[Congressional Record Volume 154, Number 83 (Tuesday, May 20, 2008)]
[Senate]
[Pages S4435-S4439]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATIONS OF MICHAEL G. McGINN TO BE UNITED STATES MARSHAL FOR THE 
DISTRICT OF MINNESOTA, RALPH E. MARTINEZ TO BE A MEMBER OF THE FOREIGN 
 CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES, AND G. STEVEN AGEE 
       TO BE UNITED STATES CIRCUIT JUDGE FOR THE FOURTH DISTRICT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nominations, which the clerk will report.
  The legislative clerk read the nominations of Michael G. McGinn, of 
Minnesota, to be United States Marshal for the District of Minnesota; 
Ralph E. Martinez, of Florida, to be a Member of the Foreign Claims 
Settlement Commission of the United States; and G. Steven Agee, of 
Virginia, to be United States Circuit Judge for the Fourth Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 12:30 shall be equally divided and controlled between the 
chairman and ranking member or their designees.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, the Senate continues to make progress by 
confirming another lifetime appointment to one of our important Federal 
circuit courts. The circuit court nomination we consider today is that 
of Justice G. Steven Agee of Virginia.
  His nomination to a long-vacant circuit court seat is the result of a 
breakthrough with the White House. Even more important, it fills a 
vacancy listed as a judicial emergency on the U.S. Court of Appeals for 
the Fourth Circuit. I commend the Senators from Virginia, Senator 
Warner and Senator Webb, for their work in bringing this forward. It 
was a bipartisan exercise on their part. I thank Senator Cardin of 
Maryland for taking the time to chair the hearing on this nomination.
  It is interesting that Judge Agee's nomination gives us an 
opportunity to be productive even in a Presidential election year, 
where following normal history we tend to be far less productive.
  There has been a string of controversial nominations from Virginia. 
Until recently, President Bush had insisted on confrontation with the 
Senate by nominating Jim Haynes, who contributed to the torture memos, 
Claude Allen, and Duncan Getchell. I think he became aware they were 
not going to go anywhere.
  When Republicans come to the Senate to discuss the pace at which we 
are considering judicial nominations, I am almost amused watching them 
because something is always wrong. It is sort of like Goldilocks. It is 
kind of like Goldilocks in the fairly tale--the porridge is too hot; 
the porridge is too cold. When I schedule hearings and even break into 
my recess where I should be in Vermont and come back because they are 
so insistent that they need to have hearings on this, and I come back 
and hold a hearing for nominees of President Bush, oh, golly, I am 
moving too quickly. They have actually criticized me for doing that. Of 
course, if we slow the pace down, well, then we are criticized for 
moving too slowly. I was thinking of that situation when I was reading 
``Goldilocks'' to one of my grandchildren the other night. Of course, 
``Goldilocks'' is a child's story, and they should not play childish 
games here.
  One thing has been apparent from the outset of the year: My friends 
on the Republican side hope that by ignoring their own history--pocket 
filibustering more than 60 of President Clinton's judicial nominations 
while they were in the majority--that somehow they can rewrite history.
  Democrats, to their credit, have not retaliated. I think of pocket 
filibustering 60 of President Clinton's nominees. But they say, after 
voting one of

[[Page S4436]]

those 60 out of committee, they allowed him to come to a vote on this 
floor. This was a very prominent African-American justice of the 
Missouri Supreme Court, who later became chief justice. It is obvious 
why they let this African-American justice come to a vote on the floor 
of the Senate. Every single Republican, including those Republicans who 
had voted for him in the Senate Judiciary Committee, came on the floor 
in a humiliating gesture and voted down his confirmation. It was one of 
the low marks of this body.
  As I said, we have not retaliated. But also the Democratic majority 
has a responsibility not to push through the confirmation process 
nominations who are there simply to advance a political agenda instead 
of there to maintain the impartiality of our Federal judiciary.
  In fact, in contrast with the Republican Senate majority that more 
than doubled circuit court vacancies during the Clinton administration, 
we have reduced vacancies by nearly two-thirds. We have reduced them in 
nearly every circuit during the Bush administration. With the 
confirmation of Steven Agee today, the Fourth Circuit will have fewer 
vacancies than at the end of the Clinton administration, and that, of 
course, was when the Senate Republican majority pocket filibustered 
five Fourth Circuit nominees. In fact, they refused to consider any 
Fourth Circuit nominees during the last 2 years of President Clinton's 
Presidency.
  Today, we will reduce vacancies among the 13 Federal circuit courts 
throughout the country to 11. That, incidentally, is the lowest number 
of vacancies in more than a decade. When Republican Senators are ready 
to allow us to consider and confirm the President's nominations to fill 
the last two remaining vacancies on the Sixth Circuit, if Republicans 
will allow us to go forward with President Bush's nominees there, we 
can reduce the total number of circuit court vacancies to single digits 
for the first time in decades. So for all the smoke and mirrors on the 
other side, the fact remains that we have succeeded in lowering circuit 
court vacancies to a historically low level.
  Let's take a moment and go to the charts. These are circuit court 
vacancies. For most of the time when President Clinton was President, 
the Republicans were in charge. Look what they did. By their use of 
pocket filibusters, they pushed the number of vacancies in the circuit 
courts from 16 up to 32. Were there nominees for those seats? Of course 
there were, but they were pocket filibustered.
  I use one example, one nomination that was pocket filibustered: Well, 
we don't know if she is really qualified. She is now the dean of the 
Harvard Law School, the most prestigious law school in this country.
  When we came in halfway through the first year of President Bush's 
term, people thought that maybe the Democrats might retaliate and do 
the same thing to him. We did just the opposite. We started bringing 
down the number of circuit court vacancies, and we continued. When I 
became chairman for the first time, in the summer of 2001, we quickly 
and dramatically lowered vacancies. We confirmed 100 nominations in 
only 17 months. We set an all-time record for the Senate being 
controlled by one party and the Presidency by another. We confirmed 100 
nominations in only 17 months. That was with an uncooperative White 
House. And we reduced vacancies by 45 percent.
  Look at the numbers. Look how the vacancies went up when the 
Republicans were in charge with a Democratic President, and when 
Democrats were in charge with a Republican President, they came down. 
It is the Democratic Senate majority that has worked hard to lower them 
in this Congress. We have gone from more than 110 vacancies to less 
than 50. We have reversed course from the days when the Republican 
Senate majority more than doubled circuit vacancies. We have lowered 
the circuit court vacancies that existed when I became chairman of the 
Judiciary Committee in the summer of 2001--32 vacancies--we lowered 
them to 12. Today, we lower it to 11. Of the 178 authorized circuit 
court judgeships, after today's confirmation, only 11 will remain 
vacant. We took the vacancy rate Republicans gave us of 18 percent and 
brought it down to 6 percent. With 166 active appellate judges and 104 
senior status judges serving on the Federal courts of appeals, there 
are 270 circuit court judges. I think that is the most in our history.

  In fact, our work has led to a reduction in vacancies in nearly every 
circuit. Both the Second and Fifth Circuits had circuit-wide 
emergencies due to the multiple simultaneous vacancies during the 
Clinton years with Republicans in control of the Senate. Both the 
Second Circuit and the Fifth Circuit now are without a single vacancy. 
We have already succeeded in lowering vacancies in the Second Circuit, 
the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth 
Circuit, the Tenth Circuit, the Eleventh Circuit, the DC Circuit and 
the Federal Circuit. With the confirmation of Justice Agee, the Fourth 
Circuit will join that list. Circuits with no current vacancies include 
the Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the 
Eleventh Circuit and the Federal Circuit. When we are allowed to 
proceed with President Bush's nominations of Judge White and Ray 
Kethledge to the Sixth Circuit, it will join that list of Federal 
circuits without a single vacancy.
  Less than 2 weeks ago, President Bush nominated Judge Glen E. Conrad 
to the second and final Virginia vacancy on the Fourth Circuit. With 
the support of Senator Warner and Senator Webb, we may still have time 
this year to proceed to that nomination and resolve another 
longstanding vacancy, further reducing vacancies on the Fourth Circuit 
and on Federal circuit courts in general.
  I remain determined to prioritize progress and focus the Judiciary 
Committee on those nominations on which we can make progress and, in 
particular, on those in which the White House has finally begun to work 
with the Senate.
  However, when I tried to expedite consideration of two Sixth Circuit 
nominations of President Bush's this month, all I got was criticism 
from the Republican side of the aisle. In fact, at the hearing on May 
7, Republican Senators all but attacked one of the President's 
nominees. Senator Brownback publicly apologized for his actions at the 
hearing, and I commend him for doing so. His apology was in the best 
tradition of the Senate.
  Of course, last Wednesday, the same Republicans who were saying hurry 
up with these nominees sent scores of time-consuming questions to the 
nominees, all but ensuring the nominees cannot be considered this 
month. We will not hear them until they answer the questions. We will 
get the ABA reports.
  Disputes over a handful of controversial judicial nominations have 
wasted valuable time that could be spent on the real priorities of 
every American. I have sought, instead, to make progress where we can. 
The result is the significant reduction in judicial vacancies. By 
turning today to the Agee nomination, we can make additional progress.
  The alternative is to risk becoming embroiled in contentious debates 
for months and thereby foreclose the opportunity to make progress where 
we can. The most recent controversial Bush judicial nomination took 
5\1/2\ months of debate after a hearing before Senate action was 
possible. We also saw what happened during the last several months of 
the last Congress, which was not even a Presidential election year. 
There were many hearings on many controversial nominations. That 
resulted in a great deal of effort and conflict but not in as many 
confirmations as might have been achieved. I prefer to make progress 
where we can and to work together to do so.
  I am sure there are some who prefer partisan fights designed to 
energize a political base during an election year, but I do not. I am 
determined to prioritize progress, not politics, and focus the 
committee on those nominations on which we can make progress. The 
Republican Senate majority during the last 5 years of the Clinton 
administration more than doubled vacancies on our Nation's circuit 
courts, as they rose from 12 to 26. Those circuit vacancies grew to 32 
during the transition to the Bush administration. The statistics are 
worth repeating: we have been able to reverse that trend and reduce 
circuit vacancies by almost two-thirds. Today there are fewer circuit 
court vacancies than at any time since

[[Page S4437]]

the 1996 session. In fact, our work has led to a reduction in vacancies 
in nearly every circuit. We are heading toward reducing circuit court 
vacancies to single digits for the first time in decades.
  I have been speaking during the last several weeks about the progress 
we are making in repairing the terrible damage done to the confirmation 
process and about our progress in reducing judicial vacancies.
  We can do a number of things. We can work as the White House finally 
did after three strikes; they finally worked with the Senators from 
Virginia, and we have a circuit court of appeals judge going through. 
There are other circuits where they could do the same thing, work with 
Republican Senators, work with Democratic Senators, and they could get 
them through. If they want to simply continue and have judges who are 
obviously nominated to carry out a political agenda, obviously 
nominated to politicize the Federal court, these people are not going 
to go through. What a waste of time. Why not realize that the American 
people do not want judicial nominations rooted in partisan politics? 
They want Federal judges who understand the importance of an 
independent judiciary. Our independent courts are a source of America's 
strength, endurance, and stability. Our judicial system has been the 
envy of the world. The American people expect the Federal courts to be 
impartial forums where justice is dispensed without favor to the right 
or the left or to any political party or faction. The only lifetime 
appointments in our government, these nominations matter a great deal. 
The Federal judiciary is the one arm of our government that should 
never be political or politicized, regardless of who sits in the White 
House.
  With the Agee confirmation today, the sixth so far this year and the 
second circuit court confirmation, the Senate is ahead of the pace the 
Republican Senate majority established during the 1996 session, a 
Presidential election year, in which no judicial nominations were 
considered or confirmed by the Senate before July. That is right--today 
we stand six confirmations, including two circuit court confirmations, 
ahead of the pace Republicans set in the 1996 session. In fact, with 
the Agee confirmation we are already two circuit court confirmations 
beyond the total the Republican Senate majority allowed for that entire 
session, when they refused to proceed on any circuit court nominations.
  So today we demonstrate progress about which I have been speaking and 
on which I have been working. I continue in this Congress and I will 
continue with the new President in the next Congress to work with 
Senators from both sides of the aisle to guarantee we have nonpartisan 
judges.
  Justice Agee has 7 years of judicial experience on the State bench as 
a Justice on the Supreme Court of Virginia and a former judge on the 
Court of Appeals of Virginia. For more than 20 years prior to his 
judicial service, Justice Agee worked in private practice in the 
Commonwealth of Virginia. He was elected by the people of Virginia as a 
Delegate to the Virginia General Assembly where he served for over a 
decade. Justice Agee graduated from Bridgewater College with a B.A. and 
he received his J.D. from the University of Virginia School of Law. He 
received an L.L.M. degree in taxation from New York University School 
of Law.
  I congratulate Justice Agee and his family on his confirmation today, 
and I look forward to making further progress by working together on 
judicial nominations.
  The Virginia and Michigan vacancies on the Fourth and Sixth Circuits, 
respectively, have proven a great challenge. I want to commend Senator 
Warner and Senator Webb, and Senator Levin and Senator Stabenow for 
working to end these impasses. I have urged the President to work with 
the Virginia and Michigan Senators and, after several years, he finally 
has. During the last 3 months, our extensive efforts culminated in 
significant developments that can lead to filling two Virginia 
vacancies on the Fourth Circuit and two Michigan vacancies on the Sixth 
Circuit, three of which have been classified as judicial emergencies.

  This accomplishment stands in sharp contrast to the actions of Senate 
Republicans who refused to consider any of the highly qualified 
nominations to the Fourth Circuit Court of Appeals during the last 3 
years of the Clinton administration or to consider any of the highly 
qualified nominations to the Sixth Circuit Court of Appeals during the 
last 2 years of the Clinton administration. The Republican Senate 
majority left open five vacancies on the Fourth Circuit and four on the 
Sixth Circuit at the end of the Clinton administration.
  The Fourth Circuit is a good example of how much time and effort we 
have wasted on controversial nominations by President Bush. For 
example, there was the highly controversial and failed nomination of 
William ``Jim'' Haynes II to the Fourth Circuit. As General Counsel at 
the Department of Defense, he was the architect of many discredited 
policies on detainee treatment, military tribunals, and torture. Mr. 
Haynes never fulfilled the pledge he made to me under oath at his 
hearing to supply the materials he discussed in an extended opening 
statement regarding his role in developing these policies and their 
legal justifications.
  The Haynes nomination led the Richmond Times-Dispatch to write an 
editorial in late 2006 entitled ``No Vacancies,'' about the President's 
counterproductive approach to nominations in the Fourth Circuit. The 
editorial criticized the administration for pursuing political fights 
at the expense of filling vacancies. According to the Times-Dispatch, 
``The president erred by renominating . . . and may be squandering his 
opportunity to fill numerous other vacancies with judges of right 
reason.''
  The Times-Dispatch editorial focused on the renomination of Mr. 
Haynes, but could just as easily have been written about other 
controversial Fourth Circuit nominees.
  The President insisted on nominating and renominating Terrence Boyle 
over the course of 6 years to a North Carolina vacancy on the Fourth 
Circuit. This despite the fact that as a sitting U.S. district judge 
and while a circuit court nominee, Judge Boyle ruled on multiple cases 
involving corporations in which he held investments.
  The President should have heeded the call of North Carolina Police 
Benevolent Association, the North Carolina Troopers' Association, the 
Police Benevolent Associations from South Carolina and Virginia, the 
National Association of Police Organizations, the Professional Fire 
Fighters and Paramedics of North Carolina, as well as the advice of 
Senator John Edwards. Law enforcement officers from North Carolina and 
across the country opposed the nomination. Civil rights groups opposed 
the nomination. Those knowledgeable and respectful of judicial ethics 
opposed the nomination. This President persisted for 6 years before 
withdrawing the Boyle nomination.
  I mention these ill-advised nominations because so many Republican 
partisans seem to have forgotten this recent history and why there are 
continuing vacancies on the Fourth Circuit. The efforts and years 
wasted on President Bush's controversial nominations followed in the 
wake of the Republican Senate majority's refusal to consider any of 
President Clinton's Fourth Circuit nominees. All four nominees from 
North Carolina to the Fourth Circuit were blocked from consideration by 
the Republican Senate majority. These outstanding nominees included 
U.S. District Court Judge James Beaty, Jr., U.S. Bankruptcy Judge J. 
Richard Leonard, North Carolina Court of Appeals Judge James Wynn, and 
Professor Elizabeth Gibson. The failure to proceed on these nominations 
has yet to be explained. Had either Judge Beaty or Judge Wynn been 
considered and confirmed, he would have been the first African-American 
judge appointed to the Fourth Circuit.
  In contrast, I worked with Senator Edwards to break through the 
impasse and to confirm Judge Allyson Duncan of North Carolina to the 
Fourth Circuit when President Bush nominated her. I worked to reduce 
Federal judicial vacancies in North Carolina by confirming three judges 
last year Judge Schroeder, Judge Reidinger and Judge Osteen. Previously 
during the Bush administration, I cooperated in the confirmation of 
Judge Whitney, Judge Conrad, Judge Dever, Judge McKnight, and Judge 
Flanagan. That totals nine Federal judges in North Carolina, including 
a Fourth Circuit judge, during

[[Page S4438]]

the Bush Presidency. By contrast, during the entire eight years of the 
Clinton administration, only one district court judge was allowed to be 
confirmed in North Carolina.
  We have also made progress in South Carolina. Senator Graham follows 
Senator Thurmond as South Carolina's representative on the Judiciary 
Committee. Despite the controversy that accompanied the nomination of 
Judge Dennis Shedd, and my own opposition to it, I presided as chairman 
when we considered that nomination and when the Senate granted its 
consent. I also presided over consideration of the nomination of Terry 
Wooten. More recently, we acted favorably on the nominations of Harvey 
Floyd and Robert Bryan Harwell.
  While I chaired the Senate Judiciary Committee from the summer of 
2001 to the end of 2002, I presided over the consideration and 
confirmation of three Fourth Circuit judges nominated by President 
Bush. All together, President Bush has already appointed five judges to 
the Fourth Circuit. By contrast, President Clinton was allowed by 
Senate Republicans to appoint three and left office with five vacancies 
existing on that court.
  Of course, during the Clinton administration, Republican Senators 
argued that the Fourth Circuit vacancies did not need to be filled 
because the Fourth Circuit had the fastest docket time to disposition 
in the country. If the Agee nomination is confirmed, as I expect it 
will be, the Fourth Circuit will have fewer vacancies than it did when 
Republicans claimed no more judges were needed.
  Judge Agee will succeed Judge Michael Luttig, who retired a few years 
ago to take a more lucrative position in the private sector. Judge 
Luttig was known as a very conservative judge on the Fourth Circuit. He 
was involved in the Padilla case a few years ago and condemned the 
shifting legal positions of the Bush administration in that case 
involving an American citizen. He noted that the Bush administration's 
maneuvering had consequences ``not only for the public perception of 
the war on terror but also for the government's credibility before the 
courts in litigation ancillary to that war.'' Judge Luttig went on to 
note that the administration's behavior in ``yield[ing] to expediency'' 
left an impression that ``may ultimately prove to be [at] substantial 
cost to the government's credibility.'' In those independent 
observations, Judge Luttig performed a public service.
  I have likewise urged the President to work with the Michigan 
Senators, and, after 7 years, he finally has. Last month, our extensive 
efforts culminated in a significant development that, unless 
partisanship interferes, can lead to filling the last two vacancies on 
the Sixth Circuit before this year ends. This accomplishment stands in 
sharp contrast to the actions of Senate Republicans who refused to 
consider any nomination to the Sixth Circuit Court of Appeals during 
the last 3 years of the Clinton administration. Ultimately, the 
Republican-led Senate left open four vacancies on that circuit.
  Mine has been a different approach and one that has led to 
significant progress. I am glad to see that progress continue today 
with our confirmation of the nomination of Justice G. Steven Agee of 
Virginia to the U.S. Court of Appeals for the Fourth Circuit.
  Mr. President, I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is 
recognized.
  Mr. SPECTER. Mr. President, the nomination of Justice Steven Agee is 
pending for the Court of Appeals for the Fourth Circuit. Justice Agee 
has an outstanding record; he has been a judge on the Court of Appeals 
for Virginia for 2 years, from 2001 to 2003, and a Justice on the 
Supreme Court from 2003 until the present time.
  The record of Michael G. McGinn, to be a U.S. Marshal for the 
district of Minnesota, is also outstanding.
  The record of Ralph Eduardo Martinez, to be a Commissioner for the 
Foreign Claims Settlement Commission, also exceptional, is notable in 
part because his brother is Senator Mel Martinez.
  I ask unanimous consent that their resumes be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Michael G. McGinn


              United States Marshal, District of Minnesota

       Birth: 1947; St. Paul, Minnesota.
       Legal Residence: Minnesota.
       Education: B.A., University of St. Thomas, 1979.
       Experience: St. Paul Police Department, St. Paul, 
     Minnesota, 1968-1998: Police Officer, 1968-1975; Sergeant, 
     1975-1980; Lieutenant, 1980-1984; Captain, 1984-1992; 
     Commander, 1992-1998. Independent Contractor, McGinn & 
     Associates, 1999. State Senator, Minnesota State Senate, 
     2003-2006; Assistant Minority Leader, 2005-2006.
       Selected Activities: Board Member, Boys & Girls Club of St. 
     Paul, 1997-1998. Board Member, St. Paul Police Foundation, 
     2006-Present. Board Member, Minnesota State Board of Public 
     Defense, 2007-present.
       Honors & Awards: Team Achievement Award, City of St. Paul, 
     1995. Outstanding Legislator, Minneapolis Police Federation, 
     2004. Seven Department Letters of Commendation. Eight Unit 
     Citations.
                                  ____


                    Rafael (Ralph) Eduardo Martinez


           Commissioner, Foreign Claims Settlement Commission

       Birth: 1950; Sagua La Grande, Villa Clara, Cuba.
       Legal Residence: Florida.
       Education: J.D., Florida State University College of Law, 
     1976. B.S., University of Florida, 1973.
       Employment: Attorney, Gurney, Gurney & Handley, 1976-1981. 
     Shareholder, McEwan, Martinez & Dukes, PA, 1981-Present. 
     Chairman, CNL Bank, 2003-Present.
       Selected Activities: U.S. Public Delegate to the 57th UN 
     General Assembly, 2003. Board of Trustees, University of 
     Richmond, 2003-2007.
       Honors & Awards: Award of Merit, Orange County Bar 
     Association, 1991, 1992. ``John Sterchi ``Lifetime 
     Achievement Award, Central Florida YMCA, 2000.
                                  ____


                             G. Steven Agee


         United States Court of Appeals for the Fourth Circuit

       Birth: 1952, Roanoke, Virginia.
       Legal Residence: Virginia.
       Education: B.A., Bridgewater College, 1974. J.D., 
     University of Virginia School of Law, 1977. LL.M., New York 
     University School of Law, 1978.
       Employment: Associate, Martin, Hopkins & Lemon, P.C., 1977-
     1979. Associate, Rocovich & Dechow, P.C., 1979-1980. 
     Shareholder, Osterhoudt, Ferguson, Natt, Aheron and Agee, 
     P.C., 1980-2000. Member, Virginia House of Delegates, 1982-
     1994. Judge, Court of Appeals of Virginia, 2001-2003. 
     Justice, Supreme Court of Virginia, 2003-Present.
       Military Service: United States Army Reserve, Judge 
     Advocate General's Corps, 1986-1997.
       Selected Activities: Member, Virginia Criminal Sentencing 
     Commission, 1997-2000. Board of Trustees, Bridgewater 
     College, 1988-Present. Member, Salem Rotary Club, 1984-
     Present; Board of Directors, 1995-1996. Board of Directors, 
     Bradley Free Clinic, 1988-Present. Recipient, Outstanding 
     Legislator Award, Virginia Chamber of Commerce, 1993. 
     Recipient, Outstanding Young Alumnus Award, Bridgewater 
     College, 1986. Member, Virginia State Bar, 1977-Present; 
     Member, Board of Governors, Education of Lawyers Section, 
     2007-Present. Member, St. Paul's Episcopal Church, 1995-
     Present; Member of Vestry, 1998-2000.
       ABA Rating: Unanimous ``Well Qualified''.

  Mr. SPECTER. Mr. President, I will use the balance of my time on the 
pending issue to discuss the agreement made between the Democratic and 
Republican leaders to have three circuit judges confirmed before 
Memorial Day. The concerns, which I expressed at some length yesterday, 
but will summarize very briefly today, are that there simply has been 
insufficient time to process the nominees the majority chose according 
to standard Committee procedures. I refer specifically to the 
nomination of Michigan Court of Appeals Judge, Helene White, who was 
nominated on April 15, with only 22 days elapsing between the time of 
her nomination and her hearing.
  The average time between a circuit court nominee's nomination and 
hearing has been 162 days during the Bush presidency. When a hearing 
was scheduled for Peter Keisler 33 days after his nomination, there was 
an objection made by all of the Democratic Senators on the Committee. 
This happened in 2006. At Mr. Keisler's hearing Senator Schumer had 
this to say:

       Let me reiterate some of the concerns we expressed about 
     proceeding so hastily on this nomination. First, we barely 
     had time to consider the nominee's record. Mr. Keisler was 
     named to the seat 33 days ago, so we are having this hearing 
     with astonishing and inexplicable speed. The average time for 
     a nomination to hearing for the last seven nominees to that 
     court is several times that long.

  Well, the nomination of Peter Keisler was much easier with respect to 
the

[[Page S4439]]

pending record than the record for Judge White who has been on the 
bench for many years.
  First, an issue arose with Judge White because her questionnaire was 
incomplete. For example, she did not provide reversed opinions that had 
not been published, as required. During the course of the hearing, 
there was considerable concern about what Judge White had done while 
sitting on the Michigan court with respect to the soundness of her 
judicial scholarship. Then, yesterday, an objection was raised by 
Senator Reid that so many questions were submitted for Judge White. 
However, the fact is, the number of questions is relatively modest by 
comparison--73 questions for Judge White. Last year, Judge Jennifer 
Elrod, nominee to the Fifth Circuit, had 108 questions submitted by the 
Democrats. Last year, Judge Leslie Southwick had 80 questions submitted 
by Democrats. Grace Becker, a nominee for the Department of Justice, 
Civil Rights Division, had 250 questions submitted by the Democrats. 
These are just a few examples. So the number Judge White received is 
relatively modest in comparison to others.
  Next, you have the situation that there is the absence of the report 
of the American Bar Association, which is still not in on Judge White, 
and is not expected until the end of the month.
  It is unprecedented to have a hearing on a circuit judge without 
having the ABA report in hand--absolutely unprecedented.
  Yesterday, I spoke at some length about the importance of a court of 
appeals judge. The courts of appeals are the last appeal before the 
Supreme Court, meaning that in virtually all of their cases, their 
decisions are final. If there is a 2-to-1 decision and Judge White is 
one of the two in the majority, then that is the law, and it has very 
profound effects. So, it is a very serious obligation of the Senate, 
under our constitutional responsibility, to advise and consent, and to 
be sure we take adequate time for deliberation on the matter.
  The concern that I expressed yesterday, and will comment on very 
briefly today, is that there were other nominees waiting who could have 
been processed in this time without this rush to judgment and without 
this unprecedented practice. For example, Peter Keisler has had a 
hearing and has been waiting over 690 days for a committee vote. He 
could have been processed without this rush to judgment. Judge Conrad 
has been waiting for 308 days for a hearing and could have been 
processed without this rush to judgment. Steven Matthews has been 
waiting 257 days and could have been processed without this rush to 
judgment.
  There were ample nominees available. The majority did not have to 
proceed with Judge White's nomination. Yesterday, the Senator from 
Nevada commented that nobody presumed to tell Arlen Specter, when I was 
chairman of the Judiciary Committee, what the scheduling should be or 
what the order of business should be. But, as I pointed out at some 
length yesterday, the White House wanted to have the hearing on Chief 
Justice Roberts starting in August of 2005. I consulted with Senator 
Leahy in advance. He objected to it. I thought he was right. I, 
frankly, thought he was right in advance of consulting him, but I still 
consulted him. The hearing didn't start until September. Similarly, the 
White House wanted to have the hearing of Justice Alito concluded 
before Christmas. I consulted with Senator Leahy again, and Justice 
Alito's hearing started in January. Later, the President told me 
personally that he thought my judgment was right.
  The point I raise is--there was always consultation when I was 
chairman. But, on these matters, regrettably, there has been none. It 
is still my hope that we will be able to find some way through this 
morass. Senator Leahy and I have had a very good record of working on a 
bipartisan basis. It is my hope that we will establish a protocol for 
consideration of judicial nominees that so many days after a 
nomination, there will be a hearing, then so many days later, there 
will be action by the Judiciary Committee, and then so many days later, 
there will be floor action. That protocol would prevent this morass, 
which has engulfed this Senate. I look forward to working with Senator 
Leahy to accomplish that.
  On the state of the record, I feel constrained to say that the facts 
speak for themselves. Processing Judge White in this manner, breaking 
all of the precedents and rules, is simply not the way to conduct the 
business of the Senate. The deal could have been completed with the 
other nominees who are waiting in the wings. That is the way the Senate 
ought to function.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Maryland is 
recognized.
  Mr. CARDIN. Mr. President, I yield myself 3 minutes.
  First, let me express my support for Judge Agee's confirmation. I had 
the opportunity to chair Judge Agee's confirmation hearing. I thank 
Senator Warner and Senator Webb for the manner in which they worked 
with the White House to get an appointment that could go through the 
confirmation process, and one which I hope my colleagues will support.
  I support Judge Agee because of his experience. I am pleased he has 
legislative experience. I think that will help him on the court. He 
respects the rule of law and precedents, and he believes in the 
independence of the judiciary. He has expressed concerns at times with 
political interference within the judicial branch of Government. I 
think he is well qualified to be confirmed to the circuit court.
  Let me comment very briefly on the comment made by my colleague, 
Senator Specter. Let me point out that Judge White was first appointed 
on January 7, 1997. She then waited 4 years for action in this body and 
received none because of being held up by the Republicans. So when we 
say we are ``rushing to judgment,'' I think waiting 4 years without any 
action is not rushing to judgment. It seems as though the majority 
leadership is being criticized at times for moving too fast and also 
too slow. You cannot have it both ways.
  In regard to circuit court appointments, there have been three I have 
opposed--two because of lack of experience, and one because of his 
record. I was joined by other Members who opposed those nominations. 
None of us sought to delay those confirmation votes. In fact, on one, 
the Republican leadership asked that we hold the confirmation vote in 
committee until they could get some more support.
  So I think you should be judged by the record. Let me point out the 
record very clearly. If you look at the record on vacancies in circuit 
courts, starting with President Clinton, there was 17. At the end of 
his term, it grew to 32. The record by the Democrats has been 
consistent to reduce that so that we now have 12 vacancies. I think the 
record speaks for itself.
  Obviously, we want to get as many judges confirmed as possible. I 
hope we can work in a bipartisan manner to make sure these vacancies 
are filled. If the White House would work with the local Senators and 
with us, I think we can get more confirmations to our circuit courts.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New York is 
recognized.

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