[Congressional Record Volume 153, Number 150 (Thursday, October 4, 2007)]
[Senate]
[Pages S12757-S12760]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



               Nomination of Judge Jennifer Walker Elrod

  Mr. CORNYN. Mr. President, I am reminded of a quote from Daniel 
Webster when he said that ``justice is the greatest aspiration of man 
on earth.'' I think the reason we take these judicial nominations so 
seriously is because the judiciary--the people who wear the black 
robe--is the personification of that aspiration for justice.
  Today, it gives me great pleasure to speak in support of the 
nomination of Judge Jennifer Elrod of Houston to the U.S. Court of 
Appeals for the Fifth Circuit. In a few moments, the Senate will vote 
on her nomination.
  As Judge Elrod's career makes clear, she is well qualified for a seat 
on the Federal appellate bench. She has demonstrated the legal acumen, 
the judicial temperament, and dedication to public service which the 
Senate wisely requires of all judicial nominees.
  Since 2002, Judge Elrod has been a State district court judge, 
serving on the 190th District Court in Harris County, TX. As a trial 
judge, she has presided over more than 200 jury and nonjury trials. 
Before that, Judge Elrod practiced law in Houston, TX, in the trial 
department of Baker Botts, a top national law firm.
  Judge Elrod is known for her outstanding intellect, her strong work 
ethic, her integrity, and her courteous demeanor. She has an 
outstanding record as a practicing attorney and as an active State 
court judge. She has demonstrated an impressive commitment to public 
service and pro bono work throughout her career.
  Both while in private practice and while serving the people of Texas 
as a trial judge, Judge Elrod has dedicated much of her free time to 
improving the lives of those less fortunate in the community.
  Even with the demands of a career in the law, she also found time to 
serve as a board member and chairwoman of the Gulf Coast Legal 
Foundation, now called Lone Star Legal Aid. This organization serves 
more than 1 million low-income Texans, making it the fourth largest 
legal aid program in the Nation. She also served as general counsel to 
Communities in Schools in Houston and as the cochair of the Houston 
Volunteer Association's Legal Hotline.
  As a judge, she assisted the Houston Bar Association with numerous 
fundraising activities aimed at providing scholarships for diversity 
and equal access to justice. Judge Elrod dedicated her time to hosting 
and mentoring legal interns from less-privileged backgrounds, opening 
her courtroom to them and teaching these young men and women valuable 
oral advocacy skills. She has been an active participant in the Texas 
Access to Justice Commission, helping young lawyers to provide legal 
services to indigent clients.
  Mr. President, I know of few lawyers, much less judicial nominees, 
with such an outstanding record of consistent commitment to pro bono 
services and public service.
  While my colleagues undoubtedly will acknowledge the importance of 
Judge Elrod's career achievements and dedication to her community, we 
also recognize that the most important attributes of a judicial nominee 
are their temperament and commitment to the rule of law. Above all 
else, a judge must faithfully interpret and apply the law as written 
and not as they wish we in Congress should have written it. I am 
confident Judge Elrod has demonstrated her ability to fairly and 
impartially resolve cases before her.
  Her demonstrated fairness and respect for all is a key reason why her 
nomination is supported across the Houston legal community. She has the 
personal endorsement of the past and current presidents of the Houston 
Bar Association, the Hispanic Bar Association of Houston, and the 
Mexican American Bar Association of Houston, which are just a sampling 
of the broad base of her support. By all accounts, Judge Elrod has 
exercised her judicial

[[Page S12758]]

duties with nothing but neutrality and a commitment to fundamental 
fairness for every litigant before her.
  In sum, Judge Elrod is an accomplished lawyer and judge of high 
character and uncommon integrity. I am honored to enthusiastically 
recommend to the Senate that it vote to confirm her to the U.S. Court 
of Appeals for the Fifth Circuit. I am confident she will serve this 
Nation with honor and distinction.
  Let me say in closing how much I appreciate the chairman of the 
Judiciary Committee, Senator Leahy, for giving Judge Elrod a timely 
hearing and for putting it on the markup on the Judiciary Committee 
schedule. I appreciate the majority leader, Senator Reid, for allowing 
this nomination to come forward to the floor so we can give this good 
judge a vote very soon, I hope.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. CARDIN. Mr. President, I serve on the Judiciary Committee, and 
Chairman Leahy asked that I chair the nomination hearings, the 
confirmation hearings on the three judges whom we are considering 
today.
  I agree completely with our colleagues from the State of Washington 
and the State of Mississippi. I think Richard Jones is well qualified 
and should be confirmed for the U.S. District Court in the Western 
District of Washington.
  I think Sharion Aycock is well qualified, and I strongly support her 
confirmation to the District Court in Mississippi.
  In regard to Jennifer Walker Elrod, for the U.S. Circuit Court for 
the Fifth Circuit, I opposed her nomination in the Judiciary Committee, 
and I take this time to explain to my colleagues why I believe she 
should not be confirmed.
  Let me begin by saying that I agree with my friend from Texas about 
Judge Elrod's commitment to pro bono legal services. She served as 
chair of the board of the Gulf Coast Legal Foundation, now known as 
Loan Star Legal Aid, the largest provider of pro bono services in 
southeast Texas. That is important to me because I think all lawyers 
have a responsibility to help out to make sure our system is available 
to all.

  After serving 8 years in private practice as an associate of Baker 
Botts in Houston, TX, she was appointed to the bench by the Governor in 
2002 as a judge, the 190th District Court in Houston, TX. She was 
reelected to the bench in 2006.
  However, no one is entitled to a circuit court judgeship. In the vast 
majority of cases, these courts are the final law of the land for the 
States in their circuit when it comes to interpreting complex Federal 
statutes and our Constitution. These judges have lifetime appointments 
and are second only to the Supreme Court Justices in terms of their 
power and authority.
  I think we need to exercise a higher standard when we look at the 
confirmation of our appellate court judges. In many cases, they will be 
the final arbitrators of disputes among the people of our States.
  In meeting with Judge Elrod, chairing her nomination hearings, and 
reviewing her written responses to additional questions I posed to her, 
I am not convinced Judge Elrod has the experience for this position.
  I start with the undisputed fact about Judge Elrod's record. By her 
own admission, Judge Elrod has never written a single judicial opinion. 
In response to the Judiciary Committee's questionnaire asking for her 
opinions as a judge, she stated: ``I do not write opinions, I sign 
orders.'' She provided over 6,000 orders to the committee, but most are 
one-page documents that do not contain any discussion of substantive 
law. Indeed, Judge Elrod said that most questions in our committee 
questionnaire about her judicial opinions were not applicable to her 
because certiorari was not granted in any of her cases; appellate 
opinions or orders rarely reviewed her orders and decisions; she had no 
list of unpublished opinions; and she never sat on a judicial panel 
with other colleagues deciding cases. In short, we have no record of 
her ability to write opinions or the rationale for her decisions.
  A nominee for circuit court judge should have experience in writing 
substantive judicial opinions. Judge Elrod does not have this requisite 
experience.
  Judge Elrod, by her own admission, has very little experience in 
criminal cases. When she litigated at Baker Botts for 5 years, she 
responded that her practice involved ``100 percent civil proceedings'' 
and ``0 percent criminal proceedings.'' Her current job as a judge on 
the 190th District Court of Houston, TX, involves almost exclusively 
civil cases.
  A nominee for circuit court judge should have broad experience in 
both criminal and civil cases. Her work in a handful of pro bono cases 
does not give me confidence that she has sufficient understanding of 
the criminal justice system and the rights of defendants. In fact, her 
major initiative in criminal issues involved the amicus brief in the 
case of Texas v. Cobb before the Supreme Court, in which she argued 
that the sixth amendment only applies to ``charged offenses'' and 
therefore a police interrogation without counsel about a subsequent 
offense was admissible. She did not further explain her views about 
this case in her written responses to our committee.
  Judge Elrod, by her own admission, has very little experience in 
Federal court. In response to the committee questionnaire, she stated 
that her private practice involved ``80 percent state court'' cases and 
``20 percent federal'' cases. Her current job as a State district court 
judge involves almost exclusively State issues.
  A nominee for circuit court judge should have broad experience on 
Federal court issues and in the complex questions, often of first 
impression, of Federal law, statutory law, and constitutional 
interpretation that are routinely raised.
  Judge Elrod, by her own admission, has very little experience in 
appellate litigation, with exception of the Cobb case noted above. Her 
current job as a State district court judge involves exclusively trial 
level proceedings.
  A nominee for the circuit court--this is our appellate court, our 
second highest court--who handles these types of cases should have 
significant experience in appellate work.
  Judge Elrod, by her own admission, does not ``write opinions.'' She 
``signs orders.'' Given that circuit court judges are often the final 
say on law of the land in a given circuit--due to the low rate of 
granting certiorari by the Supreme Court--a circuit court judge has an 
unusual amount of authority and decisionmaking power.
  We do not have any track record by which to weigh Judge Elrod's views 
on substantive legal issues, such as civil rights, civil liberties, 
workers' rights, reproductive freedom, environmental protection, 
consumers' rights, or employees' rights.
  The speeches Judge Elrod provided for the record did not shed any 
more light on her opinions on substantive legal issues. She stated she 
did not have notes for many of her speeches. She also has not written 
any substantive legal or journal articles on complex legal or policy 
issues. Judge Elrod does not meet my test for Federal judicial nominees 
since she does not have the requisite experience for an appellate 
judge.
  I want to talk about a separate issue. I talked about experience, 
which I think is important for a nominee who wants to serve on our 
appellate courts. I also think the issue of diversity is an important 
issue that needs to be talked about in this Chamber.
  I wish to talk about the issue of diversity in the Fifth Circuit 
Court of Appeals. The U.S. Court of Appeals for the Fifth Circuit, 
which includes Mississippi, Louisiana, and Texas, presides over the 
largest percentage of minority residents, 44 percent, which includes 
African Americans and Latino citizens, of any regional circuit courts 
of appeal in this country outside of Washington, DC.
  Mississippi has the highest African-American population, 36 percent, 
of any State in the country. Louisiana has the second largest African-
American population, at 32 percent, of any State in this country. It is 
disappointing that none of President Bush's 10 nominations to the 
Federal bench in this circuit were African American. Of the 19 Federal 
judges who now sit on the Fifth Circuit Court of Appeals, only one is 
African American.
  We all agree that diversity at all levels of our judicial system is 
important. Most recently, we have seen mass protests over double 
standards in our

[[Page S12759]]

criminal justice system used to treat African American and White youths 
in Jena, LA. Surely, in 2007 we can do better.
  I take this time to point out that when the President submits a 
nominee for the appellate court, our second highest court, I expect 
that nominee will have the type of experience that is appropriate for a 
judge to be on the appellate court. I certainly am disappointed by the 
President's nominations on this circuit as it relates to diversity. I 
wanted to make sure that was included in the Record.
  Mr. President, I reserve the remainder of my time.
  Mr. SPECTER. Mr. President, I yield 5 minutes to the Senator from 
Texas.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The Senator from Texas 
is recognized for 5 minutes.
  Mr. CORNYN. Mr. President, I thank the distinguished ranking member.
  I certainly respect the right of the Senator from Maryland to express 
his views. I do want to put this in some context.
  I don't know if it is a unique experience currently in the Senate, 
but perhaps it is currently that I am the only Member of the Senate who 
actually served for 13 years as a State judge, both on our State trial 
bench and the supreme court. That does not give me any particular 
qualifications other than to say what it means to have served in those 
capacities, as Judge Elrod has for 5 years. She worked also as a clerk 
for a U.S. district judge, Judge Sim Lake, for 2 years.
  I hope we are not saying that it is a prerequisite for confirmation 
to the job of an appellate judge that one actually has to have served 
as an appellate judge. Of course, rarely do any of us have experience 
in the jobs to which we are assigned or to which we are elected or to 
which we are hired until we have actually had a chance to perform that 
job. What we look at is not whether they have actually done that job 
before, but whether they have done a good job of everything they have 
taken on previously.
  By that standard, Judge Elrod not only has an impressive resume for a 
lawyer of her age, but she has demonstrated her competence, indeed, her 
excellence as a State district court judge.
  I have some sensitivity to the suggestion that she does not have 
lengthy enough experience, alluding to her relative youth. I remember 
when I became a State district judge, I was 32 years old. But, more 
importantly, of the 19 judges currently serving on the Fifth Circuit 
Court of Appeals, 10 were in their forties or younger when appointed; 
three were 41--Judge Elrod's age--or younger. Judge Edith Jones, the 
chief judge of the Fifth Circuit, was 36 when confirmed by the Senate.
  Judge Higginbotham, to whose vacancy Judge Elrod is nominated, was 
44, and Judge Sim Lake, with whom Judge Elrod clerked, was 44 when he 
was appointed.
  I also think of the members of the Judiciary Committee in the Senate 
who have been elected to important positions of responsibility. My 
recollection is--and I have to rely on the distinguished Senator from 
Maryland to remind me--but I think he was one of the youngest, if I am 
not mistaken, speakers of the Maryland House ever elected. He was 
elected at a young age, and that is to his great credit.
  The fact is, age alone should not determine competence for these 
jobs. I think the demonstrated public service and record of excellence 
is sufficient.
  I appreciate the Senator from Maryland acknowledging her tremendous 
record of pro bono service. That is a record of service above and 
beyond the call of duty which I think demonstrates Judge Elrod's 
commitment.
  Finally, on the issue of diversity, I note that Judge Higginbotham, 
who currently occupies the seat to which Judge Elrod has been nominated 
and will serve, is somebody who looks like me. He is a White male. I 
think we ought to celebrate the fact that a woman of Judge Elrod's 
capability and experience has been deemed qualified by the President of 
the United States and by the Senate Judiciary Committee to serve in 
this important position. I think that counts for some diversity.
  I do share the concerns of the Senator from Maryland that too few 
African Americans are attending law school. It reduces the pool of 
potential applicants for people to serve in positions on the judiciary, 
and we need to do more to try to encourage and facilitate that 
situation. But I certainly would not hold it against Judge Elrod that 
she is not an African American. I think she is qualified on the merits.
  I appreciate the Senator from Pennsylvania, the distinguished ranking 
member, giving me a few minutes to explain, perhaps, another side of 
the story.
  Mr. WHITEHOUSE. Mr. President, will the Senator yield for a question?
  Mr. CORNYN. I will.
  Mr. WHITEHOUSE. Mr. President, I know the distinguished Senator from 
Texas was also an attorney general of his State. I wonder if in that 
capacity the staff who served the appellate function in the attorney 
general's office, a solicitor general, are separate and he recognizes 
appellate practice, in many ways, is a specialized skill in that 
context, and I wonder what appellate argument experience the candidate 
for the Fifth Circuit Court of Appeals has?
  Mr. CORNYN. Mr. President, the distinguished questioner, the Senator 
from Rhode Island, is himself a distinguished lawyer and a former 
attorney general with whom I served as a State attorney general. He 
knows as well as I do that a trial judge and a trial lawyer have to 
craft written and legal arguments the same way as an appellate lawyer 
does. Those are the same basic skills that Judge Elrod brings to her 
job.
  It is true, when I became attorney general of my State, I created an 
Office of Solicitor General, recognizing the increasingly specialized 
nature of appellate practice.
  Again, I believe Judge Elrod, by virtue of her extensive trial 
experience, the fact she graduated at the top of her class from law 
school and undergraduate school, served with one of the premier law 
firms in the Nation and with distinction as a trial judge, more than 
adequately qualifies her for this new responsibility.
  Mrs. HUTCHISON. Mr. President, I rise today in strong support of the 
nomination of Judge Jennifer Elrod to serve on the Fifth Circuit Court 
of Appeals.
  Back in July, I was proud to introduce Judge Elrod, a fellow Texan, 
at her Senate Judiciary Committee hearing.
  Judge Elrod is a highly accomplished judicial nominee, with a 
distinguished record as a state court judge and as a practicing 
attorney. I am confident she will capably serve as a federal appelate 
judge for the Fifth Circuit.
  Judge Elrod has shown her judicial capability in the 190th District 
Court in Houston, TX, where she currently presides. At present, she 
manaages a docket of over 1,000 cases, and leads all Harris County 
civil district judges in the number of jury cases tried to verdict 
since 2005.
  Prior to serving on the bench, Judge Elrod practiced at Baker Botts 
LLP, a top national firm, where she worked for 8 years on litigation 
matters including antitrust, employment law, commercial litigation, 
toxic tort, general civil litigation, and personal injury defense. She 
also served as a law clerk to the Honorable Sim Lake in the Southern 
District of Texas.
  Judge Elrod's outstanding intellect is evidenced by her exceptional 
academic credentials, graduating cum laude from Harvard Law School, and 
magna cum laude with distinction from Baylor University in Texas.
  Judge Elrod has long been dedicated to pro bono service and 
charitable causes, and she is the former chair of the Gulf Coast Legal 
Foundation, the largst provider of pro bono legal assistance to 
indigent people in the Texas gulf coast region. She was recently 
commended by the Texas Access to Justice Commission for her service in 
facilitating the advocacy skills of lawyers who represent poor and low 
income Texans.
  Judge Elrod has also been an active member in both the Texas State 
Bar and the Houston Bar Association, with particular service in the 
areas of Continuing Legal Education and the Administration of Justice.
  She is two-time recipient of the President's Award fo Outstanding 
Service to the Houston Bar Association, and she was awarded the 
outstanding Young Lawyer of Houston in 2004 by the Houston Young 
Lawyers Association.

[[Page S12760]]

  I am honored to support the confirmation of Judge Jennifer Elrod 
because she meets the high standards to which we hold all judicial 
nominees.
  She has an impressive record of public service, work ethic, 
integrity, and she will bring great honor to the Federal bench.
  I encourage my colleagues to approve her nomination.
  We must also fill the other two vacancies on the Fifth Circuit.
  The President has nominated two highly accomplished individuals, 
Catharina Haynes, and Leslie Southwick, to fill those vacancies--and 
they deserve a fair and speedy confirmation process.
  The PRESIDING OFFICER. Who yields time?
  Mr. SPECTER. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator has 22 minutes 40 seconds.
  Mr. SPECTER. Mr. President, I support the nomination of Jennifer 
Walker Elrod for the Fifth Circuit Court of Appeals. She has an 
excellent academic record: magna cum laude from Baylor, where she was 
Phi Beta Kappa and cum laude from Harvard Law School. She has served as 
an adjunct faculty member at the University of Houston Law Center. She 
has been in the practice of law for some 15 years, spending 8 years at 
the law firm Baker Botts. She has done extensive pro bono work 
including as general counsel for the Communities in Schools in Houston. 
She has extensive participation in the bar association. She's a member 
of the Mexican-American Bar Association of Houston and the Houston Bar 
Association. I believe her record qualifies her for the circuit court, 
notwithstanding the considerations of age and experience.
  Mr. CARDIN. Mr. President, will my colleague yield for one 
clarification on that point?
  Mr. SPECTER. I do.
  Mr. CARDIN. I want to make it clear for the record that I have never 
at all challenged this nominee for the appellate court on age. I have 
never raised the issue of age, and I would never raise the issue of 
age.
  Mr. SPECTER. I thank the Senator from Maryland for that statement.
  Judge Jennifer Walker Elrod was nominated to a seat on the Fifth 
Circuit Court of Appeals on March 29, 2007, and a hearing was held on 
her nomination on July 19, 2007. Her nomination was reported favorably 
to the full Senate on September 20, 2007.
  Judge Elrod received her B.A., magna cum laude, in economics from 
Baylor University in 1988, where she was Phi Beta Kappa and was named 
the ``Outstanding Graduating Senior in the Honors Program.''
  In 1992, she received her J.D., cum laude, from Harvard Law School. 
At Harvard, she was a senior editor and the assistant business manager 
for the Harvard Journal of Law and Public Policy, and she was a 
finalist in the James Barr Ames Moot Court Competition.
  After law school, Judge Elrod served as a law clerk to Judge Sim Lake 
of the United States District Court for the Southern District of Texas.
  Following her clerkship, Judge Elrod practiced law in the litigation 
department of Baker Botts in Houston, TX.
  In 2002, Governor Rick Perry appointed Judge Elrod to the 190th 
District Court in Harris County, TX, a State trial court. She was 
subsequently elected to the position in the 2002 general election and 
was reelected unopposed in 2006.
  During her time on the bench, Judge Elrod presided over more than 200 
jury and nonjury trials.
  Judge Elrod has been dedicated to pro bono service and charitable 
causes her entire career. While working at Baker Botts, the firm gave 
her the Thomas Gibbs Gee Award for outstanding pro bono work. She also 
received the President's Award from the Houston Bar Association for 
Outstanding Service to the Bar.
  While in private practice, Judge Elrod served as a board member and 
the chair of the board of the Gulf Coast Legal Foundation, now Lone 
Star Legal Aid, which is one of the largest providers of legal aid 
services to the poor in Texas.
  The vacancy to which she is nominated is considered a ``judicial 
emergency'' by the nonpartisan Administrative Office of the Courts.
  The American Bar Association unanimously rated Judge Elrod 
``qualified.''