[Congressional Record Volume 152, Number 107 (Tuesday, September 5, 2006)]
[Senate]
[Pages S8944-S8948]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE CALENDAR

                                 ______
                                 

NOMINATION OF KIMBERLY ANN MOORE TO BE UNITED STATES CIRCUIT JUDGE FOR 
                          THE FEDERAL CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the hour of 4:30 
p.m. having arrived, the Senate will proceed to executive session to 
consider the nomination of Kimberly Ann Moore, of Virginia, which the 
clerk will report.
  The assistant legislative clerk read the nomination of Kimberly Ann 
Moore, of Virginia, to be United States Circuit Judge for the Federal 
Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
for debate equally divided.
  Mr. LEAHY. If the Senator will yield, after the Senator from 
Pennsylvania uses whatever period of time he wants, or yields to 
another, there is half an hour available to the Senator from Vermont; 
is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. SPECTER. Madam President, I urge my colleagues to confirm 
Professor Kimberly Ann Moore for the U.S. Court of Appeals for the 
Federal Circuit. Professor Moore has an outstanding academic 
background. She has a bachelor of science from Massachusetts Institute 
of Technology, 1990; a master of science from MIT, 1991; and a law 
degree from the Georgetown University Law Center, cum laude, 1994.
  She was an associate at the prestigious law firm of Kirkland & Ellis 
from 1994 to 1995. In 1995, Professor Moore became a law clerk to Judge 
Glen Archer, chief judge of the U.S. Court of Appeals for the Federal 
Circuit, serving from 1995 to 1997. Following her 2-year clerkship, she 
was an associate professor of law at Chicago-Kent College of Law, from 
1997 to 1999. She was an assistant professor of law at the University 
of Maryland School of Law, from 1999 to 2000 and an intellectual 
property litigation counsel for Morgan, Lewis & Bockius from 2000 to 
2003. From 2000-2004, she was an associate professor of law at George 
Mason University School of Law, before assuming her current position as 
Professor of Law at George Mason.
  Professor Moore is a board member of the Federal Circuit Bar 
Association; a board member of Patent Strategy & Management; and a 
board member of Intellectual Property Owners Education Foundation.
  I ask unanimous consent a full copy of her resume be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Kimberly Ann Moore


         United States Court of Appeals for the Federal Circuit

     Birth
       June 15, 1968, Baltimore, Maryland.
     Legal Residence
       Virginia.
     Education
       B.S., 1990, Massachusetts Institute of Technology.
       M.S., 1991, Massachusetts Institute of Technology.
       J.D., Cum Laude, 1994, Georgetown University Law Center.
     Employment
       Associate, Kirkland & Ellis, 1994-1995.
       Law Clerk, Judge Glenn L. Archer, Chief Judge of the U.S. 
     Court of Appeals for the Federal Circuit, 1995-1997.
       Assistant Professor of Law, Chicago-Kent College of Law, 
     1997-1999.
       Assistant Professor of Law, University of Maryland School 
     of Law, 1999-2000.
       Intellectual Property Litigation Counsel, Morgan, Lewis & 
     Bockius, 2000-2003.
       Associate Professor, George Mason University School of Law, 
     2000-2004.
       Professor of Law, George Mason University School of Law, 
     2004-present.
     Selected Activities
       Board Member, Federal Circuit Bar Association, 1999-
     present.
       Board Member, Patent Strategy & Management, 2001-present.
       Board Member, Intellectual Property Owners Education 
     Foundation, 2005-present.
       Board Member, CPR Institute for Dispute Resolution, 
     Judicial Subcommittee, 2003-present.
       Member, Georgetown Patent Institute Advisory Board.
       Member, Federalist Society.
       Member, American Bar Association.
       Member, American Intellectual Property Law Association.
       Member, Maryland Bar Association.

  Mr. SPECTER. She has the potential to make an outstanding judge. I 
urge my colleagues to vote to confirm.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, I concur with the senior Senator from 
Pennsylvania and will support the President's nominee in this case. I 
mention that at the outset to advise Senators on this side of the 
aisle.
  I also welcome the distinguished Senator back from his trip. It 
sounds like it was a substantial trip. I spent August in Vermont, a 
matter of no great sacrifice I must say, but nevertheless a very busy 
month.
  That made me think, Madam President, when we returned today from 
recess, we have less than 4 weeks remaining in this legislative 
session. With so little time remaining, I hope we can join to make real 
progress on the issues that have languished unresolved, the real issues 
that matter most to the American people. We spend a lot of time talking 
about issues that really do not matter to the American people and 
ignoring those issues that do.
  I urge the administration and the Republican leadership of the House 
and Senate to recognize the failures that have set us back as a nation. 
We are ready to work together to rectify those failures.
  Secretary Rumsfeld and Vice President Cheney struck the absolute 
wrong note when they recently labeled as ``appeasers'' the majority of 
Americans who recognize the disastrous war in Iraq as distracting them 
from winning the war on terror. Basically, they are saying anyone who 
questions their mistakes or points out their mistakes is nearly 
treasonous. My God, we have not heard talk like that since the days of 
King George. And that led to the revolution that made us a country.
  Again, this week, the Democratic leadership reached out to the 
President on this important issue. Rather than name-calling and seeking 
to divide Americans, rather than fostering fear and seeking to scare 
Americans into staying the disastrous course on which the Government 
remains headed, I urge Republican leaders to join to fight a smarter 
war on terror so we can make America safer.
  The cronyism, the incompetence that brought us the devastating 
aftermath of Hurricane Katrina cannot continue to define Government 
action. With more Americans in poverty, and extreme poverty, with more 
children without health care, we must do better. America can do better.
  With rising interest rates, rising mortgage rates, rising health care 
costs, rising insurance costs, we must do better for America's working 
families. America can do better.
  While corporate profits have taken a greater and greater share of our 
gross national product, wages are stagnant. Those in charge refuse to 
allow a long overdue raise to the minimum wage. We have just come 
through a summer of record-high gas prices. For many families, the 
threat of record-high home heating prices this winter is around the 
corner. Yet this will be another year in which this administration will 
not raise the minimum wage.
  As we approach the fifth anniversary of the attacks of September 11, 
2001, we are more aware of the painful failure of the Federal 
Government in neglecting to protect the Nation from those attacks. 
September 11 could have been avoided. Our Government dropped the ball. 
We did not protect the Nation. In these last 5 years, the 
administration's decision to send hundreds of thousands of Americans 
into Iraq, diverting attention and resources from the hunt for Osama 
bin Laden and the fight against al-Qaida--those loom largest among the 
many mistakes they have made which have created a more dangerous and 
threatening world.
  How sad, how discouraging, how needless, and how ominous it has been 
the past 5 years to see the national and international unity we had 
after those horrific attacks squandered by this administration's crass 
politics, their arrogant unilateralism, their misguided policies.
  It was around the time of the second anniversary of September 11 that 
Defense Secretary Rumsfeld put his finger

[[Page S8945]]

on a key question in the fight against terrorism, when he asked whether 
we were creating or eliminating more terrorists through our actions. 
There can now be little doubt about the honest answer to the question 
about the actions taken by this administration over the last 5 years. 
Does anyone doubt the impact of the occupation of Iraq, the images from 
Abu Ghraib, the international scandal at Guantanamo, and the war 
profiteering by huge defense contractors?
  Our own State Department, the Bush State Department, had to revise 
its reports on international terrorism in order to reflect a more 
honest assessment of the growing incidence of terrorism violence.
  Hamas and Hezbollah are winning elections, as are hardliners in Iran 
and elsewhere throughout the Middle East. We see American soldiers, 
brave American soldiers, trapped in the sectarian violence in Iraq. We 
see the situation every day in Afghanistan deteriorating.
  Meanwhile, we have lost precious time to confront growing threats 
from Iran and North Korea and the Middle East. They are more 
threatening than any time in recent memory.
  The administration resisted recent efforts to examine what led to the 
tragic events of September 11. The administration does not want the 
rubberstamp Congress to ask them what they did, why they allowed 
September 11 to happen in the first place.
  They resisted the creation of a Department of Homeland Security. They 
resisted the formation of the 9/11 Commission because they knew it 
would ask the question: Why did September 11 happen during the Bush 
administration? And they failed to implement many of the Commission's 
most important recommendations.
  Recently, President Bush held a press conference. He conceded what we 
all know: Iraq had ``nothing'' to do with the attack on the World Trade 
Center. Then he skipped quickly over the main reason we went into Iraq; 
namely, his erroneous contention that Iraq had weapons of mass 
destruction.
  A growing roster of conservative Republicans, from William Buckley 
on, is now acknowledging the failure of this administration's strategy 
in Iraq.
  Even as sectarian violence has continued to grow among Iraqis, as the 
losses it causes to America continue to mount, the administration 
tolerates no criticism or, worse yet, listens to no new perspectives on 
a deteriorating situation. They stubbornly insist: Stay on this 
uncorrected course for another 2\1/2\ years--this from a President who, 
when he first ran for office, told our country he was against nation 
building and against foreign military antagonists.
  It is difficult to come together and to move forward when the 
administration will not acknowledge that its historic miscalculations 
that led to the current situation. When they are not ignoring the past, 
they simply excuse it. The excuses for their failures are mockingly the 
same.
  In May 2002, the then-National Security Adviser, now Secretary of 
State, said:

       I don't think anybody could have predicted that these 
     people would take an airplane and slam it into the World 
     Trade Center . . . that they would try to use an airplane as 
     a missile.

  Of course, that was not true. The 9/11 Commission showed how the Bush 
administration had received many of the September 11 warnings that that 
was exactly what they were going to do.
  In September 2005, President Bush responded to the destruction of New 
Orleans by saying:

       I don't think anybody anticipated the breach of the levees.

  Of course, that was wrong. Of course, local papers and others had 
discussed this hurricane disaster scenario and others for years. It was 
predicted.
  And earlier this summer, Vice President Cheney said about Iraq:

       I don't think anybody anticipated the level of violence 
     that we've encountered.

  And a military spokesman said:

       I don't think anyone could have anticipated the sectarian 
     violence.

  Of course, neither of these statements was accurate since sectarian 
violence was a known risk. It was even a predicted risk from the 
outset. It is one of the reasons so many opposed going there in the 
first place.
  Just as this administration's justification for U.S. involvement in 
Iraq continued to shift from one to the next, its excuses ring hollow 
when they refuse to acknowledge their errors and instead claim 
infallibility. ``Just trust us'' long ago proved its failure as a Bush 
administration policy.
  Ours is the strongest military in the world, but there are limits to 
military power. That military power and resources must never be 
squandered. Many people who have actively served in the military knew 
that. The President's father knew that. General Powell knew that. 
President Eisenhower, the military hero of World War II, a Republican 
President, knew that.
  Unfortunately, this administration, thousands of lives later, 
hundreds of billions of dollars later, is just beginning to learn it in 
what has proven to be a disaster of historic proportions.
  Imagine how different our situation would be today if we had not 
shifted our lead forces from Afghanistan to Iraq at the critical moment 
when we had Osama bin Laden cornered, when we were about to find him. 
What if the President had done what we unanimously asked him to do, go 
get Osama bin Laden, the man who engineered September 11. We had him on 
the run. We let him go, and we went into a futile war in Iraq.
  In the years since then, the Iraq war has stretched our military to 
the breaking point. It has sapped hundreds of millions of dollars and 
preoccupied our attention. The White House has even disbanded the 
intelligence unit that for a year was dedicated to tracking down Osama 
bin Laden. All those nations that were on our side after September 11, 
2001, now do not support us.
  What have we done? A diversion to Iraq has only succeeded in creating 
a new breeding ground for terrorists and in emboldening the rogue 
states to harbor and supply them. Starting this unnecessary war in Iraq 
did not make us more secure, it has made us less secure. And worse yet, 
the Bush administration allowed Osama bin Laden to escape.

  We need to adjust our course in order to effectively confront the 
threat of terrorism. We do not need excuses and name calling. We need 
honesty and determination. We need not just conventional military might 
but better intelligence, stronger alliances, repaired alliances, and 
better information sharing. We need to use our resources for homeland 
security, to protect our ports, our planes, our industrial plants, and 
our vital resources.
  Let us function as a constitutional democracy and act within a moral 
framework and legitimate legal rules. Let us be that democratic model 
to the world that America often has been and should be today. Let us 
show the strength and resolve of a free people, not a fearful people. 
Let us set a new direction to counterterrorism on our own terms, with 
American skill and with American values.
  This summer we expressed our gratitude to British authorities for 
disrupting a plot that reportedly endangered the citizens of both our 
countries. That episode and the fifth anniversary, next week, of the 
attacks of 
9/11 are reminders there is little margin for error in countering 
terrorism.
  We need to refocus our attention and resources from the divisions 
that plague Iraq to eliminating the misdirection and mismanagement that 
still diverts us from an effective international strategy to protect 
the American people from terrorism. We need to be smarter and stronger 
to make America safer. We can do better. America can do better.
  For almost 5 years since the Government failed to protect us from 9/
11, Bush administration officials in charge of security have been 
saying it is not a question of whether al-Qaida will attack us again 
but when. We need to do better. We need to do better. We should look at 
the mistakes that allowed 9/11 to happen. We should look at the 
colossal mistake that allowed Osama bin Laden to escape. We as America 
need to do better.
  Mr. President, how much time remains to the Senator from Vermont?
  The PRESIDING OFFICER (Mr. Alexander). Fourteen minutes.
  Mr. LEAHY. Mr. President, I do not see others on the floor seeking 
recognition, so let me continue.
  The full agenda before us, as we enter the final weeks of this 
legislative session, reflects how little this Republican

[[Page S8946]]

leadership has accomplished, even when it has control of the White 
House, a Republican President, rubberstamp Republican leadership in 
both the House of Representatives and the Senate.
  We have had a steady course of misguided priorities, including 
weeks--weeks--spent on constitutional amendments designed to restrict 
Americans' rights and the misuse of Congress's time and authority to 
interfere in court battles over the medical treatment of Terri Schiavo. 
These distractions have done nothing to help our country but instead 
cost Americans progress on real issues that matter most.
  These failures to focus on our real priorities have left America less 
secure. I look forward to a representative Congress that focuses on the 
Nation's real priorities. For example, the Republican-controlled 
Congress has yet to enact a Federal budget; this notwithstanding that 
the law required them to do it by April 15 of this year. The Republican 
leadership of the House and Senate decided to ignore the law and not 
pass one.
  We have passed but one appropriations bill, and we are required by 
law to pass 13. We have yet to reconcile and enact lobbying reform and 
ethics legislation. We have yet to deal with the skyrocketing cost of 
gasoline and health care. We have yet to reconcile and enact a 
bipartisan and comprehensive immigration reform bill. And the press 
reports today that the Republican leadership has decided they will not 
do that. And for the second year in a row, the Republican-led Senate 
will not even take up the annual intelligence authorization bill so we 
could vote up or down, even though they have a majority in their own 
party here.
  As we commemorated the 1-year anniversary of Hurricane Katrina last 
week, we were reminded that the situation in the gulf coast remains a 
tragedy with serious human consequences. We need to commit ourselves 
and our resources to helping our fellow citizens who are still in need 
after the appalling lack of responsiveness by this administration. We 
need to provide the assistance to that region of our country where 
rubble remains a fixture of the landscape 1 year later. We are spending 
tens of millions--hundreds of millions--storing trailers that will 
never be used. Some contractors have made billions, but people remain 
homeless. This is our Department of Homeland Security that is supposed 
to be able to react at a moment's notice if we have a danger. Here, 
even though they were given days of warning, they did not react. And 
when they did, it was one fumble after another, while the 
administration gave statements saying: Everything is under control. It 
reminds me of the President standing on the aircraft carrier saying: 
Mission accomplished.
  But not just the residents of the Gulf Coast who cannot return to 
homes or return to jobs, all Americans have to prepare for the threat 
of an avian flu pandemic so we do not see the repeat of last winter, 
when the Government was unprepared for a typical winter flu season. Mr. 
President, throughout your lifetime and my lifetime, every single 
year--every single year--we have had a flu season. And last year the 
administration acted surprised that we had a flu season. We should take 
action to preserve and improve rather than pollute the environment. 
Protecting our environment has become a pressing issue that has public 
safety and serious health consequences for all Americans, today and 
tomorrow. That demands immediate attention.
  We cannot ignore the destruction already wrought by the 
administration's ill-advised, head-in-the-sand policies. We have to 
provide resources that our returning veterans need at home. We spend 
hundreds of millions of dollars for health care facilities in Iraq that 
will never be used. Yet we are cutting back on health care facilities 
in America that our veterans need. America can do better. We spend 
hundreds of millions of dollars, ostensibly, to build schools in Iraq 
that will never be used, and our schools in America are falling apart 
without money for them. We can spend hundreds of millions of dollars 
for law enforcement in Iraq, law enforcement that has proven 
particularly ineffective, and, at the same time, we are cutting 
millions of dollars for law enforcement in America, while our crime 
rates skyrocket. America can do better.

  The Senate can make progress, but it has to work together. Today, we 
consider the nomination of Kimberly Ann Moore for a lifetime 
appointment to the Court of Appeals for the Federal Circuit. In the 
weeks before the recess, we confirmed several nominees to the Nation's 
important circuit courts.
  Working together, the Senate confirmed two circuit nominees and two 
Federal trial court nominees in a matter of minutes in one afternoon. 
That, I might point out, is the kind of progress we can make when the 
President nominates qualified, consensus nominees.
  When she is confirmed, Ms. Moore will be the 7th circuit court 
nominee and the 30th judge overall confirmed this year. Compare this 
with those left unconfirmed in the 1996 congressional session, when 
Republicans controlled the Senate and they stalled the nominations of 
President Clinton. And in that year, Republicans would not confirm a 
single appellate court judge--not one. Here, today, we will have our 
seventh appellate court judge. I think of the 61--61--judges of 
President Clinton who were pocket filibustered by a Republican-
controlled Senate.
  I think of the irony that in the 17 months of President Bush's term 
in office when the Democrats controlled the Senate, we actually 
confirmed President Bush's judges faster than has been done under a 
Republican-controlled Senate. You would not know that from the speeches 
that are made.
  But today is a day to congratulate Ms. Moore on her confirmation. I 
hope she will be the kind of judge who will apply the law fairly and 
protect the rights of all litigants appearing in her courtroom. There 
are some superb people on that court. I think of such people as Judge 
Richard Linn. He should be a model for her as to the kind of judge this 
Nation deserves. He is one of the more senior members of that court. 
That is the kind of person I hope she will emulate.
  Mr. President, how much time remains to the Senator from Vermont?
  The PRESIDING OFFICER. Six minutes.
  Mr. LEAHY. Mr. President, of course, again, I will yield the floor if 
somebody else seeks time.
  I do not mean this in an unfair way because the distinguished 
Presiding Officer, of course, is not allowed to speak. I commend him. 
He comes from a wonderful State. It has been my privilege to visit 
there. I suspect it is a lot like Vermont. You have a chance to go into 
these small towns and cities, to go to county fairs and meet people. I 
have known the Presiding Officer to be a very accessible person when he 
was a Governor, when he was a member of the Cabinet, and now as a 
Senator. I try to do the same thing in my own State.
  During this past month, I have gone all over the State of Vermont. I 
have talked to people. I have attended funerals of brave soldiers 
killed in Iraq from Vermont. Vermont has lost more soldiers per capita 
than any other State in the country. And it is interesting, in a small 
State such as ours, as to the people you see at these funerals, 
everybody knows everybody else. I walk out and I see people whom I went 
to grade school with or people who knew my parents or I knew them or 
their families. We are there, and the other Members of the 
congressional delegation, the Governor, and nobody goes by a title. Our 
adjutant general is usually referred to as Mike. I am called Pat. There 
is Jim and Bernie and so on.
  We're a very proud State. We're a very patriotic State. We're a very 
honest State. We're the 14th State in the Nation, and we have answered 
the call. People wonder if maybe the call has been distorted this time. 
They wonder what this war does for our security. As I said earlier, I 
believe it has made us less secure as a nation, not more secure. They 
wonder where the failures were in Government that allowed 9/11 to 
happen in the first place. And, of course, as more information has come 
out, it could have been avoided, should have been avoided, should have 
been avoided. And they wonder if the lessons have been learned about 
that.
  They see Homeland Security that should be able to respond to any 
emergency, even that on a second's notice, and yet they see that it 
failed to respond to Katrina there was all kinds of

[[Page S8947]]

notice. They see Republicans and Democrats joined together saying: Go 
get Osama bin Laden. And the administration does not get Osama bin 
Laden. Instead, they divert those forces to go into Iraq in a war we 
did not need and one that has made us less secure. They even disbanded 
the special intelligence unit that has been tracking Osama bin Laden.
  But worse yet--and I heard this from Republicans and Democrats alike 
in my State--when the Secretary of Defense and others in the 
administration say if you raise questions, if you point out their 
mistakes, somehow you are aiding the enemy, however defined, that you 
are not being patriotic. I am reminded to paraphrase Mark Twain. He 
said: Love your country. Question your Government.
  A lot of people in my State--Republicans and Democrats--say there is 
a great deal to question today.
  I hope they will continue to do so. I hope they will never fail to do 
so. I hope that those people who have the audacity in America--the 
freest democracy on Earth--that those leaders in our Government who 
have the audacity to question the patriotism of Americans who question 
their mistakes will themselves be quiet and leave--leave the stage.
  I yield the floor 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. THOMAS. 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. WARNER. Mr. President, I support the President's nomination of 
Kimberly Ann Moore of Falls Church, VA, to be a U.S. Circuit Court 
Judge for the Federal Circuit. I was pleased, along with Senator Allen, 
to introduce Ms. Moore to the Judiciary Committee on June 28, 2006, and 
it is my privilege to speak again on her behalf.
  All of us recognize the importance of the position to which President 
Bush has nominated Ms. Moore. The U.S. Court of Appeals for the Federal 
Circuit stands as one of the 13 Federal Circuit Courts of Appeals that 
operate just under the U.S. Supreme Court. The Federal Circuit, which 
consists of 12 judges, is a unique court in that it has nationwide 
jurisdiction in a variety of subject areas, including international 
trade, government contracts, patents, trademarks, certain money claims 
against the U.S. Government, and veterans' benefits cases.
  Given the court's highly technical jurisdiction, there is no doubt 
that serving on the U.S. Court of Appeals for the Federal Circuit is a 
challenging task. In my view, based on Ms. Moore's educational 
background and her legal and technical expertise, she is clearly up to 
the task.
  Ms. Moore received her undergraduate degree in 1990 in electrical 
engineering from the prestigious Massachusetts Institute of Technology. 
A year later, she earned her masters of science and earned an 
impressive grade point average of 4.8 out of a 5-point scale. The 
nominee then went on to graduate cum laude from Georgetown University 
Law Center in 1994.
  Subsequent to graduation, Ms. Moore entered private practice where 
she worked as an associate at the well- respected law firm of Kirkland 
& Ellis. While at the firm, Ms. Moore specialized in intellectual 
property litigation.
  In 1995, the nominee left private practice to serve as a law clerk 
for the Honorable Glenn L. Archer, Jr., then-chief judge of the U.S. 
Court of Appeals for the Federal Circuit. Ms. Moore served a 2-year 
clerkship on the court.
  After her clerkship, the nominee joined the faculty at the Chicago-
Kent College of Law and, later the University of Maryland School of 
Law. At both law schools, Ms. Moore taught patent and trademark law. 
Beginning in 2000, Ms. Moore spent 3 years as an intellectual property 
litigation counsel at the firm of Morgan, Lewis & Bockius in Washington 
DC. At the same time, however, she still managed to work in academia, 
teaching law as an associate professor at the George Mason University 
School of Law. In 2004, Ms. Moore became a full professor of law at 
George Mason University where she teaches intellectual property law.
  It is impressive to note that throughout her legal career the nominee 
has written and delivered over 60 published articles, books, and 
speeches, mostly in the realm of intellectual property law. Moreover, 
Ms. Moore has earned accolades from the National Law Journal, which 
recently selected her as one of the 100 most influential lawyers in 
America.
  In my view, Ms. Moore is obviously very well qualified to serve as a 
judge on this prestigious court. I look forward to the Senate 
confirming this fine nominee overwhelmingly.
  Mr. ALLEN. Mr. President, I am pleased today to urge my colleagues to 
support the confirmation of Kimberly Moore to be a circuit judge on the 
U.S. Court of Appeals for the Federal Circuit.
  Kimberly Moore is a Falls Church, VA resident and a full tenured law 
professor at George Mason University.
  Among other cases, the Federal Circuit hears all patent appeals from 
the district courts and the U.S. Patent and Trademark Office. Kimberly 
Moore is uniquely qualified to serve on this distinguished court.
  First, Ms. Moore has a strong technical background with two degrees 
from the Massachusetts Institute of Technology, a bachelor of science 
in electrical engineering, and a master of science and work experience 
as an engineer with the Naval Surface Warfare Center.
  Also, Ms. Moore has a great deal of experience with the Federal 
Circuit itself. She is on the board of governors of the Federal Circuit 
Bar Association, has been editor-in-chief of the Federal Circuit Bar 
Journal for 8 years, and has been selected as a mediator in the Federal 
Circuit's Pilot Appellate Mediation Program.
  As a professor, Kimberly Moore has taught courses in patent law, 
patent litigation, trademark law, and Federal circuit practice. In 
fact, she coauthored the casebook ``Patent Litigation & Strategy,'' 
with the current chief judge of the Federal Circuit, Paul Michel, and a 
prominent practitioner, Raphael Lupo. Kimberly Moore has written more 
than a dozen law review articles on patent law and litigation and 
spoken at more than 40 conferences on patent topics.
  As a lawyer, Kimberly Moore has consulted with firms on patent cases 
and appeals to the Federal Circuit. She has also served as an expert 
witness in dozens of patent cases. In fact, just this month, Kimberly 
Moore was named one of the 100 most influential lawyers in America by 
the National Law Journal.
  I am pleased that President Bush has chosen to nominate someone with 
such a strong background in patent law to the Federal Circuit. Kimberly 
Moore will be an excellent addition to the court.
  I strongly support the confirmation of Ms. Kimberly Moore to be 
circuit judge of the U.S. Court of Appeals for the Federal Circuit and 
urge my colleagues to support this confirmation.
  Mr. SANTORUM. Mr. President, I am happy to see that we are scheduled 
to confirm today the nomination of Kimberly Ann Moore, of Virginia, to 
be U.S. Circuit Judge for the Federal Circuit. It is about time that we 
get back to confirming judges, and I am glad to see that our leader is 
putting this issue back on the Senate's agenda.
  It is of utmost importance that the Senate continue to confirm 
President Bush's judicial nominees. Just last month, we saw what can 
happen when an ideologically driven activist judge attempts to create 
national security policy. Judge Anna Diggs Taylor, a Federal district 
judge in Michigan appointed by President Carter in 1979, ruled that the 
Terrorist Surveillance Program was unconstitutional. This program, 
administered by the National Security Agency, has been a critical 
component in ensuring the safety of millions of Americans. Despite 
that, Judge Diggs Taylor ruled that the program, which the Government 
only uses to intercept international telephone and internet 
communications, violates the first and fourth amendments to the 
Constitution, the Administrative Procedures Act, and the Separation of 
Powers doctrine, in other words the veritable legal kitchen sink.
  While some on the other side of the aisle have rejoiced in this 
decision, this opinion has been attacked from both ends of the 
political spectrum. The Washington Post, in an editorial on August 18, 
noted that the decision is neither careful nor scholarly, and it is

[[Page S8948]]

hard-hitting only in the sense that a bludgeon is hard-hitting. The 
angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt 
grab headlines. But as a piece of judicial work--that is, as a guide to 
what the law requires and how it either restrains or permits the NSA's 
program--her opinion will not be helpful.
  Legal scholars have also criticized Judge Diggs Taylor's opinion. Let 
me give you just a few of these criticisms. David B. Rivkin, a former 
Justice Department official in Reagan's and George H.W. Bush's 
administrations, noted in a New York Times op-ed on August 18 that 
``[i]t is an appallingly bad opinion, both from a philosophical and 
technical perspective, manifesting strong bias.''
  Harvard Law Professor Laurence Tribe has written ``[i]t's altogether 
too easy to make disparaging remarks about the quality of the Taylor 
opinion, which seems almost to have been written more to poke a finger 
in the President's eye than to please the legal commentariat or even, 
alas, to impress an appellate panel . . . .''
  Howard Bashman, an appellate attorney and editor of the How Appealing 
legal blog, wrote in the New York Times on August 19 that ``[i]t does 
appear that folks on all sides of the spectrum, both those who support 
it and those who oppose it, say the decision is not strongly grounded 
in legal authority.''
  UCLA Law Professor Eugene Volokh wrote on his widely read blog: ``the 
judge's opinion . . . seems not just ill-reasoned, but rhetorically 
ill-conceived. . . . [B]y writing an opinion that was too much feeling 
and too little careful argument, the judge in this case made it less 
likely that the legal approach she feels so strongly about will 
ultimately become law.''
  In contrast to Judge Anna Diggs Taylor, both of President Bush's 
nominees to the Supreme Court, Justices Roberts and Alito, understand 
that it is not the role of the judicial branch to make policy. During 
his confirmation hearings last year, Supreme Court Chief Justice John 
Roberts said, ``I don't think you want judges who will decide cases 
before them under the law on what they think is good, simply good 
policy for America.'' He also noted, ``[T]he Court has to appreciate 
that the reason they have that authority is because they're 
interpreting the law, they're not making policy, and to the extent they 
go beyond their confined limits and make policy or execute the law, 
they lose their legitimacy, and I think that calls into question the 
authority they will need when it's necessary to act in the face of 
unconstitutional action.''
  Similarly, Justice Samuel Alito remarked during his confirmation 
hearing that ``results-oriented jurisprudence is never justified 
because it is not our job to try to produce particular results. We are 
not policy makers and we shouldn't be implementing any sort of policy 
agenda or policy preferences that we have.''
  Yes, Justices Roberts and Alito have it right. It is not the role of 
a judge to seek to replace the legislature, or the President, State 
legislatures, and the Governors, township supervisors, county councils 
with his or her own views. It is the role of a judge to apply the law 
and to do justice based on the facts in solving the dispute that has 
been presented.
  A court is not a place for zealous advocates to impose their will 
upon the American public. It is not a place for people who believe 
their views as judges are superior to the views of the democratically 
elected officials in this country--better put, that their views are 
better than the people's views because we are, in fact, accountable to 
the people we represent. It is and should continue to be a place for 
those public servants who seek to do justice under the law and facts of 
each case and a place to interpret the law, rather than make law.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Will the Senate advise and consent to the nomination of Kimberly Ann 
Moore, of Virginia, to be United States Circuit Judge for the Federal 
Circuit?
  Mr. THOMAS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Florida (Mr. Martinez) and the Senator from Pennsylvania 
(Mr. Santorum).
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from Hawaii (Mr. Inouye), the Senator from New Jersey (Mr. 
Lautenberg), the Senator from Connecticut (Mr. Lieberman), the Senator 
from New Jersey (Mr. Menendez), and the Senator from Illinois (Mr. 
Obama) are necessarily absent.
  The PRESIDING OFFICER (Mr. Chambliss). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 92, nays 0, as follows:

                      [Rollcall Vote No. 231 Ex.]

                                YEAS--92

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

                             NOT VOTING--8

     Biden
     Inouye
     Lautenberg
     Lieberman
     Martinez
     Menendez
     Obama
     Santorum
  The nomination was confirmed.

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