[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
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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
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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.
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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.''