pieces expressing
his views on race and affirmative action.
I understand and accept that people in good faith can disagree about
issues of race and the merits of affirmative action. It is a hard issue
for many people and it stirs passions on both sides. But Mr. Holmes'
statements are those of an ideological soldier. When it comes to
affirmative action, Mr. Holmes seems to have open hostility, not an
open mind.
In its letter of opposition to the Holmes nomination, the Leadership
Conference on Civil Rights wrote: ``Mr. Holmes has been a longstanding
and outspoken critic of affirmative action, and his views raise serious
questions about whether he would rule impartially and fairly in cases
involving affirmative action.''
I asked Mr. Holmes a simple question: Would you be willing to recuse
yourself in all cases involving affirmative action?
Section 455 of title 28 of the United States Code states: ``Any
justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.''
This seems like a simple standard, and I share the belief of the
Leadership Conference on Civil Rights that Mr. Holmes presents a clear
case of someone whose impartiality would be questioned when it comes to
affirmative action.
But Mr. Holmes doesn't see it that way. He said he would not recuse
himself in affirmative action cases. He said he would be able to put
his personal views aside and rule fairly on this issue. I doubt it. He
harbors such hostility to affirmative action and such disdain for those
who promote it--that I believe he will not have an open mind on this
issue.
We have seen judicial nominee after judicial nominee come before this
committee and pledge to put their personal views aside. But they rarely
do. Chief Justice John Roberts and Justice Samuel Alito said they would
put their personal views aside before they were confirmed, but they
have not done so.
Just in the last 2 months, Chief Justice Roberts and Justice Alito
have voted to limit the scope of the Voting Rights Act. They have voted
to strip whistleblower protections for prosecutors. They have voted to
restrict the right to privacy so that can police officers can enter a
home without knocking. They have voted to expand the death penalty and
to reduce the rights of the criminally accused. They have voted to roll
back 30 years of environmental protection under the Clean Water Act.
And in the case Hamdan v. Rumsfeld, Justice Alito embraced the view
taken by John Roberts in the appellate court that the President should
have unchecked power when it comes to using military commissions for
enemy combatants.
There are very real and serious consequences when it comes to
confirming judicial nominees.
I also think Mr. Holmes lacks good judgment because he didn't answer
several questions that I asked him during the nomination process.
For example, I asked him if be believed the Supreme Court cases of
Roe v. Wade, Brown v. Board of Education, and Miranda v. Arizona are
consistent with the notion of ``strict constructionism.'' Mr. Holmes
refused to answer. He said: ``it would be inappropriate for me to offer
my personal views as to whether these decisions are consistent with a
particular school of judicial decision-making.''
Well, tell that to Deborah Cook. She was a nominee to the U.S. Court
of Appeals for the Sixth Circuit a few years ago, and I asked her the
same question. She answered it. I appreciated her candor, and I voted
to confirm her.
I also asked Mr. Holmes to explain a statement he made about his
judicial philosophy. In his Senate questionnaire, he wrote: ``The
judiciary should not . . . issu[e] rulings that go beyond the
resolution of the dispute before the court to impose wide-ranging
obligations on societal groups.'' I asked Mr. Holmes to provide some
specific examples of what he meant by this. He refused to do so.
I do not believe Jerome Holmes deserves a lifetime position on the
second highest court in the country.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I ask unanimous consent that the vote on
the confirmation of Jerome Holmes be at 11:45 a.m. today with the
remaining time under the majority.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. COBURN. I thank the Chair. I will not take all the time. I want
to go back to what we said earlier this morning. If we are going to do
a litmus test on judges, if we are going to say a judge cannot have an
opinion outside of his role of a judge, we will destroy this country,
whether it is a conservative litmus test or a liberal litmus test.
The fact is, as to Jerome Holmes, there have been very few
appointments or nominees for this position at the appellate level that
compare to the qualifications of Mr. Holmes. He also has the life
experiences that will make him even more valuable on the court in terms
of his compassion. He has experienced discrimination as an African
male. He has risen to heights on his own, struggled--advanced degrees
from Harvard, law degree from Georgetown, cum laude from his alma
mater. There are very few people who will measure up to him.
Now, does he fit every litmus test? No, he doesn't fit every litmus
test that I might have for a judge, but that is not the basis under
which we should be considering judges.
He does, in fact, have the one key characteristic that is necessary,
and it has been attested to by the people who know him. It has been
attested to if you just heard him in the hearings. But of all those who
have come to the floor to oppose him, members of the Judiciary
Committee wouldn't even come and confront him with concern. They didn't
come to the hearing. They didn't hear what he had to say. They had
their minds made up.
The fact is, this is an excellent nomination. It is someone of whom
we in our country should be proud, who recognizes the diversity of our
country, and despite what the Senator from Massachusetts said, he can
be entrusted with the future of this country, our Constitution, and the
limited role of a judge in applying the law.
With that, Mr. President, I yield back the remainder of our time and
suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. 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

[[Page S8151]]

Jerome A. Holmes, of Oklahoma, to be United States Circuit Judge for
the Tenth Circuit?
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from South Carolina (Mr. Graham).
Mr. DURBIN. I announce that the Senator from California (Mrs.
Feinstein) and the Senator from Connecticut (Mr. Lieberman) are
necessarily absent.
The PRESIDING OFFICER (Mr. Burr). Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 67, nays 30, as follows:

[Rollcall Vote No. 213 Ex.]

YEAS--67

Alexander
Allard
Allen
Baucus
Bennett
Bingaman
Bond
Brownback
Bunning
Burns
Burr
Byrd
Carper
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Frist
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Jeffords
Johnson
Kyl
Landrieu
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Pryor
Roberts
Rockefeller
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner

NAYS--30

Akaka
Bayh
Biden
Boxer
Cantwell
Clinton
Dayton
Dodd
Durbin
Feingold
Harkin
Inouye
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Reed
Reid
Salazar
Sarbanes
Schumer
Stabenow
Wyden

NOT VOTING--3

Feinstein
Graham
Lieberman
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the President shall
be immediately notified of the Senate's action.

____________________