[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.
____________________