[Congressional Record Volume 153, Number 108 (Monday, July 9, 2007)]
[Senate]
[Pages S8781-S8785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Executive Privilege

  Mr. SPECTER. Madam President, I wish to make a comment or two on the 
subject broached by the distinguished chairman of the committee on the 
current issue with the challenge on executive privilege where letters 
were received today from the White House Counsel indicating that 
executive privilege would be asserted. It is my hope that we will yet 
be able to resolve this controversy because of the importance of 
getting the information which the Judiciary Committee has sought in its 
oversight capacity.
  We are dealing with a Department of Justice which I think, fairly 
stated, is dysfunctional. We have seen the Attorney General of the 
United States come before the Judiciary Committee and say he was not 
involved in discussions, not involved in deliberations, and then was 
contradicted by three of his top deputies, contradicted by documentary 
evidence in the e-mails.
  I think it is generally conceded that the President of the United 
States has the authority to remove U.S. attorneys for no reason, just 
as President Clinton did when he took office in 1993, but you cannot 
remove a U.S. attorney for a bad reason.
  There have been questions raised as to the request for the 
resignation from the U.S. attorney from San Diego, that she perhaps was 
hot on the trail of confederates of former Congressman Duke Cunningham, 
who is serving 8 years in jail. I do not know whether that is true. We 
have yet not had an explanation from the Department of Justice as to 
why her resignation was requested.
  Similarly, a cloud has existed over the reasons for the requested 
resignation for the U.S. attorney from New Mexico, with some 
suggestions that he was asked to resign because he would not bring 
prosecutions for vote fraud when he thought there was no basis, and 
some of us thought there was a basis. That has not yet been explained, 
and the request for resignations generally has not been explained.
  The Department of Justice is second only to the Department of Defense 
in importance to the United States. The Department of Justice has the 
responsibility for investigating terrorism, has the responsibility for 
investigating and prosecuting drug dealers in international cartels, 
the responsibility for investigating and prosecuting organized crime 
and violent crime. Yet it is pretty hard to make a more conclusive 
description than to say that the Department of Justice is 
dysfunctional, and the Attorney General insists on

[[Page S8782]]

staying. I think, as to his own decision, it is a matter for him 
personally. I am not going to tell him what to do, nor am I going to 
make a recommendation to the President. Under separation of powers, it 
is the President's call. I don't want the President to tell me how to 
conduct my office in the Senate and I am not going to impede upon his 
executive authority, but I do believe that the inquiry which the 
Judiciary Committee is conducting might produce facts, if we get to the 
bottom of things, find out what they are, which would lead us to a new 
Attorney General, which I think is very much in the national interest.
  So I am hopeful we can yet avoid the confrontation. I think, 
candidly, there is a lot of posturing on both sides. I don't think it 
is realistic to seek a contempt citation brought against the 
President--that is newspaper talk--contempt citation brought against 
anybody in the executive branch, because there are arguments on both 
sides of this issue. I hope we can work it out so that we don't test 
the good faith of the executive branch in asserting privilege or the 
good faith of the legislative branch, the House of Representatives 
Judiciary Committee and the Senate Judiciary Committee, in seeking 
facts as part of our oversight responsibility. I hope we can work it 
out.
  I said a long while ago I would be prepared to accept the President's 
terms, with only one exception, and that was the importance of having a 
transcript as to what happens. The President made an offer on national 
television months ago saying he would allow White House personnel to 
come in and be informally questioned, but he did not want to have them 
under oath, and I would prefer to see them under oath. But I would give 
on that issue, because what they say is subject to a criminal 
prosecution with a 5-year penalty, the same as a perjury conviction for 
a false official statement under 18 U.S. Code 1001.
  Mr. LEAHY. Will the distinguished Senator yield for a question on 
that point?
  Mr. SPECTER. I yield.
  Mr. LEAHY. Would the distinguished Senator accept the offer of the 
President, if the rejoinder of the President was if we did it the way 
you describe--transcript, knowing that the criminal code applies--but 
once you have done that, there would be no followup? Even if you were 
to find something out during that meeting, there would be no followup; 
there would be a promise of no subpoenas, there would be no further 
proceedings?
  Mr. SPECTER. I will be pleased to respond to that relevant inquiry. 
Senator Leahy and I have discussed this before. We have discussed just 
about everything, because we do things on a joint basis--about as pure 
as Ivory Snow, 99.4. We have some disagreements, but we try to work 
them out on a bipartisan basis because we think it is the right way to 
approach it.
  The Senator from Vermont has said he thinks we would be barred from a 
followup, and I don't know whether that is part of the offer which the 
President has made, but we can get it clarified further. I do not think 
we could make the commitment not to pursue a subpoena at a later time 
if we felt the informal interviews were insufficient. I don't think we 
can give up our authority in that process, and if we could, I wouldn't 
agree to that because I don't know what the informal interviews are 
going to produce and I would want to retain the right to exercise our 
right to subpoena. I would acknowledge at the same time that if we 
exercise our right to a subpoena that the President could exercise 
whatever rights he has on executive privilege. We would be back to 
square one, but at least we would have the advantage of the 
questioning. I know the questioning of Senator Leahy, a tough 
prosecutor from Burlington, VT. I have been there. And on an informal 
basis, Senator Leahy can extract quite a lot of information, and 
Chairman Conyers has the capacity to extract a lot of information. I 
might even have a relevant question or two to ask in the course of the 
proceedings.
  I think we can get a lot of information. I want to have that 
information. I want to find out as much as I could before I go to court 
on what is going to be a 2-year battle. It is going to outlast the 
President's term. It is going to outlast Attorney General Gonzales's 
tenure. I don't think the next President is going to reappoint Attorney 
General Gonzales.
  Let the record show there is a smile from staff in the back. It was 
intended to be not serious.
  Then the President doesn't want there to be these witnesses to go 
before both committees, and that is all right. I think Chairman Conyers 
and Chairman Leahy, in consultation with their ranking members, can 
work out a smaller group from the House and Senate, bipartisan, 
bicameral, sufficient to ask the questions. Then I would prefer that it 
be public. But as long as the transcript is published, I would give 
that up as well.
  I think it is so important that we get to the bottom of this 
important issue so we can have the Department of Justice function in 
the interest of the public that I am prepared to make those 
concessions, but I want a transcript. I would even be willing to give 
up the transcript if I am compelled to. I would take the interviews 
rather than have nothing. It would be at least something. But I would 
say to the President, the executive branch, that the transcript 
protects not only the questioners but the persons being questioned so 
there is no doubt as to what was said. I have been in closed-door 
meetings and had a number of participants walk out and, in perfectly 
good faith, have different versions as to what occurred. That happens 
when you are in a closed session. That happens when you are in a closed 
meeting, in perfectly good faith. That is why a transcript would 
protect Sara Taylor. It would protect Ms. Harriet Miers. It would 
protect the people who are being questioned.

  It is my hope we can yet work this out. Before taking the floor, I 
asked Senator Leahy if he would be willing to accept--he doesn't want 
to go as far as I do, and I can understand why he would insist on a 
transcript--I say I would like to have a transcript--but rather than 
have nothing, I would be willing to go into a closed session and have 
Senator Leahy question, Chairman Leahy question, Chairman Conyers 
question, and I question, some others question, to find out what we 
can. If at the end of that process we feel it is necessary to revert to 
subpoenas, we cannot, I think--but in any event should not--give up 
that power that resides with the legislative branch. I don't think we 
have the authority to give it up, but if we had the authority to give 
it up, I wouldn't want to give it up.
  But I want to pursue this matter and I want to get the information. 
When you talk about a criminal citation, a citation for criminal 
contempt, you are talking about a very serious matter. I have great 
empathy for the witnesses, Sara Taylor and Harriet Miers, who have been 
subjected to these subpoenas. If they assert executive privilege, and I 
agree that they are compelled to, I think once they are instructed by 
the President that the work they did for him is subject to his 
executive privilege, as he sees it, I think they have no choice. But 
when you bring a criminal contempt citation against Sara Taylor, people 
aren't going to understand she is an innocent pawn in the midst of this 
proceeding. If you bring a criminal contempt citation against anybody, 
there is an inference of some wrongdoing. You don't have a criminal 
charge customarily unless there is probable cause to believe a crime 
has been committed. That is when you have a warrant of arrest. That is 
when you have an indictment. Of course, a contempt citation is 
different, but if you call it a citation for criminal contempt, that 
has a tarring effect which is very serious and which is very profound.
  The U.S. attorney has to bring the charge, and the U.S. attorney has 
discretion. It is not an automatic matter that if the Congress refers 
the issue for a criminal contempt citation, it is mandated. U.S. 
attorneys have discretion as to what they do. They can bring it or not, 
depending upon their conclusions, upon their allocation of resources. 
And they can bring it on what they want to do. I could see how a U.S. 
attorney might not want to spend a whole lot of time on this matter. I 
can see how the taxpayers of the United States wouldn't like to spend a 
whole lot of time on this matter. But that is where we are heading if 
this posturing continues.

[[Page S8783]]

  Most importantly, we will not find out the underlying facts on the 
request for the resignations of these U.S. attorneys, and that is 
important to do so we can make a final evaluation by the Judiciary 
Committee as to what our conclusions are on this matter, and it would 
bear heavily on the continued service, the continued activity, by 
Attorney General Gonzales in holding that position.
  Madam President, I see the distinguished Senator from Kansas on the 
floor, and we have a short time left until the votes start at 5:30, but 
I yield to Senator Brownback.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. I wish to address the nomination of Janet Neff, who is 
the second nominee to come up. I can do so now or wait until after the 
first vote. I would defer to my colleague from Pennsylvania, if he 
wants to do it that way, or if there an order established on the vote 
or for debate on the second nomination.
  The PRESIDING OFFICER. There are 10 minutes provided to the Senator 
from Kansas after the first vote.
  Mr. BROWNBACK. I would be happy to take my time at that point in 
time, and I yield the floor.
  Mr. SPECTER. Madam President, I think there is going to be real 
interest on the part of the body in moving to the second vote, but 
there are 10 minutes for the Senator from Kansas after the first vote?
  The PRESIDING OFFICER. That is correct.
  Mr. BROWNBACK. I would be happy, if I could, Madam President, to take 
that time now. It won't be the full 10 minutes, but I wish to be able 
to discuss this. This is a matter of some concern. It has been pending 
for over a year, and I think it is meritorious of the nominee that it 
be brought forward.
  Mr. SPECTER. Madam President, I would ask the Senator from Kansas if 
he would be willing to take 5 minutes and delay it to that extent.
  Mr. BROWNBACK. Let us see if I can cover it, but if I can't, I will 
take some time before the second vote occurs. This has been pending for 
a year's period of time, and it is a significant matter.
  Mr. SPECTER. Madam President, I suggest we proceed to regular order 
then.
  The PRESIDING OFFICER. The Senator from Pennsylvania has time 
remaining, if you choose to yield that to the Senator or yield it back.
  Mr. SPECTER. How much time do I have remaining?
  The PRESIDING OFFICER. Nine minutes.
  Mr. SPECTER. Ten minutes. I yield to the Senator from Kansas on the 
understanding that will be the time he would have had otherwise, and 
that we may proceed then to the sequence of votes.
  Mr. BROWNBACK. That is acceptable to me.
  The PRESIDING OFFICER. Without objection, it is so ordered. There are 
9 minutes remaining.
  Mr. BROWNBACK. I thank my colleague from Pennsylvania for 
accommodating me. Also, we wish to accommodate the other Members who 
will come in and I think will want to vote in a series of votes. I 
think that is perfectly fine.
  I wish to address the second nominee who will be up today, Janet T. 
Neff, for the District Court of the Western District of Michigan. The 
Presiding Officer has had an interest in this matter, as well as many 
others. Alexander Hamilton, in Federalist 78, said this about judges:

       The courts must declare the sense of the law; and if they 
     should be disposed to exercise WILL instead of JUDGMENT, the 
     consequence would equally be the substitution of their 
     pleasure to that of the legislative body. The observation, if 
     it proves anything, would prove that there ought to be no 
     judges distinct from that body.

  As we consider judicial nominees, we must consider whether they have 
the temperament, disposition, and ideology to interpret the law without 
regard to their own personal will. Because I am not convinced Judge 
Neff can do that, I cannot support her nomination.
  I wish to give the body some background on this matter. On June 28, 
2006, Judge Janet Neff was nominated by President Bush for a seat on 
the U.S. District Court for the Western District of Michigan. I wish to 
point out that she was part of an overall package of judges that was 
put forward and that the Michigan Senators were part of this discussion 
of her nomination. I do not know if she would have been the top pick of 
the President, but this is where we work together in this body, trying 
to get district judges the Senators from that State would support. 
These were supported by my two distinguished colleagues from Michigan. 
They were for Judge Neff.
  In September of 2006, following her hearing before the Senate 
Judiciary Committee, I became aware of Judge Neff's participation in a 
same-sex commitment or marriage ceremony in Massachusetts in 2002. This 
was reported in the New York Times.
  This concerned me. I placed a hold on Judge Neff's nomination in 
order to ascertain her role in the ceremony and her position on the 
constitutional validity of State bans on same-sex marriage. That is the 
core issue. No. 1, factually, what is it that took place that she 
participated in and, No. 2, what is her view of the constitutionality 
of same sex marriages? She would be going on to the Federal bench and 
this issue is likely to come in front of her.
  With regard to her involvement in the 2002 Massachusetts commitment 
ceremony, Judge Neff first responded to my concerns in a letter. She 
described the context of the ceremony itself but declined to answer 
questions regarding the legality of traditional marriage laws and 
initiatives. For that reason, I requested a second hearing with Judge 
Neff, which was held on May 10, 2007. My distinguished colleague from 
Vermont, the chairman of the committee, accommodated that hearing, and 
I appreciate that he did. At that hearing, Judge Neff testified she 
attended the commitment ceremony in Massachusetts as a close friend of 
one of the women involved. She stated she did not ``lead'' the 
proceeding, as the New York Times reported but, rather, participated as 
the homilist in the formal ceremony itself. Judge Neff testified that 
when she was asked to deliver the homily, she was pleased to do that.
  I spent much time considering whether her role as a homilist can 
fairly be described as leading the ceremony. It is my belief, whether 
she led the ceremony, she was an active participant and not a mere 
bystander.
  I wish to make clear my decision to oppose Judge Neff's nomination is 
not based merely on her involvement in this ceremony. Rather, her 
participation in this ceremony was simply the means I became aware of 
her approach to interpreting same-sex marriage laws, which are likely 
to come in front of her or have a good possibility of coming in front 
of her were she to be placed on the Federal bench.
  After discussing her role in the ceremony, I asked about her 
understanding of the law regarding same-sex marriage. When asked 
whether she feels the Constitution creates a right to same-sex 
marriage, Judge Neff said that is a ``continuing legal controversy.''
  When asked what her understanding is regarding Michigan statutory 
defense of marriage law, she said, ``I really don't have an 
understanding of it.''
  I would note for the record the State of Michigan passed a 
constitutional amendment by a vote of the people in 2004, 59 percent to 
41 percent, defining marriage as a union of a man and woman. But prior 
to that, in 1996, prior to this commitment ceremony in 2002, the 
legislature passed a State law defining marriage as between a man and a 
woman--clearly the law of Michigan.
  When asked her understanding regarding the law in Michigan, she said, 
``It's not entirely settled,'' even though the legislature had passed 
this in 1996 and by 2004 the people of Michigan had passed a definition 
of marriage.
  These answers of hers give me pause. Michigan's defense of marriage 
law, which has been on the books since 1996, says:

       Marriage is inherently a unique relationship between a man 
     and a woman. As a matter of public policy, this State has a 
     special interest in encouraging, supporting and protecting 
     that unique relationship in order to promote, among other 
     goals, the stability and welfare of society and its children. 
     A marriage contracted between individuals of the same sex is 
     invalid in this State.

  In addition to this statute, in 2004, the voters of Michigan passed a 
similar constitutional amendment defining marriage as a union of a man 
and a

[[Page S8784]]

woman. In my opinion, the law of Michigan could not be more settled. 
The fact that Judge Neff feels the court has to weigh in before this 
issue is settled suggests a misunderstanding of the role of the 
judiciary. The people of Michigan have spoken, similar to those of 27 
other States. The amendment was a direct statement by the people of 
Michigan. Never is it more important to respect the will of the people 
than with issues of fundamental family values. Those issues must be 
decided by the people and not by Federal judges.
  Because I am not persuaded that Judge Neff will fairly uphold the law 
of the State of Michigan, I cannot support her nomination for a 
lifetime appointment to the bench.
  This has been a long and arduous journey and I recognize that for 
Judge Neff and I recognize that for the State of Michigan. I appreciate 
her willingness to come in front of us in the confirmation process. But 
I believe one of the most important aspects of my job as a Senator is 
the consideration of judges for the Federal bench. I take the Senate's 
role in the judicial nomination process very seriously. Individuals who 
are put in these positions assume lifetime appointments. We have a 
responsibility to ensure they understand their role and are firmly 
rooted in the principles of law and justice and what they will do in 
interpreting the law, not writing the law. They must be committed to 
following the letter of the law without imposing their own ideologies.

  Because I am not satisfied that Judge Neff can do this, on a very 
important, very controversial issue of our day, I cannot support her 
nomination. I have reached out. I met personally with Judge Neff. I met 
with the Senators from the State of Michigan. This has been a long 
ordeal.
  It is my considered judgment that she is not well-set on her role as 
a judge and more willing to consider her role as an activist in this 
particular issue.
  With that, I ask my colleagues and urge my colleagues to consider it 
and consider opposing and voting against Judge Neff's nomination.
  I thank my colleagues for accommodating me. I urge a ``no'' vote on 
Judge Neff, the second nominee. I yield the floor.
  The PRESIDING OFFICER. The distinguished Senator from Vermont.
  Mr. LEAHY. Madam President, does the Senator from Vermont have any 
time remaining?
  The PRESIDING OFFICER. The Senator does not have any further time on 
this nomination.
  Mr. LEAHY. Madam President, I ask unanimous consent that 3 minutes of 
the time I have reserved between this vote and the next vote be yielded 
to the distinguished senior Senator from Michigan at this point.
  The PRESIDING OFFICER. Is there objection?
  Mr. BROWNBACK. Madam Present, do I have any time remaining? The only 
reason I am asking this is--I think that is a fair request, but I would 
like to have a minute between the votes when our colleagues are 
gathered here. It seems it would be only fair.
  The PRESIDING OFFICER. The Senator from Kansas has 45 seconds 
remaining.
  Mr. BROWNBACK. If I could ask for a minute at that time, I would have 
no problem for 3 minutes for my colleague from Michigan. I think it is 
fair when our colleagues are present to hear some of this discussion.
  The PRESIDING OFFICER. Is there objection? The Senator from Michigan.
  Mr. LEVIN. I believe the Presiding Officer would also need some time 
between the votes, and I believe that is not impacted by the current 
request; is that correct?
  Mr. LEAHY. I will take it off my time between the votes. But there 
will be time for both the Senator from Pennsylvania and the Senator 
from Vermont between the votes.
  Mr. SPECTER. Is the Senator from Kansas asking for 1 minute?
  Mr. BROWNBACK. I am.
  Mr. LEVIN. Between the votes or no?
  Mr. BROWNBACK. Between the votes. That is when your time would occur.
  Mr. LEAHY. I have no objection to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, before the Senator from Michigan speaks, 
the first pending is who?
  The PRESIDING OFFICER. O'Grady is the next.
  Mr. LEAHY. Madam President, I ask it be in order to ask for the yeas 
and nays on both the O'Grady and the Neff nominations at this point.
  The PRESIDING OFFICER. Is there objection to the request? Without 
objection, it is so ordered.
  Mr. LEAHY. I ask for the yeas and nays on those two and only those 
two.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays are ordered on the two nominations.
  The PRESIDING OFFICER. The distinguished Senator from Michigan is 
recognized for up to 3 minutes.
  Mr. LEVIN. I am pleased the long road to confirmation for three 
nominations for the Federal bench in the Western District of Michigan, 
Janet Neff, Robert Jonker, and Paul Maloney is apparently near the end 
of the road. Senator Stabenow and I worked with the White House on 
these nominations. Last year they were unanimously reported out of the 
Judiciary Committee and again this year. The confirmation of these 
nominees has been blocked since last November. The sticking point of 
the Senator who objected was that one of the nominees, Judge Neff, 
personally attended a same-sex commitment ceremony of a family friend 
who was a next-door neighbor of hers for 26 years.
  When Judge Neff was asked to deliver some remarks, Judge Neff felt it 
was similar to being asked by one of her own daughters to be part of an 
important event in her life.
  The ceremony was entirely private. It took place in Massachusetts, 
where Judge Neff has no official capacity. The ceremony had no legal 
effect. Judge Neff took no official role in the ceremony whatsoever.
  Her qualifications are clear. She currently serves on the Michigan 
Court of Appeals, where she has served for a significant period of 
time.
  Judge Neff graduated with honors from the University of Pittsburgh in 
1967, then graduated from Wayne State University Law School in 1970. 
She has had a distinguished legal career. After law school, Judge Neff 
served as an estate and gift tax examiner for the Internal Revenue 
Service and then as a research attorney for the Michigan Court of 
appeals, before becoming an assistant city attorney for the city of 
Grand Rapids. Judge Neff has also worked in private practice, served as 
a commissioner for the Michigan Supreme Court and then as an assistant 
U.S. attorney. Judge Neff currently serves on the Michigan Court of 
Appeals. She has been granted numerous awards and honors, including the 
Outstanding Member for 2006 of the Women Lawyers Association of 
Michigan.
  We are fortunate to have the opportunity today to confirm Judge Neff, 
along with two other qualified nominees, Robert Jonker and Paul 
Maloney.
  I only hope now that we finally have an opportunity to confirm these 
three judges, that we will do so and do so overwhelmingly.
  I yield the floor.
  Mr. WEBB. Madam President, it is my distinct pleasure to offer my 
support--along with my colleague Senator Warner--for the nomination of 
Magistrate Judge Liam O'Grady to be a judge on the U.S. District Court 
for the Eastern District of Virginia.
  Since graduating from law school, Judge O'Grady's career has been as 
expansive as it has been distinguished. Judge O'Grady currently serves 
as magistrate judge in the U.S. District Court for the Eastern District 
of Virginia, where he has sat since 2003. Prior to taking the bench, 
Judge O'Grady was a partner at the law firm of Finnegan, Henderson, 
Farabow, Garrett, & Dunner, LLP, 1992-2003, an assistant U.S. Attorney 
in the Eastern District of Virginia, 1986-1992, and an assistant 
Commonwealth Attorney for the Commonwealth of Virginia. Judge O'Grady 
began his career as a law clerk to an administrative law judge for the 
Department of Labor and the Department of the Interior, 1976-1979, and 
was subsequently a sole practitioner, 1979-1982.
  Judge O'Grady has spent equal time in Federal and State courts and 
has spent equal time handling criminal and civil matters. Judge O'Grady 
has tried more than 100 cases before a jury.

[[Page S8785]]

Moreover, he has authored and published several scholarly articles, and 
he has devoted countless hours in pro bono work for low-income and 
indigent clients. Judge O'Grady was unanimously rated ``well-
qualified'' by the American Bar Association.
  Judge O'Grady is married to Grace McPhearson O'Grady and has four 
children. He resides in McLean, VA. Judge O'Grady received a B.A. from 
Franklin & Marshall College, 1973, and a J.D. from George Mason 
University School of Law, 1977.
  As I have previously noted, the Constitution assigns a pivotal role 
to the Senate in the advice and consent process related to Federal 
judges. These judgeships are lifetime appointments, and Virginians 
expect me to take very seriously my constitutional duties. In my mind, 
it matters not whether a nominee is a Republican or a Democrat, but 
rather whether the nominee will be respectful of the Constitution, and 
impartial, balanced, and fair-minded to those appearing before him. 
After careful deliberation, including conferring with Senator Warner, I 
believe that Judge O'Grady meets these high standards.
  I thank the Chair for the opportunity to make these remarks about 
Judge O'Grady and for the expeditious way the Senate has moved his 
nomination through the process during the 110th Congress. Again, it is 
with pride that I join Senator Warner in recommending Judge O'Grady to 
each of my colleagues in the Senate.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Liam O'Grady, of Virginia, to be U.S. 
district judge for the Eastern District of Virginia.
  On this question, the yeas and nays have been ordered. The clerk will 
call the roll.
  The assistant journal clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Dakota (Mr. 
Dorgan), the Senator from Hawaii (Mr. Inouye), the Senator from South 
Dakota (Mr. Johnson), the Senator from Arkansas (Mrs. Lincoln), and the 
Senator from Illinois (Mr. Obama) are necessarily absent.
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from Colorado (Mr. Allard), the Senator from North Carolina (Mr. Burr), 
the Senator from Georgia (Mr. Chambliss), the Senator from Nevada (Mr. 
Ensign), the Senator from Arizona (Mr. McCain), the Senator from South 
Dakota (Mr. Thune), and the Senator from Ohio (Mr. Voinovich).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                      [Rollcall Vote No. 239 Ex.]

                                YEAS--88

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Durbin
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Martinez
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Vitter
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--12

     Allard
     Burr
     Chambliss
     Dorgan
     Ensign
     Inouye
     Johnson
     Lincoln
     McCain
     Obama
     Thune
     Voinovich
  The nomination was confirmed.

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