[Congressional Record Volume 153, Number 194 (Tuesday, December 18, 2007)]
[Senate]
[Pages S15888-S15891]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION


  NOMINATION OF JOHN DANIEL TINDER, OF INDIANA, TO BE A UNITED STATES 
                 CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT

  Mr. REID. Mr. President, I ask unanimous consent that the Senate now 
proceed to executive session to consider Executive Calendar No. 373, 
the nomination of John Daniel Tinder, to be United States Circuit 
Judge.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The legislative clerk read the nomination of John Daniel Tinder, of 
Indiana, to be United States Circuit Judge for the Seventh Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes of debate on the nomination, equally divided.
  Mr. LEAHY. Mr. President, we end the 2007 legislative session as we 
began it, by making significant progress confirming the President's 
nominations for lifetime appointments to the Federal bench. At the 
Judiciary Committee's first business meeting of the year, held less 
than 2 weeks after the Republican caucus agreed to the resolutions 
organizing the Senate, I included on our agenda five judicial 
nominations. On January 30, the Senate confirmed the first two judicial 
nominations of the session. Today's confirmation of John Daniel Tinder 
to the Court of Appeals for the Seventh Circuit will be the 40th, 
including 6 of this President's nominations to powerful circuit courts.
  I thank the members of the Judiciary Committee for their hard work 
all year in considering these important nominations. I thank especially 
those Senators who have given generously of their time to chair 
confirmation hearings throughout the year.
  Given the work of the Senators serving on the Judiciary Committee, we 
will have exceeded the yearly total in each of the last 3 years when a 
Republican majority managed the Senate and the consideration of this 
Republican President's nominations. Indeed, with the confirmation today 
of Judge Tinder to replace Judge Daniel A. Manion, like that of Reed 
O'Connor who was confirmed last month to the Northern District, we are 
proceeding to fill vacancies before they even arise.
  The progress we have made this year in considering and confirming 
judicial nominations is sometimes lost amid the partisan sniping over a 
handful of controversial nominations and attempts to appeal to some on 
the far right wing. When we confirm the nomination we consider today, 
the Senate will have confirmed 40 nominations for lifetime appointments 
to the Federal bench this session alone. That is more than the total 
number of judicial nominations that a Republican-led Senate confirmed 
in all of 1996, 1997, 1999, 2000, 2004, 2005 or 2006. It is 23 more 
confirmations than were achieved during the entire 1996 session, more 
than double that session's total of 17, when Republicans stalled 
consideration of President Clinton's nominations. It is seven more than 
the confirmations in the second to last year of President Clinton's 
final term.
  We continue to make progress on circuit court nominations. We began 
the year by resolving an unnecessary controversy over Judge Norman 
Randy Smith's nomination to one of California's seats on the Ninth 
Circuit. That nomination could easily have been confirmed--and a 
judicial emergency addressed--in the last Congress had the Bush 
administration chosen the commonsense approach of nominating Judge 
Smith, who is from Idaho, to Idaho's seat on the Ninth Circuit. After 
many months of urging by me and others, President Bush finally did the 
right thing at the beginning of this Congress by pulling the 
controversial Myers nomination to Idaho's Ninth Circuit seat and 
nominating Judge Smith, instead. He was confirmed in February. We could 
make even more progress if the President would make a California 
nomination to fill the long-vacant California Ninth Circuit seat left 
open by Judge Stephen Trott's retirement.

  We continued through the year to consider and confirm district and 
circuit court judges. In October, the Senate confirmed the nominations 
of Judges Jennifer Walker Elrod and Judge Leslie Southwick, who became 
the fourth and fifth circuit court nominees confirmed this year.
  After this confirmation today, the Senate will have confirmed six 
circuit court nominees, matching the total circuit court confirmations 
for all of 2001. We will also have exceeded the circuit court totals 
achieved in all of 2004 when a Republican-led Senate was considering 
this President's circuit

[[Page S15889]]

nominees; all of 1989; all of 1983, when a Republican-led Senate was 
considering President Reagan's nominees; all of 1993 when a Democratic-
led Senate was considering President Clinton's nominees; and, of 
course, the entire 1996 session during which a Republican-led Senate 
did not confirm a single one of President Clinton's circuit nominees 
the entire session.
  The treatment of President Clinton's nominees contrasts harshly with 
the treatment Democrats gave the circuit court nominees of Presidents 
Reagan and Bush in the Presidential election years of 1988 and 1992. In 
those two election years, the Democratic-controlled Senate averaged 
nine circuit court confirmations. Regrettably, the Republican Senate 
reversed that course in the treatment of President Clinton's circuit 
court nominations, confirming an average of only four in the 
Presidential election years of 1996 and 2000, and none in the entire 
1996 session.
  At the end of the 106th Congress, the last 2 years of the Clinton 
administration, the Republican-led Senate returned to the President 
without action 17 of his appellate court nominees. I have not 
duplicated that record and I do not intend to, any more than I intend 
to see the Senate pocket filibuster more than 60 of President Bush's 
judicial nominees, as Republicans did with President Clinton's.
  It is a little known fact that during the Bush Presidency, more 
circuit judges, more district judges--more total judges--were confirmed 
in the first 24 months that I served as Judiciary chairman than during 
the 2-year tenures of either of the two Republican chairmen working 
with Republican Senate majorities.
  I continue to try to find ways to make progress. Last month, I sent 
the President a letter urging him to work with me, Senator Specter, and 
home State Senators to send us more well-qualified, consensus 
nominations. Now is the time for him to send us more nominations that 
could be considered and confirmed as his Presidency approaches its last 
year, before the Thurmond Rule kicks in.
  As I noted in that letter, I have been concerned that several recent 
nominations seem to be part of an effort to pick political fights 
rather than judges to fill vacancies. For example, President Bush 
nominated Duncan Getchell to one of Virginia's Fourth Circuit vacancies 
over the objections of Senators Warner and Webb, one a Republican and 
one a Democrat.
  They had submitted a list of five recommended nominations, and 
specifically warned the White House not to nominate Mr. Getchell. As a 
result, this nomination that is opposed by Democratic and Republican 
home-state Senators is one that cannot move.
  The Administrative Office of the U.S. Courts will list 43 judicial 
vacancies and 14 circuit court vacancies after today's confirmations. 
Compare that to the numbers at the end of the 109th Congress, when the 
total vacancies under a Republican controlled Judiciary Committee were 
51 judicial vacancies and 15 circuit court vacancies. That means that 
despite the additional 5 vacancies that arose at the beginning of the 
110th Congress, the current vacancy totals under my chairmanship of the 
Judiciary Committee are below where they were under a Republican led-
Judiciary Committee.
  The President has sent us 27 nominations for these remaining 
vacancies. Sixteen of these vacancies--more than one third--have no 
nominee. Of the 17 vacancies deemed by the Administrative Office to be 
judicial emergencies, the President has yet to send us nominees for 7, 
nearly half of them. If the President would decide to work with the 
Senators from Michigan, Rhode Island, Maryland, California, New Jersey, 
and Virginia, we could be in position to make even more progress.
  Of the 16 vacancies without any nominee, the President has violated 
the timeline he set for himself at least 11 times--11 have been vacant 
without so much as a nominee for more than 180 days. The number of 
violations may in fact be much higher since the President said he would 
nominate within 180 days of receiving notice that there would be a 
vacancy or intended retirement rather than from the vacancy itself. We 
conservatively estimate that he also violated his own rule 15 times in 
connection with the nominations he has made. That would mean that with 
respect to the 43 vacancies, the President is out of compliance with 
his own rule more than half of the time.
  We have succeeded in dramatically lowering vacancies and, in 
particular, circuit court vacancies. We have helped cut the circuit 
vacancies from a high water mark of 32 in the early days of this 
administration to as low as 13 this year. Contrast that with the 
Republican-led Senate's lack of action on President Clinton's moderate 
and qualified nominees that resulted in increasing circuit vacancies 
during the Clinton years from 17 when he was inaugurated to 26 at the 
end of his term. During those years, the Republican-led Senate engaged 
in strenuous and successful efforts under the radar to keep circuit 
judgeships vacant in anticipation of a Republican President. More than 
60 percent of current circuit court judges were appointed by Republican 
Presidents, with the current President having appointed more than 30 
percent of the active circuit judges already.
  The American people expect the Federal courts to be fair forums where 
justice is dispensed without favor to the right or the left. I have set 
out since the beginning of this Congress to do all that I can to ensure 
that the Federal judiciary remains independent and able to provide 
justice to all Americans. These are the only lifetime appointments in 
our entire government, and they matter. I will continue in the 2008 
session to work with Senators from both sides of the aisle as I have in 
the 2007 session.
  John Daniel Tinder has a decade of service as a District Court Judge 
for the Southern District of Indiana. Before his tenure on the bench, 
he worked for 7 years at the Justice Department as U.S. Attorney and 
Assistant U.S. Attorney for the Southern District of Indiana. He has 
worked in private practice and has experience as a county prosecutor 
and county public defender. His nomination has the support of both home 
State Senators. I acknowledge the support of Senators Lugar and Bayh, 
and want to thank Senator Durbin for chairing the hearing on this 
nomination.
  While I support Judge Tinder's confirmation, I am concerned about his 
answer to a question I sent him on the legal significance of 
Presidential signing statements. I asked Judge Tinder if an alleged 
violation of the law prohibiting cruel, inhuman, and degrading conduct 
by American personnel were to come before a court, would it be 
appropriate for that court to consider the President's signing 
statement as legislative history, in addition to the text of law 
itself. I am troubled by Judge Tinder's answer that he is open to 
looking at signing statements as a tool for determining the meaning of 
a statute.
  Throughout the country's history, Presidents used signing statements 
for limited purposes, such as explaining to the public the likely 
effects of legislation or providing direction to administrative 
agencies within the Executive Branch. It has long been considered out 
of bounds for any President to use signing statements--which are at 
most post-passage remarks--for the more expansive and controversial 
purpose of creating legislative history that our courts would be 
expected to follow. Legislative history is created within the Congress, 
which is charged by the Constitution with considering and passing laws. 
The President may veto legislation, but the constitutional system of 
checks and balances does not allow the President to speak for Congress.
  The Nation stands at a pivotal moment in history, where Americans are 
faced with a President who makes sweeping claims for almost unchecked 
Executive power. This President has used signing statements to 
challenge laws banning torture, laws on affirmative action, and laws 
that prohibit the censorship of scientific data. When the President 
uses signing statements to unilaterally rewrite laws enacted by 
Congress, he undermines the rule of law and our constitutional checks 
and balances. It is incumbent upon the Federal judiciary, to safeguard 
and protect the constitutional balance when necessary.
  I hope that Judge Tinder will fulfill his oath and be an independent 
buffer against constitutional overreaching. I congratulate the nominee 
and his family on his confirmation today.
  Mr. LUGAR. Mr. President, I appreciate this opportunity to support 
the

[[Page S15890]]

President's nomination of Judge John Daniel Tinder to serve as a United 
States Circuit Judge for the Seventh Circuit.
  I would first like to thank Senate Judiciary Chairman Pat Leahy, 
Ranking Member Arlen Specter, the respective Leaders, and Senator Bayh 
for their important work to facilitate timely consideration of this 
nomination.
  Late last year, Circuit Judge Dan Manion informed me of his decision 
to assume senior status after a distinguished career of public service. 
Given this upcoming vacancy and the need for continued strong 
leadership, I was pleased to join with my colleague Evan Bayh in 
commending John Tinder to President Bush. This selection was a product 
of a bipartisan process and reflective of the importance of finding 
highly qualified Federal judges to carry forward the tradition of fair, 
principled, and collegial leadership.
  As the Founders observed when our Constitution was drafted, few 
persons ``will have sufficient skill in the laws to qualify them for 
the stations of judges,'' and ``the number must be still smaller of 
those who unite the requisite integrity with the requisite knowledge.'' 
Judge Tinder embodies the rare combination that the Framers envisioned.
  I have known John for many years and I have always been impressed 
with his high energy, resolute integrity, and remarkable dedication to 
public service.
  John graduated with honors from Indiana University while earning his 
Bachelor's degree and then later graduated from Indiana University 
School of Law in Bloomington.
  John served in a variety of critical legal roles early in his career 
which helped to shape his strong litigation background and experience. 
Among many legal positions, he has served as an assistant United States 
Attorney, a public defender, chief trial deputy in the county 
prosecutor's office and as a partner in private practice.
  Given his broad experience and great abilities, John was a natural 
selection to serve as United States Attorney for the Southern District. 
After 3 years of active and distinguished service, John was then tapped 
again by President Reagan to serve as United States District Court 
Judge for Southern Indiana where he has served since 1987. In 20 years 
on the bench, he has presided over more than 200 jury trials in this 
district. His decisions are well known to be clear, well-reasoned, and 
thorough while applying appropriate precedents to the facts in each 
case. He is fully aware of the importance of appellate court decisions 
and their impact on the trial courts.
  Throughout John's career, his reputation for personal courtesy, 
fairness, decency and integrity was equally well-earned and widespread 
among colleagues and opposing counsel alike and on both sides of the 
political aisle. The Senate has already unanimously confirmed him 
twice, and it is not surprising that news of his Circuit Court 
nomination has been well received by stakeholders in the legal 
community and the public.
  I am also pleased that John's experience and professionalism were 
recognized by the American Bar Association which bestowed their highest 
rating of ``well qualified'' for his nomination.
  I would again like to thank Chairman Leahy and Ranking Member Specter 
for their important work on this nomination. I believe that Judge 
Tinder will demonstrate remarkable leadership and will appropriately 
uphold and defend our laws under the Constitution.
  Mr. BAYH. Mr. President, this past spring, Senator Lugar and I made a 
joint recommendation to President Bush to nominate Judge John Tinder 
for a seat on the U.S. Court of Appeals for the Seventh Circuit, the 
second highest court in the land. President Bush followed our advice, 
the Judiciary Committee unanimously approved his nomination, and today 
I am pleased to announce that the Senate will vote on Judge Tinder's 
nomination.
  I take very seriously the Senate's constitutional duty to provide 
advice and consent for all judicial nominees. The Senate shares a 
responsibility with the President to ensure that the judiciary is 
staffed with men and women who possess outstanding legal skills, 
suitable temperament, and the highest ethical standing.
  I regret, however, that the process for confirming judicial nominees 
has become too partisan in recent years and has produced too many 
controversial nominees.
  I have worked hard with my friend and colleague, Senator Lugar, to 
restore civility in Washington and to end the politics of personal 
destruction. We have worked closely together to build consensus and 
move forward in a responsible way to address the challenges that face 
the American people.
  John Tinder is the embodiment of good judicial temperament, intellect 
and evenhandedness. He has been praised from both sides of the 
political spectrum for his service in the Southern District of Indiana, 
and I am confident he will receive those kinds of reviews, as well, on 
the Seventh Circuit.
  I have known John for 20 years. Judge Tinder was born in Indiana, 
went to law school in Indiana, and has spent his entire legal career in 
Indiana, where he and his wife Jan currently reside. Judge Tinder is a 
Hoosier through and through.
  At only 57, Judge Tinder has had a distinguished legal career that 
would make most lawyers envious. Judge Tinder has served as a Federal 
district court judge, Federal and local prosecutor, public defender, 
adjunct professor, and private practitioner. In 1984, at 34 years of 
age, he was nominated by President Reagan to become the U.S. attorney 
for the Southern District of Indiana. Three years later, Reagan 
nominated him to become a Federal judge. With over 30 years of 
experience, Judge Tinder has already practiced on both sides of the 
bench in the Seventh Circuit, arguing cases before it as an assistant 
U.S. attorney and presiding by designation in 12 cases. Overall, he has 
presided over 750 trials and has published over 700 opinions.
  By all accounts, Judge Tinder is a good, smart, honest judge, who is 
highly experienced and capable. Judge Tinder has received the highest 
possible rating from the ABA.
  If we had more nominees like John Tinder, we would have less fighting 
around this place. He is a good judge, he is a good lawyer, he is 
thoughtful, and he is nonpartisan. I hope that going forward, perhaps, 
others of a similar mold will come before us so that we can do our duty 
with less acrimony.
  Judge Tinder enjoys my whole-support, and I ask my Senate colleagues 
to confirm Judge Tinder to the Seventh Circuit Court of Appeals.
  Mr. LEAHY. Mr. President, with this nomination, I note we have 
confirmed more in this session of the Senate--of President Bush's 
judges--than the total number of judicial nominations the Republicans 
confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005, and 2006. I 
thought I would mention that.
  Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I simply ask unanimous consent that the 
record of John Daniel Tinder be printed in the Congressional Record, 
and I urge my colleagues to support him for confirmation.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           John Daniel Tinder


         United States Court of Appeals for the Seventh Circuit

       Birth: 1950, Indianapolis, Indiana.
       Legal Residence: Indiana.
       Education: B.S., with honors, Indiana University School of 
     Business, 1972; Hoosier Scholar and Dean's List, 1968-1972; 
     Beta Gamma Sigma (national business honorary fraternity), 
     1971 and Business School Honor Society.
       J.D., Indiana University School of Law--Bloomington, 1975.
       Employment: Associate, Tinder & O'Donnell, 1975; Assistant 
     U.S. Attorney, U.S. Attorney's Office, Southern District of 
     Indiana, 1975-1977; Partner, Tinder & Tinder, 1977-1982; 
     Public Defender, Marion County Criminal Court, 1977-1982; 
     Deputy Prosecutor (Chief Trial Deputy), Marion County 
     Prosecutor's Office, 1979-1983; Associate, Harrison and 
     Moberly, 1982-1984; Adjunct Professor, Indiana University 
     School of Law, 1980-1987 and United States Attorney, Southern 
     District of Indiana, 1984-1987 and United States District 
     Judge, Southern District of Indiana, 1987-Present.
       Selected Activities: Academy of Law Alumni Fellow, Indiana 
     University School of

[[Page S15891]]

     Law, 2007; Volunteer of the Year, Wheeler Boys and Girls 
     Club, Indianapolis, 1988; Member, Indianapolis Bar 
     Association, 1975-Present; Current Vice President and Member 
     Pro Bono Standing Committee, 2002-2004.
       Bloomington Board of Visitors, Indiana University School of 
     Law, 1985-1996; Chair, 1994 and Dean Search Committees, 1990, 
     2003.
       Member, Indiana Supreme Court.
       Member, U.S. Attorney General's Advisory Committee of U.S. 
     Attorneys, 1985-1987 and Vice Chairman, 1986-1987.
       Member, Judicial Conference of the United States; Member, 
     Committee on Automation and Technology, 1994-1997 and Member, 
     Committee on Court and Judicial Security, 1990-1992.
       ABA Rating: Unanimous well-qualified.

  The PRESIDING OFFICER. If there is no further debate, the question 
is, Shall the Senate advise and consent to the nomination of John 
Daniel Tinder, of Indiana, to be United States Circuit Judge for the 
Seventh Circuit?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from New York (Mrs. Clinton), the Senator from Connecticut 
(Mr. Dodd), the Senator from California (Mrs. Feinstein), and the 
Senator from Illinois (Mr. Obama) are necessarily absent.
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from New Mexico (Mr. Domenici) and the Senator from Arizona (Mr. 
McCain).
  The PRESIDING OFFICER (Mr. Whitehouse). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 93, nays 0, as follows:

                      [Rollcall Vote No. 442 Ex.]

                                YEAS--93

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     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
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--7

     Biden
     Clinton
     Dodd
     Domenici
     Feinstein
     McCain
     Obama
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President will 
be notified of the Senate's action.

                          ____________________