[Congressional Record Volume 153, Number 141 (Friday, September 21, 2007)]
[Senate]
[Pages S11945-S11947]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              NOMINATIONS

  Mr. HATCH. Mr. President, I want to address my colleagues for just a 
few minutes on the subject of nominations to the Department of Justice 
and to the Federal judiciary.
  Our obligation is the same for each, to focus on the qualifications 
of nominees through a process that respects the separation of powers.
  First, let me say that the President has made a first-rate nomination 
by choosing Judge Michael Mukasey as the next Attorney General of the 
United States. He will bring to this vital leadership post 16 years of 
private legal practice, 4 years as a Federal prosecutor, and 19 years 
as a Federal judge.
  He headed the Official Corruption Unit during his service as 
Assistant U.S. Attorney in the Southern District of New York. And he 
served as Chief Judge during his last 6 years on the U.S. District 
Court for the Southern District of New York.
  By any reasonable or objective measure, Judge Mukasey is clearly 
qualified to lead the Justice Department.
  I want also to draw attention to an aspect of Judge Mukasey's 
experience and record that makes him particularly qualified to lead the 
Justice Department at this challenging time in our history.
  The U.S. District Court is divided into 94 geographical districts. 
These districts' caseloads vary widely, reflecting the characteristics, 
demographics, and realities in those districts.
  The Southern District of New York, where Judge Mukasey served for 19 
years and which he led for 6 years, is no different.
  Serving in that key judicial district led Judge Mukasey to confront 
the terrorist threat to America long before the 9/11 attacks. He 
presided over the prosecution of Omar Abdel Rahman and sentenced him to 
life in prison for his role in the 1993 plot to blow up the World Trade 
Center.
  When the U.S. Court of Appeals for the Second Circuit affirmed Judge 
Mukasey's decision, it took the unusual step of commenting specifically 
on how he had handled the trial. The appeals court said Judge Mukasey 
``presided with extraordinary skill and patience, assuring fairness to 
the prosecution and to each defendant and helpfulness to the jury. His 
was an outstanding achievement in the face of challenges far beyond 
those normally endured by a trial judge.''
  That is a remarkable statement. Appeals courts review lower court 
decisions, but very rarely do they comment in this manner on lower 
court judges.
  That case occurred before the 9/11 terrorist attacks.
  Ten years later, after those attacks, Judge Mukasey ruled that the 
President had authority to designate Jose Padilla as an enemy combatant 
against the United States and that, even as an enemy combatant, he must 
have access to his lawyers. Padilla was eventually convicted of 
providing material assistance to terrorists.
  Legal analyst Benjamin Wittes wrote about this case in the journal 
Policy Review and said that Judge Mukasey's decision was ``the single 
most compelling judicial opinion yet written on the

[[Page S11946]]

due process rights of citizens held as enemy combatants.'' That is high 
praise indeed.
  This background and experience with national security and terrorism 
cases make Judge Mukasey especially qualified to lead the Department of 
Justice at this time in America's history.
  The Justice Department is being retooled and redirected in light of 
the war on terror, including creation of its new National Security 
Division.
  Many of the issues in this area may begin with legislation, but end 
up in the courts. Having someone at the helm with experience not only 
as a prosecutor but as a judge evaluating these very issues will be 
invaluable.
  In addition to these qualifications are important personal and 
character qualities which I believe we need in our leaders.
  A Federal judge's law clerks probably know better than anyone how the 
judge thinks, how he approaches the law, how he handles tough issues, 
and how he treats others.
  I ask unanimous consent to have printed in the Record a letter signed 
by 43 of Judge Mukasey's former law clerks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. HATCH. This letter describes his decisiveness and mastery of the 
law, as well as his fairness, humility, and commitment to public 
service.
  We must evaluate Judge Mukasey's qualifications and character through 
a process that respects the separation of powers.
  The Constitution gives the President authority to appoint members of 
his Cabinet, including the Attorney General. While the Senate has a 
role in checking that authority, ours is not a coequal role with the 
President, and we may not use our confirmation role to undermine the 
President's appointment authority.
  Some of my colleagues may want to use these nominations to fight 
policy or political battles. Those fights are for the legislative 
process or the oversight process, but not the confirmation process.
  Some of my colleagues have even hinted that they may manipulate the 
confirmation process for Judge Mukasey in an attempt to force 
compliance by the Bush administration with certain demands on other 
issues.
  That kind of political extortion would be wrong.
  The Justice Department needs leadership now, and Judge Michael 
Mukasey is qualified and ready for duty now.
  During my 31 years in this body, we have taken an average of 3 weeks 
to move an Attorney General nominee from nomination to confirmation. 
There is no reason we cannot meet that standard with the excellent and 
well-qualified nominee now before us.
  The same two obligations apply to nominations to the Federal bench.
  Let me repeat, we must focus on a nominee's qualifications through a 
process that respects the separation of powers.
  It is a curious fact of recent American history that, like the 
situation today, the last three Presidents each faced a Senate 
controlled by the other political party during his last 2 years in 
office. Two of those presidents were Republicans, one was a Democrat.
  During those last 2 years of a President's tenure, the Senate 
confirmed an average of 91 judges, 74 to the U.S. District Court and 17 
to the U.S. Court of Appeals.
  This is only one way of measuring confirmation progress, and I 
realize some may not care a bit about what has happened in the past. 
But for those who do, I simply offer this as a yardstick, a gauge of 
the progress we are making today.
  The last 2 years of those previous Presidents' tenures are an 
obviously parallel measure for us today, since we are in the last 2 
years of President Bush's tenure.
  We are nearing the end of September and have confirmed just three 
judges this year to the U.S. Court of Appeals. The last one was nearly 
5 months ago.
  At the same point in this same year during those last three 
administrations, the Senate had confirmed an average of six appeals 
court nominees, twice as many.
  Meanwhile, the vacancy rate on the U.S. Court of Appeals continues to 
rise, and is nearly 10 percent higher than when President Bush was 
reelected.
  By raising this issue, I run the risk of some talking about what they 
like to call pocket filibusters of Clinton nominees. This cute but 
profoundly misleading phrase is intended to suggest that the Republican 
Senate blocked Clinton judicial nominees, the number they use varies 
all the time, who all could have been confirmed.
  I will say just two things about this well-worn mantra.
  First, a certain number of nominees of every President remain 
unconfirmed for a variety of reasons. Anyone who pretends otherwise is 
trying to mislead the American people about how the confirmation 
process actually works.
  Some Clinton nominees were withdrawn, others were opposed by home-
State Senators, others were nominated too late to be evaluated. 
Honestly taking these and other factors into account shows that the 
margin of error by these critics tops an astonishing 400 percent.
  The second response is simpler. President Clinton appointed 377 
Federal judges with a Senate controlled by the other party for 6 of his 
8 years in office.
  This is second only to President Reagan's 383 judicial appointees 
with a Senate controlled by his own party for 6 of his 8 years in 
office.
  We need to make more progress confirming judicial nominees. The needs 
of the judiciary and the yardstick of history indicate that we are not 
doing our duty.
  President Bush has the lowest judicial confirmation rate, overall, 
and for appeals court judges in particular, of any President during my 
three decades in this body.
  Instead of making the confirmation progress that we should, we see a 
series of steadily changing standards, whatever it takes to defeat the 
nominations of good men and women.
  I have spoken here on the floor several times about the attack on 
Judge Leslie Southwick, nominated to the U.S. Court of Appeals for the 
Fifth Circuit.
  Opponents urge his defeat on the basis of just two of the 7,000 cases 
in which he participated, on the basis of two concurring opinions he 
did not write--not because he applied the law incorrectly, but because 
the opponents do not like the result of him applying the law correctly.
  That standard is wrong and I hope it does not succeed.
  I have here the Washington Post editorial from last month and I agree 
with its title. Judge Southwick is indeed qualified to serve.
  The editorial says that while the Post does not like the results in 
the two cases that opponents highlight, they cannot find fault with 
Judge Southwick's legitimate interpretation of the law.
  Judges are not supposed to deliver results that please this or that 
political constituency. Judges are supposed to correctly interpret and 
apply the law.
  Judge Southwick is committed to that judicial role and he should be 
confirmed.
  Now we see an attack on another nominee to the same court, Judge 
Jennifer Elrod.
  When the Judiciary Committee reported her nomination to the floor 
yesterday, one of my Democratic colleagues questioned her 
qualifications for the position.
  Judge Elrod, who currently serves on the State court trial bench in 
Texas, graduated cum laude from Harvard Law School and joined the State 
trial court bench after 8 years of private practice. For a dozen years, 
she served on the board and eventually chaired the Gulf Coast Legal 
Foundation, one of the largest legal aid organizations helping the poor 
in southeastern Texas.
  Judge Elrod has as much judicial experience as did Sandra Day 
O'Connor when she was unanimously confirmed to the Supreme Court of 
United States. In fact, when you include Judge Elrod's 2 years clerking 
for U.S. District Judge Sim Lake, Judge Elrod has more judicial 
experience, and more Federal court experience, than did Justice 
O'Connor.
  I voted for Justice O'Connor, I certainly believed she was qualified 
for the Supreme Court, and I know that Judge Elrod is qualified for the 
Fifth Circuit.
  But Democratic colleagues in the Judiciary Committee also questioned

[[Page S11947]]

Judge Elrod's fitness for the Fifth Circuit because of her race. One 
colleague said that we must consider the race of sitting judges as well 
as judicial nominees as we proceed through the confirmation process.
  The implications of this view are troubling, to say the least. This 
means that no matter what a nominee's qualifications, no matter what 
her experience or background, no matter what she would bring to the 
bench, a nominee's race can, and some apparently believe even should, 
trump her merit.
  Appointing judges based on race is an inappropriate standard that I 
cannot accept.
  Like Judge Southwick, Judge Elrod has been nominated to a vacancy 
open so long that the Administrative Office of the U.S. Courts has 
designated it a judicial emergency.
  Like Judge Southwick, Judge Elrod should be confirmed without further 
delay.
  Evaluating nominees and deciding whether to consent to their 
appointment is a unique and profound responsibility of this body. As we 
examine the nomination of Judge Mukasey to be Attorney General or the 
nominations of Judge Southwick and Judge Elrod to the Fifth Circuit, I 
urge my colleagues to focus on their qualifications. I urge my 
colleagues to fulfill our responsibility through a process that 
respects the separation of powers. I urge my colleagues to reject 
inappropriate standards such as political litmus tests or race.
  Our judiciary is the best and most independent in the world, and I 
hope we will preserve this tradition in our confirmation actions and 
decisions in the weeks and months ahead.

                               Exhibit 1

     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Majority Leader Reid, Minority Leader McConnell, 
     Chairman Leahy, and Ranking Member Specter: We served as law 
     clerks for the Honorable Michael B. Mukasey, former Chief 
     Judge of the United States District Court for the Southern 
     District of New York and the President's nominee for Attorney 
     General of the United States. Each of us had the privilege of 
     working closely with Judge Mukasey and observing this man of 
     great intellect, integrity, honor, and judgment. We write to 
     express our enthusiastic support for Judge Mukasey's 
     nomination.
       Judge Mukasey's reputation as a careful and wise jurist is 
     well deserved. In each of his cases, Judge Mukasey based his 
     decisions--always thoughtful, carefully crafted, and well-
     reasoned--on the application of governing laws and legal 
     principles to the facts. As a trial judge, he controlled the 
     courtroom through his decisiveness and mastery of the rules 
     of evidence. In the performance of his judicial duties, the 
     Judge taught us the importance of modesty and humility, for 
     he recognized that with his position came great 
     responsibility that had to be exercised prudently and with 
     care. All who appeared before him were treated with fairness 
     and respect. And as Chief Judge of the district for six 
     years, he managed one of the nation's busiest and most 
     respected courthouses, all the while attending to a full 
     docket of cases.
       Because of the close relationship between law clerk and 
     judge, we came to know Judge Mukasey not only as a jurist, 
     but also as a person. The Judge is kind, caring, loyal, 
     ethical, and modest, with a disarming wit and robust sense of 
     humor. He was a wonderful teacher, sharing with us his 
     insights into life, law, and lawyering. Even after leaving 
     our clerkships, the Judge has joined in our significant life 
     events and provided invaluable advice--from attending our 
     weddings, to visiting us following the births of our 
     children, to assisting us with career choices. He remains a 
     true friend and mentor.
       Finally, Judge Mukasey is deeply patriotic and has spent 
     most of his career in public service, first as an Assistant 
     United States Attorney--a job he speaks of with great pride 
     even years later--and then as a judge. Notwithstanding the 
     immense imposition on him and his family that resulted from 
     the terrorism cases over which he presided, the Judge 
     proceeded without complaint or hesitation, seeing it as part 
     of his duty to the country he loves.
       The President has now asked Judge Mukasey to serve our 
     country again, this time as Attorney General of the United 
     States. We are certain that he will make an outstanding 
     Attorney General. Judge Mukasey's keen intelligence, 
     independence and judgment will bring to the country as a 
     whole and to the Department of Justice in particular strong 
     leadership and integrity.
       We urge you to confirm him as Attorney General without 
     delay.
           Sincerely,
       Steven M. Abramowitz, Clerk for Judge Mukasey, 1990-91; 
     Laura Adams, Clerk for Judge Mukasey, 1992-93; David 
     Altschuler, Clerk for Judge Mukasey, 2005-06; Elisabeth 
     Bassin, Clerk for Judge Mukasey, 1989-90; Matthew Beltramo, 
     Clerk for Judge Mukasey, 1997-98; Heana H. Kutler, Clerk for 
     Judge Mukasey, 1995-96; David Leinwand, Clerk for Judge 
     Mukasey, 1991-92; Justin D. Lerer, Clerk for Judge Mukasey, 
     2002-03; Russell L. Lippman, Clerk for Judge Mukasey, 2001-
     02; and Nicole Mariani, Clerk for Judge Mukasey, 2005-06.
       Babette Boliek, Clerk for Judge Mukasey, 1998-99; William 
     A. Braverman, Clerk for Judge Mukasey, 1994-95; Gidon M. 
     Caine, Clerk for Judge Mukasey, 1988-89; Andrew J. Ceresney, 
     Clerk for Judge Mukasey, 1996-97; Daniel Park Chung, Clerk 
     for Judge Mukasey, 2004-05; David Cross, Clerk for Judge 
     Mukasey, 2003-04; Thomas Dahdouh, Clerk for Judge Mukasey, 
     1988-89; Inayat Delawala, Clerk for Judge Mukasey, 2004-05; 
     Anne Osborne Martinson, Clerk for Judge Mukasey, 1990-91; and 
     Zachary S. McGee, Clerk for Judge Mukasey, 1997-98.
       Sanjay Mody, Clerk for Judge Mukasey, 2003-04; Shawn 
     Morehead, Clerk for Judge Mukasey, 2000-01; Florence Pan, 
     Clerk for Judge Mukasey, 1993-94; Frank Partnoy, Clerk for 
     Judge Mukasey, 1992-93; Mickey Rathbun, Clerk for Judge 
     Mukasey, 1987-88; Katherine J. Roberts, Clerk for Judge 
     Mukasey, 2001-02; Jenny C. Ellickson, Clerk for Judge 
     Mukasey, 2003-04; Michael Farbiarz, Clerk for Judge Mukasey, 
     1999-00; Jesse M. Furman, Clerk for Judge Mukasey, 1998-99; 
     and Bruce Goldner, Clerk for Judge Mukasey, 1993-94.
       Nola Breglio Heller, Clerk for Judge Mukasey, 2004-05; Mary 
     Holland, Clerk for Judge Mukasey, 1989-90; Michael Jacobsohn, 
     Clerk for Judge Mukasey, 2005-06; Emil A. Kleinhaus, Clerk 
     for Judge Mukasey, 2002-03; Ilissa Rothschild, Clerk for 
     Judge Mukasey, 1987-88; Andrew A. Ruffino, Clerk for Judge 
     Mukasey, 1995-96; Sarah Russell, Clerk for Judge Mukasey, 
     2002-03; Hattie Ruttenberg, Clerk for Judge Mukasey, 1991-92; 
     Eli Schulman, Clerk for Judge Mukasey, 1999-00; and Ian 
     Shapiro, Clerk for Judge Mukasey, 2000-01.
       Paul Spagnoletti, Clerk for Judge Mukasey, 2001-01; Debra 
     Squires-Lee, Clerk for Judge Mukasey, 1996-97; Alisa Jancu 
     Kohn, Clerk for Judge Mukasey, 1994-95; and David B. Toscano, 
     Clerk for Judge Mukasey, 1994.

  Mr. HATCH. I personally thank my colleague from Alaska for allowing 
me to go forth and to make these comments. I am grateful to her.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.

                          ____________________