[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
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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.
____________________