[Congressional Record Volume 154, Number 105 (Tuesday, June 24, 2008)]
[Senate]
[Pages S5993-S6003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S5993]]
                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF HELENE N. WHITE, OF MICHIGAN, TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE SIXTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the nomination, which the 
clerk will report.
  The assistant legislative clerk read the nomination of Helene N. 
White, of Michigan, to be United States Circuit Judge for the Sixth 
Circuit.
  Mr. ISAKSON. Madam President, I ask unanimous consent that the time 
during the quorum be equally divided between the parties, and I suggest 
the absence of a quorum.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Lautenberg). Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senate is presently in executive session.
  Mr. LEAHY. Am I correct that we are now on a judicial nomination?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEAHY. Is there a time agreement?
  The PRESIDING OFFICER. There is 4 hours equally divided. But the 
Senate has used some of that time in the quorum call.
  Mr. LEAHY. I yield myself such time as I may need in the time 
allotted to the Senator from Vermont.
  Today, the Senate is turning to a package of three nominations for 
lifetime appointments to the Federal bench in Michigan, including 
President Bush's nominations of Judge Helene White and Raymond 
Kethledge to fill the final two vacancies of the Sixth Circuit Court of 
Appeals.
  These nominations are the result of the hard work of Senators Levin 
and Stabenow, who consulted with President Bush to end a decade-long 
impasse in filling vacancies on the Sixth Circuit. During that time, 
Senate Republicans had blocked President Clinton's nominees to that 
circuit, leaving open four vacancies.
  I am worried that some on the other side seem intent on preventing us 
from making this progress. Judge White's nomination should be a 
consensus nomination. Judge White was nominated by a Democratic 
President and by a Republican President. When the most partisan 
President in modern history, one responsible for sending us so many 
divisive nominations, renominates a Clinton judicial nominee, it 
actually should send a signal.
  Nevertheless, her nomination drew criticism from the Republican 
leader and opposition from Republicans on our committee. After I 
expedited a hearing on the Michigan nominees, figuring that 10 years of 
waiting might have been enough, Republicans objected that we were 
moving too fast. They peppered her with more questions than any nominee 
of President Bush that I can recall. At our committee markup, 
Republicans made the wildly dumbfounding claims that she is not 
experienced. But after more than 25 years as a Michigan State court 
judge, including 15 as a State appellate court judge, she is a more 
experienced judicial nominee than many of those they previously 
supported.
  It is interesting that Republicans did not raise this concern when 
they were supporting far less experienced nominees such as Jennifer 
Elrod and Catharina Haynes of Texas to fill circuit court vacancies. In 
fact, Judge White has been on the appellate bench longer than Mr. 
Kethledge, the other Sixth Circuit nominee, has been out of law school.
  It is ironic that last week several Republican Senators held a press 
conference with representatives from right wing groups organized by a 
group calling itself Concerned Women for America. It is Republican 
opposition to a woman nominee that has been holding up the progress of 
filling judicial vacancies. Now this woman nominee they seemed 
concerned about is described on President Bush's White House Web site 
as ``an experienced and highly qualified judge, who is known for her 
intellect, work ethic, and demeanor.'' She has been given the highest 
rating for the position by the ABA. Yet her extensive experience, which 
is far more than the experience of many supported by my friends on the 
other side of the aisle, does not seem to meet the sudden last-minute 
standards set by Republican members of the committee.
  As a state judge, she has not been called upon to consider and apply 
certain Federal statutes. That would be the same with thousands of 
state judges all over the country. It is understandable. But if you 
characterize her because of that as unqualified, that would turn back 
the clock to before the confirmation of Justice Sandra Day O'Connor, 
who had been a State legislator and a State judge. Justice O'Connor was 
not experienced in deciding Federal law issues before confirmation as 
the first woman on the U.S. Supreme Court. I think we should all agree 
she nonetheless served the Nation well in that capacity. And I agreed 
with her chief sponsor in this body, my friend and former colleague, 
Barry Goldwater of Arizona, and I was proud to join with him in voting 
for Sandra Day O'Connor.
  It is also ironic that week after week, as the Senate continues to 
make progress in filling judicial vacancies, we hear a steady stream of 
grumbling from Republicans whose main priorities now seem to be to 
prevent the Senate and the Judiciary Committee from addressing the 
priorities of ordinary Americans. You would almost think that gasoline 
has not skyrocketed as the dollar has collapsed in value worldwide 
because of the huge debt caused by the Iraq war. They do not seem to 
realize that some of the typical Americans in my State of Vermont and, 
I suspect, the Presiding Officer's State of New Jersey, are finding it 
very hard to buy gas to go to work or pick up their children after 
school or do their grocery shopping or visit an ailing parent. You 
would not think these were important matters when you hear of the 
priorities on the other side. You would not be aware there is a huge 
crisis in the housing industry, where people are losing houses all over 
this country, hard-working Americans who finally had the American dream 
of owning their own home and are now losing it. You would think that 
was not happening by what we hear from the other side.
  Republicans are now regularly objecting to hearings before the 
Judiciary Committee. They seem disappointed when we conclude hearings 
within the first 2 hours of the Senate's day and they cannot disrupt 
them.
  They objected to Senator Feinstein completing an important hearing on 
interrogation techniques used against detainees. It is almost as if, if 
we can block that hearing from happening, these terrible things never 
would have happened because Republicans foreclosed the ability of 
Americans to hear what went on in those hearings.
  They objected to a hearing highlighting the impact of Supreme Court 
decisions on the daily lives of all Americans even though that meant 
cutting short the testimony of two brave women victimized by such a 
decision, Pennsylvanians who came to Washington to tell how badly they 
had been hurt by these decisions. The Republicans effectively silenced 
them to make sure they could not speak and could not testify because 
they said we should not have these Judiciary Committee meetings. So 
these two Pennsylvanians had to go back home unable to finish telling 
their story.
  And a few days ago, the Republican minority objected to a hearing 
that had been requested by Judiciary Committee Republicans to examine 
the need for additional Federal judgeships throughout the country. This 
now all too familiar pattern is childish and serves no good purpose.
  We will see later this week whether they allow Senator Biden to 
proceed to chair a hearing before the Subcommittee on Crime and Drugs 
concerning fugitives from justice.
  Regrettably, these obstructionist tactics from the other side of the 
aisle are likely to continue without regard to the real priorities of 
the struggling Americans I spoke about, the voters who have elected 
every Senator to serve. Their priorities are being pushed aside.
  We read last week another story about the dissatisfaction of right 
wing

[[Page S5994]]

activists and their pressuring of the Republican leadership in the 
Senate. We witnessed their response this month as they forced a reading 
of a substitute amendment to critical climate change legislation. They 
did this for hours and hours, thereby shutting down the work of the 
Senate.
  Two weeks ago, we saw a story in Roll Call that included the headline 
``Divided GOP Settles on a Fight Over Judges.'' That headline reminded 
me of the famous Wolfowitz quote about why the Bush administration 
settled on supposed weapons of mass destruction as the justification 
for attacking Iraq even though they knew there were no weapons of mass 
destruction--it was the rationale they could agree on. They all knew 
they wanted to attack Iraq, they knew they did not have the facts to 
attack Iraq, so they found a cover story they could use. And thousands 
of lives and $1 trillion later they say: Oops, sorry, no weapons of 
mass destruction, but, boy, we all agreed on the rationale.
  The report in Roll Call included discussion by Republican Senators of 
the politics that fuels their efforts to appeal to ``conservative 
activists'' and ``ignite base voters'' and find an issue that ``serves 
as a rare unifier for Senate Republicans'' and their Presidential 
nominee. That piece mirrored an earlier article in the Washington 
Times, reporting how this is all part of an effort to bolster Senator 
McCain's standing among conservatives.
  This political song-and-dance would not be so bad if it were not 
impacting the integrity and the independence of the Federal judiciary, 
something that in the past both Republicans and Democrats tried to 
protect.
  I had suspected that much of this complaining was because Republican 
partisans were looking for an issue to energize their political base 
during an election year. The reports from the media outlets have 
confirmed my suspicions. I wonder if they realize that liberals, 
conservatives, Republicans, and Democrats are suffering from having to 
pay these outrageous gas prices. Wouldn't it be better if they worked 
on that?

  Americans, Republicans and Democrats, in all parts of this country, 
are seeing their houses disappear and the value they had hoped for 
their retirement gone. Wouldn't addressing that be something better on 
which to unite America?
  On this date in the 1996 session, another Presidential election year 
but one in which a Republican Senate majority was considering judicial 
nominees of a Democratic President, do you know how many judicial 
nominees had been confirmed? The answer is easy: None, not a single 
one. That was a session that ended without a single circuit court judge 
being confirmed.
  By contrast, if Republicans will allow the confirmation of Judge 
White to the Sixth Circuit, we will have today completed the 
confirmations for 12 judges, including 4 circuit court judges, so far 
this Presidential election year, compared to 1996, when none had been 
confirmed at this point.
  In addition to today's three nominees, two more judicial nominees 
already reported by the Senate Judiciary Committee are pending on the 
Senate's executive calendar. I have placed four more on the Judiciary 
Committee business agenda for later this week.
  It is perhaps the ultimate irony that here, as the Democratic 
leadership of the Senate takes the extraordinary step of proceeding to 
two more of President Bush's circuit court nominees in June of a 
Presidential election year, I am being criticized by Republicans for, 
of all things, moving too quickly. I had hoped, in light of the 
discussion between the majority leader and the Republican leader 
earlier this spring, to have concluded Senate action on this package of 
Michigan nominees more quickly. I tried to have these votes in May 
before the Memorial Day recess, but we were thwarted in that effort by 
Republican concerns about expediting consideration of these Bush 
nominees. So what we might have done in May, we are now having to do in 
June.
  It reminds me a little bit of the Republican antics and shenanigans 
earlier this year that cost us progress in February. Rather than making 
progress, Republicans refused to make a quorum in the Judiciary 
Committee that entire month so no judicial nominees would come out in 
March, and then in March, they could give speeches.
  So let there be no mistake. If Judge White is confirmed, we will have 
broken a 10-year impasse on the Sixth Circuit. By contrast, the 
Republican Senate majority during the Clinton years refused to consider 
President Clinton's Sixth Circuit nominees for 3 years and left four 
vacancies on that court.
  When, as chairman, I scheduled a hearing and vote for Judge Julia 
Smith Gibbons of Tennessee and Judge John Marshall Rogers of Kentucky, 
we were able to confirm the first new judges to the Sixth Circuit in 5 
years. The others had been pocket-filibustered by Republicans. I said 
we would not do the same thing to them, and we did not. We moved 
quickly on President Bush's nominees to that circuit. The confirmations 
of Judge White and Mr. Kethledge of Michigan would complete the process 
by filling the two remaining vacancies on the Sixth Circuit.
  Judge White was first nominated by President Clinton to a vacancy on 
the Sixth Circuit more than 11 years ago, but the Republican-led Senate 
refused to act on her nomination. She waited in vain for 1,454 days for 
a hearing before President Bush withdrew her nomination in March 2001. 
Hers was 1 of more than 60 qualified judicial nominees pocket-
filibustered by Republicans. This year, President Bush reconsidered and 
renominated her, and I applaud President Bush for doing so. He deserves 
credit for trying to close the door on a sorry chapter. I commend the 
President for doing it and for what he has said on his White House Web 
site about Judge White's nomination. I hope the Senate will follow the 
example of President Bush and confirm Judge White to one of the last 
two vacancies on the Sixth Circuit.
  The Michigan vacancies on the Sixth Circuit have proven a great 
challenge. I commend the senior Senator from Michigan, chairman of the 
Senate Armed Services Committee, Senator Levin, and his outstanding 
colleague, Senator Stabenow, for working to end years of impasse. I had 
urged the President to work with the Michigan Senators. After 7 years, 
he now has.
  We have come a long way since I became chairman in 2001 when the 
Sixth Circuit was in turmoil because Republicans had blocked 
nominations for many years. Today we complete that progress by 
confirming Judge White and Raymond Kethledge.
  I yield the floor and retain the remainder of my time. How much time 
remains to the Senator from Vermont?
  The PRESIDING OFFICER. There is 1 hour 32 minutes.
  Mr. LEAHY. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, we are moving forward today on the votes 
for confirmation of three Federal judges. Among the many very heavy 
responsibilities of the Senate, the confirmation process ranks very 
high. Under our system of government, we give to the judicial branch 
the responsibility of interpreting the Constitution and establishing 
the rule of law. That has broad implications. It means the courts 
render decisions where one citizen has a claim against another, which 
goes to court. It means a claim when the government and a citizen have 
a controversy which is to be settled by an impartial judicial 
arbitrator. It also involves some of the historic constitutional 
confrontations, one of which we will have later this week on the 
Foreign Intelligence Surveillance Act. Where does the Article II power 
of the President end as Commander in Chief, and where does the Article 
I power of the Congress of the United States establish itself under 
Article I?
  It is a very, very high calling. When the framers adopted the 
Constitution, Article I was given to the Congress. Article II to the 
executive branch and Article III to the judicial branch. Later, Chief 
Justice Marshall, in effect, rewrote the order of priority. I think if 
the Constitution were to be rewritten today, the judicial branch would 
be No. 1, because the judicial branch has taken over the 
responsibility, for a variety of reasons, for deciding all of the 
cutting edge questions.
  We have had a great deal of focus of attention on the confirmation 
process. This attention usually happens when Supreme Court nominations 
are involved. Then, in the major committee hearing rooms, Senators are 
all at

[[Page S5995]]

their desks. There are not too many Senators at their desks here today. 
In fact, I don't see anybody at their desk here today, except for the 
Presiding Officer, which is not exactly his desk. It is the vice 
president's desk. But, Senator Lautenberg from New Jersey looks 
comfortable in the position. We have had, during the confirmation 
process of Chief Justice Roberts and Associate Justice Alito, seen the 
Senate at its best--avoiding the controversy, avoiding the 
partisanship, and moving forward in dignified hearings.
  As I have said before--and it is worth repeating--I compliment the 
distinguished chairman of the Judiciary Committee for his courageous 
stand in voting for Chief Justice Roberts. Chief Justice Roberts was 
confirmed by a vote of 78 to 22. Counting the Independent vote with the 
Democrats, a majority of the Democrats voted in favor of Chief Justice 
Roberts, and it was a good, unifying symbol. We moved through that 
process where there had been some doubt as to how the Senate would 
perform, a doubt which was occasioned by the very bitter infighting, 
which characterized the Senate in 2003, 2004, and 2005, when we had the 
controversy with the filibuster by one side and the threat to invoke a 
new rule of cloture with the so-called constitutional or nuclear 
option.
  I have the pleasure of having my 14-year-old granddaughter with me 
this week. She just graduated from the eighth grade and is spending a 
week as an intern in the Senate. It may be a little early for the job. 
Her father spent 6 weeks with Senator Hugh Scott many years ago when he 
was 17. But, in going over the day's itinerary, I sought to explain to 
my granddaughter, Silvia Specter, what a confirmation is. She is 
watching, with more interest, the activities of the Senate today 
because she is onboard. It is my hope, with agreements which have been 
reached here today to move ahead with the confirmation of three Federal 
judges today and two more on Thursday, that perhaps we will see a 
return to at least some basic level of comity in the Senate. We have 
moved a considerable distance from the tradition of confirmation of 
Federal judges where, in times gone by, there was merely a review of 
academic standing, professional standing, and trial practice; now, we 
go into much more detail of the ideology and philosophy of the 
nominees. That change has led to some deep concerns over the so-called 
cultural wars which have, candidly, muddied the waters. However, it is 
my hope that in the time that remains in the 110th Congress, we will 
move ahead with the confirmation of judges on up-and-down votes.
  The three nominees we are considering today have come to the floor as 
a result of an arrangement worked out by the leadership on both sides. 
Originally, there had been a commitment to have these confirmations 
occur before Memorial Day. When I say ``commitment,'' let me modify 
that slightly to ``best efforts.'' When the nominees were selected, 
there was concern on the part of the Republican side of the aisle that 
there was insufficient time to take up the nomination of appellate 
court Judge Helene White to be a judge of the Sixth Circuit.
  I will ask unanimous consent that the full text of my statement on 
Judge White's nomination be printed in the Record at the conclusion of 
my remarks.
  By including my statement, I can abbreviate my comments now. In my 
statement, I note that there were only 22 days between Judge White's 
nomination and hearing, and there was not an opportunity to get into 
the details of her record, which is a matter not just of procedure, not 
just of form, but of real substance in terms of the committee's ability 
to evaluate Judge White. I shall talk about that specifically, in terms 
of her qualifications and in terms of specific cases which she has 
decided. The context of the mere 22 days to evaluate her nomination is 
further illuminated by the fact that there were so many other nominees 
who had been on the agenda for much longer. A very distinguished 
lawyer, Peter Keisler, a man who has been praised on the editorial 
pages, had been waiting for 726 days for a committee vote on his 
nomination to Circuit Court for the District of Columbia. It is not too 
often that judicial nominees are praised on the editorial pages, but 
Peter Keisler has been. A judge in North Carolina, District Court Judge 
Robert Conrad, who is up for a seat on the Fourth Circuit, has been 
waiting for a hearing for 343 days. A man named Steve Matthews, also 
for a seat on the Fourth Circuit, has been waiting for a hearing for 
292 days.

  It seemed to my Republican colleagues and me that where you had a 
commitment for confirmations by Memorial Day, and you had people who 
had been waiting around for this length of time and we were in a 
position to evaluate them, that they should have been the ones to be 
considered. But, the majority leader chose otherwise, and now we have 
before us the nomination of Judge White for a position on the Sixth 
Circuit.
  The status of a circuit judge is extremely important in our judicial 
hierarchy because the circuit court--for those who are not familiar 
with the details of Federal procedure--is the appellate court right 
above the U.S. District Court, which is the federal trial court. When 
appeals are taken, or, more specifically, a petition for a writ of 
certiorari is applied for to the Supreme Court of the United States, it 
is a discretionary matter whether the Supreme Court takes the case. 
Most of those applications are not heard--the U.S. Supreme Court takes 
very few cases from the court of appeals. So, when a three-judge panel 
sits in a circuit court, that is it. Now, sometimes there will be a 
decision by the circuit court en banc, when the full circuit court will 
decide, but customarily the decision is only rendered by the three-
judge panel, and many decisions are two to one.
  One case which illustrates the importance of the circuit court, and 
especially the Court of Appeals for the Sixth Circuit, was the decision 
on the constitutionality of the Terrorist Surveillance Program, the 
program put into effect by the President on warrantless wiretaps. These 
wiretaps went on for a long time before they were disclosed--a 
violation of the National Security Act of 1947, which requires the 
President to inform the Intelligence Committees of such proceedings, 
and a violation of the Foreign Intelligence Surveillance Act of 1978.
  The President has responded to the law that Article II powers are not 
affected by statute, but that is a matter for judicial decision. A 
Federal court in Detroit declared the Terrorist Surveillance Program 
unconstitutional. The case was appealed to the Sixth Circuit, and on a 
two-to-one decision, the Sixth Circuit decided the plaintiffs did not 
have standing. That is a complicated legal procedure, which I will not 
take time to discuss today, but, in short, they do not have a right to 
challenge it because they are not sufficiently affected by it.
  There was a dissent in that Sixth Circuit decision. Then, the Supreme 
Court of the United States denied certiorari--a decision which I 
thought was unfortunate. When you have a major constitutional 
confrontation between the Congress and the President--the most dominant 
confrontation of this era--it seems to me the Supreme Court of the 
United States ought to decide the issue and, candidly, not look for a 
way to duck it.
  The doctrine of standing has sufficient flexibility, as illustrated 
by the dissent in the Sixth Circuit, that the Court could have taken 
the case. There is a lot of flexibility when the court deals with 
issues such as standing. Coming back to the point, one judge of the 
Sixth Circuit made the difference. So, when you have a nominee to the 
Sixth Circuit Court of Appeals, or any court of appeals, it is an 
important decision.
  Going back to the topic at hand, we had the hearing on Judge Helene 
White, and we had it in a very hurried fashion. We did not have the 
rating of the American Bar Association, and, regrettably, we did not 
have all the materials that should have been available to the 
committee. When judges write opinions, a good many of them are what are 
called unpublished. For those who do not know the legal procedures, 
there are published opinions, which are bound in volumes that are used 
for precedents. But, the courts make a distinction on what is published 
and what is unpublished, and a good many of Judge White's opinions were 
unpublished and reversed, and we never were able to get them.

[[Page S5996]]

  I asked Judge White at the hearing about a number of her cases 
because my own sense is to get involved in the specifics. In evaluating 
judges and evaluating lawyers on their legal skills, it is very 
revealing to see what they have decided. Perhaps even more revealing 
than what they have decided is the way they have reasoned through the 
decision. My questions about her cases were not designed to be so-
called ``gotcha'' questions. All the cases I used for questioning were 
specifically listed on Judge White's Senate questionnaire that she 
provided to the committee on April 25, just 12 days prior to her 
hearing. I thought she would at least be familiar with these cases.
  One of the cases I questioned Judge White on was captioned People v. 
Santiago. In that case, Judge White dissented from her colleagues' 
opinion, where her colleagues--two other judges--upheld a jury 
conviction of a defendant for first-degree felony murder and armed 
robbery. Judge White would have reversed the sentence.
  In this case, the defendant had driven the other two defendants to 
the house where the robbery and murder were committed, knowing that the 
defendants intended to rob and likely kill the victim--a classic 
example of aiding and abetting. It is a basic, fundamental rule of 
criminal law that an accomplice in a getaway car is a part of the 
conspiracy to rob and is responsible for the consequences of a felony 
murder which follows--very basic fundamental law.
  I asked Judge White why she did not agree with her colleagues that 
the defendant was guilty of aiding and abetting. She could not explain 
why her decision deviated from the legal standards. I asked her 
specifically if it was ``standard, clear-cut law that when somebody 
drives a codefendant to a place where there is a robbery and a murder, 
that kind of assistance constitutes guilt on the part of the 
coconspirator, accessory before the fact?'' She commented, 
unresponsively, that she ``went to law school in Pennsylvania,'' but 
then continued that ``in Michigan, to be responsible for the principal 
offense, one has to either share the intent to commit the principal 
offense or provide aid and support with knowledge that the principal 
offense was going to be committed.''

  Given that acknowledgment, I again asked her why she came to a 
contrary conclusion. I asked her if she stood by her decision, even 
though her two colleagues who participated in the case with her on the 
Michigan Court of Appeals disagreed and the Supreme Court had denied 
appeal, and she responded that she stood by her original judgment, 
without providing any legal reasoning to justify that conclusion.
  I asked Judge White about another case, captioned People v. Ryan. She 
participated in the decision affirming the dismissal of a drug dealer's 
conviction. The conviction had been reversed. The circumstances were 
that the defendant was arrested by Federal agents but was charged and 
convicted in a state court. The defendant argued that the decision to 
pursue a state prosecution rather than a federal prosecution was 
vindictive. The panel on which Judge White sat found that the trial 
court's determination that there was vindictive conduct was not clearly 
erroneous. The Supreme Court reversed stating:

       The mere threat to refer the case for State prosecution 
     does not amount to objective evidence of hostile motive.

  The Supreme Court reversed the decision to which Judge White had been 
a party.
  I am sorry for the interruption. Anyone watching this debate on C-
SPAN just saw a congenial exchange between the distinguished chairman 
and the ranking member of the Judiciary Committee. As a matter of fact, 
we have quite a few such exchanges. The evening is getting late and a 
lot of colleagues have a lot of commitments, and there has been a 
request by the majority that I abbreviate my comments. I think I can do 
that sensibly and will be delighted to do so.
  Mr. LEAHY. Mr. President, if the Senator will yield without losing 
the floor?
  Mr. SPECTER. No, Mr. President, I already have yielded.
  Mr. LEAHY. Mr. President, I appreciate what the Senator said. I hope 
people understand who are listening. I know the two Senators from 
Michigan are going to speak very briefly. But if we wrapped up the 
comments in, say, the next 15, 20 minutes, we could then go to a 
rollcall vote on Helene White. I would agree, then, to a voice vote on 
the other two judges, provided the ranking member had no objection to 
that, which would probably bring about a huge sigh of relief from 
Senators on both sides of the aisle that we would not be stuck here 
with three votes.
  Mr. SPECTER. Mr. President, I thank the distinguished chairman for 
his suggestion. It is almost 6 o'clock--a few minutes before--and I 
know people have a lot of engagements. I think the course he outlines 
is a solid one. I think we can handle the Senate's business in that 
way. As I said earlier, I will expedite my presentation and rely more 
on what I have in my statement for the Record. I do not think I am 
going to change a whole lot of votes in what I say, but I do think it 
is important for the Senate to understand that voting against Judge 
Helene White is not a matter that is done lightly or without cause. 
There ought to be a statement as to why.
  Well, back to the case of People v. Ryan. Quite frequently there is a 
Federal investigation and a State prosecution. It happens all the time. 
It was very commonplace when I was district attorney of Philadelphia. 
That scenario is certainly not the basis for saying it is vindictive or 
out of order. For one reason or another, it is better suited to pursue 
the State court. If a State law is violated, you can do it that way. 
Judge White was wrong, as determined by the appellate court.
  There is one other case on which I wish to comment. There is a case 
called People v. Thomas, which is in the Record and which I will 
incorporate by reference to save some time; however, I do want to 
specify the case of People v. Hansford, which was an opinion reversed 
on appeal by the Michigan Supreme Court and was a third case she had 
summarized in her questionnaire prior to her hearing.
  After reading to Judge White in the hearing the defendant's extensive 
criminal record, which included several counts of larceny and attempted 
larceny, receiving and concealing stolen property, fleeing and 
alluding, and violations of probation, I noted that habitual offender 
statutes are designed to take habitual offenders off the streets. I 
asked what her reasoning was for determining that a man with an 
extensive criminal record such as the defendant did not deserve to be 
off the streets for life.
  Once again, her response to my question was that she was not familiar 
with the case. She further stated that she ``accept[ed] the Supreme 
Court's decision . . . and accept[ed] that the sentence was appropriate 
. . . because the Supreme Court has said it is appropriate.''
  I again asked her whether she thought her decision was correct in 
light of the Michigan Supreme Court's reversal, and she said:

       I have to have been wrong . . . The Supreme Court reversed. 
     I was wrong. The Supreme Court reversed.

  Well, that is, in my legal opinion, totally insufficient for a 
nominee to respond in that way to a very important question such as 
that. You have habitual offender statutes which are designed to take 
career criminals off the streets. When you have three or more 
convictions for violent offenses, it has been determined that the 
criminals ought to have life sentences. Based on the experience I had 
as district attorney dealing with these cases, I authored the Armed 
Career Criminal bill, which created a federal life sentence for serious 
repeat offenders convicted of three or more major felonies. The 
fundamental part of the criminal law is to protect society. Recidivists 
commit 70 percent of the crimes so if there is a habitual offender who 
commits repeat crimes, they ought to be taken off the streets. Here 
there was one, and the Supreme Court of Michigan said the treatment 
should have been for a habitual offender. Judge White didn't treat it 
that way, and she didn't have any justification for why she didn't 
treat it that way, and she didn't explain the logic of her reasoning.

  As delineated in the very extensive floor statement, which I have 
already had printed in the Record, we were not given a great many of 
Judge White's opinions. It was very difficult--really impossible--to 
calculate her reversal rate when we didn't have those opinions. Based 
on the opinions we have,

[[Page S5997]]

her reversal rate was in excess of 6 percent, much higher than Judge 
Robert Conrad's reversal rate--2 cases out of 175, or about 1 percent. 
The national average is at 8.6 percent; however, Judge Boyle from North 
Carolina, who was rejected by the Democrats based on his high reversal 
rate, had a reversal rate which was lower than Judge White's. And I 
repeat, we still don't know what her reversal rate is. We don't know 
what her reversal rate is because we had a great many unpublished 
opinions that were reversed on appeal that we did not have an 
opportunity to examine because they were not provided to us.
  Just a couple of comments in conclusion. It is my hope that we will 
yet return to some basic comity and have a respectable number of 
confirmations of Federal judges this year. The statistics show that 
President Clinton had a significantly larger number of circuit judges 
and district court judges confirmed than President Bush has had in the 
last 2 years. Further, President Clinton's overall confirmation numbers 
are higher than President Bush's. President Clinton had 65 circuit 
judges and 305 district court judges confirmed, while President Bush 
has had only 59 circuit judges and 244 district judges confirmed. We 
have heard several discussions about the so-called ``Thurmond rule''--
that is a rule which has been commented upon which, when analyzed, has 
no real substance. During President Clinton's Administration, Chairman 
Leahy commented that the so-called ``Thurmond rule'' was a ``myth,'' 
and then he proceeded to specify a great many judges who had been 
confirmed late in past Presidents' terms.
  Upon examination, we find that the facts are that in the last 2 years 
of Presidents' terms, there have been many judicial confirmations. In 
1988, President Reagan's last year in office, the Senate confirmed 7 
circuit nominees and 33 district court nominees. In 1992, President 
George H.W. Bush's last year, the Senate confirmed 11 circuit nominees 
and 53 district court nominees. In 2000, President Clinton's last year 
in office, the Senate confirmed 8 circuit nominees and 31 district 
court nominees.
  The Thurmond rule allegedly arose when the issue about the 
confirmation of judicial nominees came up near the end of President 
Carter's term in office. But, an examination of the facts shows that 
nominations were not being blocked. In fact, by today's standards, the 
end of President Carter's term was a rather remarkable situation. 
President Carter nominated Steven Breyer to be a court of appeals judge 
for the First Circuit on November 13, 1980, after President Carter had 
lost the election to President Reagan. We talk about the fights over 
circuit judges now. The election was gone. We had a new President. But, 
the Senate confirmed Steven Breyer to the First Circuit, and history 
shows that he later became a U.S. Supreme Court Justice.
  We have had some very troubled times on this Senate floor, and that 
kind of infighting and partisanship is something which does not add to 
the luster of the Senate as the world's greatest deliberative body. We 
have seen very bitter disputes on this Senate floor. The Republican 
majority, in my opinion, did not act properly on President Clinton's 
nominees when the Republicans controlled the Senate and the President 
was a Democrat. I said so on the floor at that time and voted for 
President Clinton's qualified nominees.
  When we had the battle over filibuster versus the so-called nuclear 
constitutional option, the tradition of this body was strained to the 
utmost, and we dodged that bullet or cannon or nuclear bomb. So, it is 
my hope that Senator Leahy and I can take the lead, as we have in the 
past. He is the chairman; I am the ranking member. The roles have been 
reversed. We have a lot of role reversals around here. When Pat Leahy 
and Arlen Specter passed the gavel, it was a seamless passing of the 
gavel. We are not going to filibuster Judge White. I am going to vote 
against her for the reasons I have given here, and more detailed in my 
statement. I have not campaigned against her. I think the matter is up 
for every individual Senator to judge. My expectation is that she will 
be confirmed. I think there may well be a fair number of votes against 
her, but I haven't counted the votes. But, I think the important thing 
is that we have an up-and-down vote, and that we not have a filibuster. 
We have waiting in the wings the judge from North Carolina, Judge 
Conrad, and the man from South Carolina, also nominated to the Fourth 
Circuit. I hope we move on these nominees.
  I also have written to my colleagues who are not returning blue slips 
on nominees from New Jersey and from Maryland and from Rhode Island. I 
have talked to them and urged them to return their blue slips, urging 
that we not maintain vacancies in anticipation of the election results. 
But, essentially, it is my hope that we can move ahead in a way that is 
in the tradition of the Senate and to discharge our constitutional 
responsibilities with up-or-down votes.
  Mr. President, I now ask unanimous consent that my full statement be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Senator Arlen Specter, Floor Statement, Nomination of Judge Helene 
              White to the Sixth Circuit Court of Appeals

       I have sought recognition to discuss the nomination of 
     Judge Helene White to the United States Court of Appeals for 
     the Sixth Circuit, but before I discuss the merits of her 
     nomination, I'd like to remind the members of this Committee 
     of the history behind this nomination.
       On April 15, 2008, Majority Leader Reid and Chairman Leahy 
     committed to confirming at least three more circuit court 
     nominees by the Memorial Day recess. Senator Reid said: 
     ``Senator Leahy and I are going to do everything we can to 
     approve three circuit court judges by Memorial Day. . . . Who 
     knows, we may even get lucky and get more than that. We have 
     a number of people from whom to choose.''
       The same day as the Majority's commitment, the White House 
     reached an agreement with the Senators from Michigan on 
     nominations to the Sixth Circuit, which broke a decade-long 
     impasse. The impasse began in 1997, when President Clinton 
     first nominated Judge Helene White to a seat on the Sixth 
     Circuit. The Senate did not act on Judge White's nomination 
     prior the end of the Clinton Administration, and as a result, 
     there has been an ongoing feud between the Michigan Senators 
     and the White House, which led to numerous filibusters of 
     Sixth Circuit nominees in 2003 and 2004, and left the Sixth 
     Circuit with an understaffed court for over ten years. The 
     April 15th agreement between the White House and the Michigan 
     Senators specified that the White House would withdraw the 
     nomination of Mr. Stephen Murphy to the Sixth Circuit and 
     would instead nominate Judge White to that seat. In return, 
     the Michigan Senators would return their blue slips on Mr. 
     Raymond Kethledge, another Sixth Circuit nominee who has been 
     blocked for over 700 days, and Judge White. Mr. Murphy was 
     nominated to a Michigan district court seat instead, and the 
     Michigan Senators agreed to return blue slips on his 
     nomination.
       On April 29th, when it became clear that the Majority 
     intended to include the recent nomination of Judge White in 
     the promised ``three circuit court nominees confirmed by 
     Memorial Day deal,'' Senator McConnell and I sent a letter to 
     Senators Reid and Leahy advising them of the logistical 
     impossibility of confirming Judge White by Memorial Day. In 
     the letter, we noted the numerous ``time-consuming steps in 
     the judicial confirmation process'' and expressed our concern 
     that ``[g]iven these standard prerequisites and Judge Helene 
     White's recent nomination date of April 15, 2008, we do not 
     believe regular order and process will allow for her 
     confirmation prior to May 23, 2008.'' We further observed the 
     ABA rating for Judge White was not likely to be completed in 
     time, given the ABA's standard timeframe for completing 
     ratings, and noted that the ``Democratic Majority has placed 
     particular importance [on the ABA rating] over the years.'' 
     In fact, the Judiciary Committee has never held a hearing for 
     a circuit court nominee prior to receiving his or her ABA 
     rating.
       On May 7th, a mere 22 days after her nomination, the 
     Committee held a hearing on Judge White. Twenty-two days is a 
     very short period of time to evaluate any circuit court 
     nominee's record, but this expedited confirmation process was 
     even more troubling in the case of Judge White. Judge White 
     has been a state court judge her entire career and has 
     participated in over 4500 cases on the Michigan Court of 
     Appeals alone. It has been eight years since her last 
     nomination was pending, and in that time period, she likely 
     participated in over 2000 cases in addition to the 2500 she 
     participated in before 1997. That is quite a record to go 
     through in just 22 days.
       As is standard Committee procedure, questions were 
     submitted to both Judge White and Mr. Kethledge after their 
     hearing. Republicans were criticized for submitting these 
     initial questions even though they submitted a total of only 
     73 questions to Judge White, which is no more than other 
     circuit court nominees have received from Democrats. In fact, 
     several recent Bush appellate nominees and a Department of 
     Justice nominee have received more questions from Democrats 
     than Judge White received from

[[Page S5998]]

     Republicans. Democrats submitted 108 questions for Judge 
     Jennifer Elrod, a 5th Circuit nominee, 80 questions for Judge 
     Leslie Southwick, another 5th Circuit nominee, and 250 
     questions for Grace Becker, a nominee to the Civil Rights 
     Division of the Department of Justice. In addition, the 
     Committee had more time to evaluate these other nominees' 
     records prior to their hearings. Contrasted with the mere 22 
     days the Committee had to evaluate Judge White's record, the 
     Committee had 112 days to evaluate Judge Elrod's record 
     between her nomination and her hearing, 121 days for Judge 
     Southwick, and 117 days for Ms. Becker. I believe these 
     questions for Judge White were particularly warranted given 
     the expedited hearing schedule for her nomination. Both 
     nominees' returned their answers by Wednesday, May 21st, 
     three days before the end of the session, negating the 
     proposition that Republicans' questions slowed these 
     nominations.
       As Senator McConnell and I predicted, the ABA did not issue 
     its rating for Judge White prior to the Memorial Day recess, 
     and the Committee was unable to complete its work on her 
     nomination prior to the recess.
       The Majority did not fulfill its commitment to confirm 
     three more circuit court nominees by Memorial Day because 
     they chose to expedite the confirmation of a recently 
     submitted circuit court nominee rather than acting on any of 
     the other outstanding circuit court nominees currently 
     pending in Committee whose paperwork has been complete for 
     months or even years longer than Judge White's.
       The failed Memorial Day commitment is not the first time 
     the Majority has not fulfilled expectations. At the beginning 
     of this Congress in February 2007, Senator Reid stated: 
     ``[W]e are going to do our very best to make sure this is not 
     our last circuit court judge [confirmation] but the first of 
     a significant number who can at least meet the standards of 
     Congresses similarly situated as ours.'' During the last 20 
     years, on average, the Senate has confirmed 17 circuit court 
     nominees in the final two years of a president's term, and in 
     President Clinton's final two years in office, the Senate 
     confirmed 15 circuit court nominees. Since Senator Reid made 
     that statement in February of last year, this Senate has 
     confirmed only 8 circuit court nominees, less than half of 
     the historical average, and the Majority has intimated that 
     they may not process any more circuit court nominees this 
     year. Hence, Senator Reid's February statement was the first 
     of many unfulfilled commitments.
       Second, in his announcement of the deal, Senator Reid 
     acknowledged the fundamental unfairness of discriminating 
     against circuit court nominees from states with two 
     Republican Senators in favor of nominees from states with 
     Democratic delegations or mixed delegations. He stated: 
     ``[W]e have a number of places from which the Judiciary 
     Committee can move matters to the floor. We have North 
     Carolina, South Carolina, Rhode Island, Maryland . . . 
     Pennsylvania. . . . Virginia. . . . Maryland. We have a wide 
     range to choose from. . . . [N]o, it should not be because 
     you have two from the same party from one State and they 
     are not our party; that should not cause them not to have 
     their nominee approved. . . . I think if you have two 
     Senators from the same party, they should not be 
     discriminated against. I mentioned their names. Their 
     names are Matthews and Conrad.'' Notwithstanding this 
     acknowledgment, the Majority insisted on proceeding with 
     Judge White and Mr. Kethledge rather than moving to other 
     exceptional circuit court nominees from states with 
     Republican Senators such as Steve Matthews of South 
     Carolina and Robert Conrad of North Carolina who had been 
     ready and waiting for Senate action for months longer than 
     Judge White. Once again Senator Reid disregarded his prior 
     commitment not to discriminate against states with 
     Republican delegations, breaking yet another commitment.
       Now, I'd like to turn to Judge White's qualifications. 
     Providing advice and consent on judicial nominees is one of 
     the most important duties of a United States Senator. I take 
     my role in the confirmation process very seriously, and I 
     have serious concerns about Judge White's qualifications to 
     be a judge on the Sixth Circuit Court of Appeals. Except for 
     the two years she spent clerking for a Michigan State Supreme 
     Court judge, Judge White has been a state court judge her 
     entire career. She has never litigated a case, she has never 
     handled clients, and she has had extremely limited experience 
     with federal law as a state court judge.
       While this lack of certain legal experience by a circuit 
     court nominee certainly would not immediately disqualify the 
     candidate from holding a federal appellate position, given 
     the short time frame the Senate has had to consider Judge 
     White's record, these factors are significant in her case. 
     She had a very limited opportunity to demonstrate her ability 
     to handle her docket and the complicated legal issues that 
     face a federal appellate court judge.
       Given her lack of experience with federal law, Judge White 
     was questioned about the types of federal issues that she has 
     handled and was asked to articulate her understanding of some 
     common federal legal principles. She repeatedly responded 
     that she had not dealt with these issues and was unable even 
     to discuss some common federal legal issues and the cases 
     addressing them.
       At her hearing, I also asked Judge White several questions 
     about decisions that she had participated in on the Michigan 
     Court of Appeals that were reversed by the Michigan Supreme 
     Court. She repeatedly stated that she was unfamiliar with the 
     cases and did not recall the factual scenarios or her legal 
     reasoning. Even after I had given her the relevant facts of 
     the cases, she was unable even to articulate her legal 
     analysis or reasoning process. My questions about her cases 
     were not designed to be ``gotcha'' questions; the cases I 
     mentioned were all specifically listed in Judge White's 
     Senate questionnaire that she provided the Committee on April 
     25, just 12 days prior to her hearing. Further, for three of 
     the cases, she had provided the Committee with short 
     summaries of the facts and holdings in her questionnaire. At 
     the very least, I thought she would be familiar with the 
     cases she apparently had reviewed recently in order to 
     provide the Committee with those summaries.
       In one case upon which I questioned Judge White, People v. 
     Santiago, she dissented from her colleagues' opinion 
     upholding a jury conviction of a defendant for first degree 
     felony murder and armed robbery. In this case, the defendant 
     had driven the two other defendants to the house where the 
     robbery and murder were committed, knowing that the 
     defendants intended to rob and likely kill the victim--a 
     classic example of aiding and abetting. When I asked her 
     about her dissent which held that the defendant was not 
     guilty of aiding and abetting, she could not explain why her 
     decision deviated from the legal standards for aiding and 
     abetting, as enunciated by the majority opinion and as 
     affirmed by the Michigan Supreme Court when they denied 
     appeal. I specifically asked her if it was ``standard, clear-
     cut law that when somebody drives a co-defendant to a place 
     where there is a robbery and a murder, that kind of 
     assistance constitutes guilt on the part of the co-
     conspirator, accessory before the fact?'' She responded first 
     that she ``went to law school in Pennsylvania,'' but then 
     continued that ``in Michigan, to be responsible for the 
     principle offense, one has to either share the intent to 
     commit the principal offense or provide aid and support with 
     knowledge that the principal offense was going to be 
     committed.'' Given that acknowledgement, I again asked her 
     why she came to the conclusion that the defendant was not 
     guilty of aiding and abetting. Again, she could not explain 
     her legal reasoning in the case. I asked her if she stood by 
     her decision even though her two colleagues who participated 
     in the case and heard the same set of facts disagreed with 
     her and the Supreme Court had denied appeal, and she 
     responded that she did.
       In another case, People v. Ryan, Judge White participated 
     in a decision affirming the dismissal of a drug dealer's 
     conviction, and the Supreme Court reversed that decision and 
     reinstated the conviction. In this case, the defendant was 
     arrested by federal agents, but was charged and convicted in 
     State court. The defendant argued that the decision to pursue 
     a State prosecution rather than a federal prosecution was 
     vindictive. The panel on which Judge White sat found that the 
     trial court's determination that there was vindictive conduct 
     was not clearly erroneous. The Supreme Court reversed 
     stating: ``The mere threat to refer the case for State 
     prosecution does not amount to objective evidence of hostile 
     motive.'' After reciting these facts to her, I asked Judge 
     White if she stood by her opinion given that the only 
     evidence of vindictiveness was that Federal DEA authorities 
     turned the matter over to State prosecutors, which is a very 
     common practice. In response Judge White cited her 
     unfamiliarity with the case and deferred to the Supreme 
     Court's holding rather than answering my question. She stated 
     that ``because the Supreme Court reversed, it meant that I 
     among others, got it wrong. . . . I stand by the Supreme 
     Court.'' I was concerned by her stated unfamiliarity with the 
     case because this was a case Judge White had cited in her 
     questionnaire for which she had provided a summary. I was 
     equally concerned that she deflected my question about 
     whether she stood by her opinion.
       I next turned to another case Judge White had summarized in 
     her questionnaire captioned People v. Thomas. I detailed the 
     facts of the case to Judge White, which included the 
     conviction of a drug dealer who was charged with second-
     degree murder and was found guilty by a jury of voluntary 
     manslaughter, carrying a concealed weapon, and felony 
     firearm. I asked her whether she stood by her decision to 
     reverse the conviction of this gang member when the Michigan 
     Supreme Court had subsequently overturned her panel's 
     opinion. Once again she deferred to the opinion of the 
     Supreme Court and stated ``I stand by the judgment of the 
     Supreme Court.'' I told her I knew the Supreme Court had the 
     final word, but I wanted to know whether she thought the 
     Supreme Court's decision was right. She again stated that she 
     ``accept[ed] the conclusion of the Supreme Court.'' She did 
     not answer my question. I wanted to evaluate her judgment, 
     but she would not answer whether she thought her opinion was 
     right or wrong.
       I also asked her about a Court of Appeals' opinion in which 
     she participated that reversed a sentence for a defendant who 
     was a habitual criminal offender, People v. Hansford. Again, 
     this was an opinion that was reversed on appeal by the 
     Michigan Supreme Court and was a third case she had 
     summarized in her questionnaire. After reading her the 
     defendant's extensive criminal record, which included 
     several counts of larceny and attempted larceny, receiving 
     and concealing stolen property, fleeing and alluding, and 
     violations of probation, I noted

[[Page S5999]]

     that habitual offender statutes are designed to take 
     habitual offenders off the streets, and I asked her what 
     her reasoning was for determining that a man with an 
     extensive criminal record such as the defendant did not 
     deserve to be off the streets for life. Once again, she 
     claimed not to be familiar with the case. She further 
     stated that she ``accept[ed] the Supreme Court's decision 
     . . .'' and ``accept[ed] that the sentence was appropriate 
     . . . because the Supreme Court has said it is 
     appropriate.'' I again asked her whether or not she 
     thought her decision was correct in light of the Michigan 
     Supreme Court's reversal, and she said ``I have to have 
     been wrong . . . The Supreme Court reversed. I was wrong. 
     The Supreme Court reversed.''
       In her answer to my question about the habitual offender, 
     Judge White also noted that the vast majority of her court's 
     opinions are unpublished. At her hearing, I expressed concern 
     about how many of her opinions were unpublished. I am also 
     concerned that copies of a number of her opinions that were 
     reversed on appeal were not provided to the Committee prior 
     to her hearing as required. Question 15(d) of the Committee 
     Questionnaire specifically asks for ``a list of and copies of 
     any of [the nominee's] unpublished opinions that were 
     reversed on appeal or where [the nominee's] judgment was 
     affirmed with significant criticism of [the] substantive or 
     procedural rulings;'' however, Judge White only provided the 
     Committee with copies of 23 cases that were unpublished and 
     reversed on appeal. Three of the cases about which I 
     questioned her were listed elsewhere in her questionnaire, 
     but were not included in those 23 cases that she provided to 
     the Committee and clearly fit into the category of cases she 
     should have provided. The Committee and the full Senate 
     cannot properly evaluate a nominee's record if it does not 
     have key elements of that record. I would have liked to have 
     had access to all of Judge White's opinions that were 
     reversed prior to her hearing so that they could have been 
     analyzed and used as the basis for questioning.
       In follow up questions after her hearing, I asked Judge 
     White to provide those missing cases and to explain why she 
     did not provide them initially. She responded to my question 
     by saying it was an ``oversight'' that she did not include 
     them initially and further stated that she can only provide 
     the Committee with a ``partial list of cases in which [she] 
     participated . . . which were reversed'' because the method 
     the Michigan Court of Appeals employs to catalogue cases 
     makes it difficult to locate those cases. She only provided 
     the Committee with an additional 11 cases that were reversed 
     on appeal. I find this response deeply troubling for a number 
     of reasons. First, appellate judges should be held to the 
     highest standards of competence. ``Oversights'' by a judge 
     can lead to defendants being wrongly convicted, criminals 
     being set free, or wronged litigants not receiving justice. 
     Attention to detail and thoroughness are critical qualities 
     in an appellate judge. Second, nominees to the federal courts 
     who have served as judges should provide all of the opinions 
     they participated in that were reversed on appeal or, at 
     least, demonstrate a reasonably robust effort to do so. 
     Democrats have required prior appellate court nominees to 
     provide substantial numbers of their unpublished opinions in 
     addition to the ones that were reversed on appeal. I recall 
     one judge being asked to go to a depository in another state 
     to retrieve copies of unpublished opinions. Judges should 
     make every reasonable effort to provide all of their opinions 
     that were reversed on appeal, not merely the ones that are 
     easily accessible. I am also troubled by Judge White's 
     relatively high reversal rate. A review of Judge White's 
     opinions that are available publicly reveals that 6.7% of her 
     cases have been reversed by the Michigan Supreme Court. That 
     is a pretty high percentage of cases. Further, Judge White's 
     reversal rate may be much higher, but we cannot determine her 
     actual reversal rate because Judge White still has not 
     provided the Committee with all of her unpublished opinions 
     that were reversed on appeal. As comparison, Democrats 
     objected to the nomination of Judge Terrence Boyle to the 
     Fourth Circuit when his reversal rate was 6.2%.
       I am troubled by some of Judge White's decisions that were 
     reversed on appeal, but I am more concerned about her 
     inability to articulate her legal analysis and reasoning 
     process in these cases and her lack of experience with 
     complex federal issues. I am also concerned that Judge White 
     has not provided the Committee with a complete record of her 
     judicial opinions upon which we could evaluate her 
     qualifications for this prestigious position.
       Given the brief period of time I had to review Judge 
     White's opinions, her apparent unfamiliarity with her own 
     opinions, her inability to articulate her legal reasoning and 
     analysis in those opinions, and her failure to provide the 
     Committee with important elements of her judicial record 
     prior to her hearing, I plan to vote against her confirmation 
     to the Sixth Circuit.

                Needless Rush to Judgment on Judge White

       A Republican Senate confirmed 15 circuit court judges and 
     57 district court judges in President Clinton's final two 
     years. Thus far in this Congress, the Senate has confirmed 
     only 8 of President Bush's circuit court nominees and 38 
     district court nominees.
       President Bush is also far behind President Clinton in 
     total confirmations when contrasting their entire terms. 
     President Clinton had 65 circuit court and 305 district court 
     judges confirmed, while President Bush has so far had only 59 
     circuit and 241 district court judges confirmed.
       There are a total of 32 judicial nominees currently pending 
     in the Judiciary Committee: 11 Circuit Court vacancies with 
     10 nominees; 36 District Court vacancies with 22 nominees.
       Judge Helene White was nominated on April 15. Her Judiciary 
     Committee questionnaire was received on April 25, and the 
     Minority did not receive her FBI report until April 29. Her 
     hearing was held on May 7. Responses to Judge White's 
     questions for the record following her hearing were received 
     yesterday.
       The mere 22 days that elapsed between nomination date and 
     hearing is a far shorter period of time than is typical for 
     the Committee to perform its standard review of a circuit 
     court nominee's record. The average for Bush's circuit court 
     nominees has been 162 days between nomination and hearing.
       The American Bar Association has still not completed its 
     rating of Judge White. The Committee has never held a hearing 
     for a circuit court nominee prior to receiving their ABA 
     rating.
       Democrats have accused Republicans of stalling the two 
     sixth circuit nominees. Senator Reid: ``Senators on the 
     Republican side on the Judiciary Committee have delayed 
     consideration of Judge White. . . . following the hearing, 
     [they] asked a total of 73 separate written questions''
       In fact, Judge White did not receive more questions than 
     other recent circuit court nominees: Republicans submitted 73 
     questions for Judge Helene White, 6th Circuit; Democrats 
     submitted 108 questions for Judge Jennifer Elrod, 5th 
     Circuit; and Democrats submitted 80 questions for Judge 
     Leslie Southwick, 5th Circuit.
       And, the Committee had more time to evaluate these other 
     nominees' records prior to their hearings. Days from 
     nomination to hearing: White: 22 days; Elrod: 112 days; and 
     Southwick: 121 days.
       Judge White has already submitted her answers to the 
     Committee, proving that no delay by Republicans occurred. The 
     delay is due to the importance Democrats' have placed on the 
     ABA rating. In 2001, Senator Leahy stated: ``Here is the 
     bottom line. There will be an ABA background check before 
     there is a vote.'' Senator Leahy reiterated this pledge at 
     Judge White's hearing.
       Judge White's nomination has only been pending for 37 days. 
     Meanwhile, Mr. Peter Keisler, D.C. Circuit, has waited 693 
     days for a Committee vote, Judge Robert Conrad, 4th Circuit, 
     has waited 310 days for a hearing, and Mr. Steve Matthews, 
     4th Circuit, has waited 259 days for a hearing.

  Mr. SPECTER. My final comment, if I may make it while the chairman is 
on the floor, is that we do have some other Senators who wish to speak. 
Well, I have just been advised that we don't have Senators who wish to 
speak. Apparently, Senator Leahy, your comments about an early 
conclusion were much more persuasive than mine.
  Mr. LEAHY. Mr. President, if the Senator will yield for a moment, 
when the Senator from Pennsylvania is finished, I know Senator Levin 
and Senator Stabenow wished to speak very briefly. If that was the 
case, I hope that maybe within the next 10 minutes or so, or that by 
6:30, or at 6:30, that perhaps what we can do is this: Let's say at 
6:30, if the Senator from Pennsylvania would agree that we might vote 
at 6:30, then under the previous unanimous consent, if Judge White is 
confirmed, assuming she is, but if she is under the unanimous consent, 
then the regular order would be to go to the other two nominees from 
Michigan. It would be my intent--unless somebody objected--it would be 
my intent to do those by voice vote. That, of course, is contingent 
upon her being confirmed under the unanimous consent agreement that I 
have been shown. Would that be acceptable?
  Mr. SPECTER. Mr. President, that is acceptable to this side of the 
aisle. I think it is an illustration of how the Senate can conduct its 
business in an expeditious way. We started on a 4-hour time agreement 
at 5:15. We are 54 minutes into the 4 hours, and we will conclude with 
a 2-hour-and-45-minute savings. Let this be an example for the balance 
of the confirmation process and other Senate work.
  I yield the floor.
  Mr. HATCH. Mr. President, I will vote for all of the Judicial 
nominees before us today. I want to offer a few comments about one of 
them and also about the current state of the judicial confirmation 
process.
  The Constitution gives authority to nominate and appoint judges to 
the President, not to the Senate.
  The Senate's role is to check the President's power, to ensure that 
his nominees are not crooks, cronies, or corrupt.

[[Page S6000]]

  Too often in relent years, however, Senators have tried to push our 
role beyond merely checking the President's power to actually 
highjacking the President's power.
  That goes too far and undermines the separation of powers which is so 
critical to limit government power and to keep our system of government 
in balance.
  For this reason, my perspective on the judicial confirmation process 
begins with substantial deference to the President, no matter which 
party occupies the While House or has the Senate majority.
  For this reason, I have voted against and worked to eliminate 
filibusters used to defeat majority-supported judicial nominees.
  And for this reason, I have voted against very few nominees during my 
32 years in this body and on the Judiciary Committee.
  From that perspective of deference, I then look at a nominee's 
judicial philosophy and qualifications.
  Applying these criteria, my decision to support two of the nominees 
before us today, Raymond Kethledge to the Sixth Circuit and Stephen 
Murphy to the Eastern District of Michigan, was easy.
  My decision to support Judge Helene White's nomination to the Sixth 
Circuit, however, was a much closer call.
  Frankly, I have always believed that a President has the right to 
appoint judges who reflect his or her judicial philosophy.
  I asked Judge White detailed questions designed to explore her 
judicial philosophy, her understanding of the proper role of Federal 
appellate judges in our system of government.
  I want to share a few of her responses with my colleagues.
  I asked Judge White to comment on the notion that judges must make 
decisions based on the law as enacted by the people and their elected 
representatives, even if they personally disagree with it.
  Judge White agreed with this wholeheartedly, staying that judges 
``should be prepared to have no constituency except the law.''
  I realize this is straight out of civics 101, but there are many 
today who believe judges may twist and shape the Constitution and 
statutes into any form they please in order to achieve results they 
desire.
  In fact, some ray colleagues on the other side of the aisle have said 
judges must take sides, that they must favor certain ideological 
interests and serve certain political constituencies.
  I also asked Judge White whether judges may decide cases based on 
their personal views, sense of justice, empathy, or experience.
  It would be difficult to come up with a more misguided and even 
dangerous role for unelected judges in our system of government, 
but some of my friends on the other side of the aisle have endorsed 
that approach.

  To her credit, Judge White flatly rejected that activist view of a 
judge's role.
  I wanted to share these thoughts with my colleagues because some have 
questioned whether Judge White is the kind of judge President Bush has 
said he would appoint.
  She was, after all, first nominated to the Sixth Circuit by President 
Clinton whose nominees generally embraced a more activist judicial 
philosophy.
  President Bush is the first, at least during my Senate tenure, to 
resubmit an appeals court nominee first offered by a President of the 
other party.
  President Clinton certainly did not do that.
  But the Constitution gives each President the authority to make that 
judgment and I have always believed that there is a high bar for the 
Senate to withhold its consent on the basis of judicial philosophy.
  That perspective of deference and her answers to questions like the 
ones I described satisfy me on this point.
  Let me turn to the question of qualifications.
  The American Bar Associations rating of judicial nominees is more 
important for some than for others.
  My friends on the other side have consistently said the ABA rating is 
the gold standard for evaluating judicial nominees.
  I take that back.
  They have called the ABA rating the gold standard until they want to 
obstruct nominees who have received even the highest rating.
  Judge White's ABA rating in 2008 is higher than it is in 1997, when 
she was first nominated to the Sixth Circuit.
  At that time, some members of the ABA evaluation committee thought 
she was not qualified at all.
  This time, a majority of the evaluation committee found her well 
qualified and no one thought her unqualified.
  It is a little surprising, however, that after 26 years as a State 
court judge, 15 of them on the appellate bench, Judge White still has 
not garnered a unanimous well qualified rating from the ABA.
  In fact, Raymond Kethledge, the other Sixth Circuit nominee before us 
today, received a higher ABA rating than Judge White and he has no 
judicial experience at all.
  Judge White has never litigated a case. She has never handled 
clients. She has virtually no experience with Federal law issues of any 
kind.
  There have been serious concerns about her ability to manage her 
current docket, let alone the far busier and more complex docket she 
would face on the Federal bench.
  Perhaps these dare some of the issues that kept the ABA evaluators 
from giving her the highest rating.
  Unfortunately, Judge White did not distinguish herself in her hearing 
and offered the committee little to offset these and other concerns 
about her qualifications. The distinguished ranking member, Senator 
Specter, and others are detailing some of those concerns on the floor 
today.
  Some of my friends on the other side have responded that 
this nomination has really been pending for 11 years and that we should 
somehow already know enough to fill in the blanks and resolve the 
doubts.

  That is ridiculous.
  I have served in this body and on the Judiciary Committee for 32 
years. I know of no Senator who keeps tabs on the careers, 
accomplishments, and record of unconfirmed nominees from previous 
administrations on the off chance that they might some day be 
renominated.
  We must evaluate each nominee on the current record developed through 
the current process.
  And on the question of qualifications, that record satisfies but 
certainly does not excite me.
  I respect the judgment of colleagues, especially on this side of the 
aisle, who look at these and other issues and conclude that they cannot 
support Judge White. Voting against a nominee of your own party is a 
significant step.
  There are Senators on the other side who have served here even longer 
than I have who have never voted against a nominee of their party.
  Each of us might make that judgment for ourselves and, though it is 
indeed a closer call than I would like, I will vote to confirm Judge 
White.
  Before I conclude, I want to make a few observations about the 
judicial confirmation profess with regard to Judge White's nomination 
in particular and judicial nominations in general.
  When I chaired the Judiciary Committee during the previous 
administration, Judge White's nomination did not receive a hearing 
because she lacked support from her home State Senator who served on 
the Judiciary Committee at the time.
  Similarly, Sixth Circuit nominees of the current President, including 
Mr. Kethledge who is before us today, did not receive a hearing because 
they too lacked home State Senator support.
  I am certainly glad that this issue has been resolve with our 
distinguished colleagues from Michigan so that these nominees can move 
forward.
  But I remain baffled why my following that longstanding policy is 
today attacked as a so-called pocket filibuster while the current 
chairman following that policy is praised for an exercise in senatorial 
courtesy.
  That is one of number of baffling and frustrating futures of the 
current judicial confirmation process.
  There have been seven previous Congresses during my service here that 
included a presidential election year.
  During an average of 313 days in session, 25 appeals court nominees 
received a hearing and 20 appeals court nominees were confirmed.
  Using that as our benchmark, in the current 110th Congress, we are 
nearly

[[Page S6001]]

90 percent finished with our days in session but so far less than one-
third as many appeals court nominees have received a hearing and only 
half as any have been confirmed.
  It does not have to be this way, it has not been this way in the 
past.
  I hope that when the nominees before us today ire confirmed, we will 
turn our attention to the others who are pending some for many months 
and even for years, and continue doing what the American people sent us 
here to do.
  I yield the floor.
  Mr. LEAHY. Mr. President, I yield 5 minutes to the senior Senator 
from Michigan.
  The PRESIDING OFFICER (Mr. Menendez). The Senator from Michigan is 
recognized.
  Mr. LEVIN. Mr. President, we are nearing the end, I hope, of what is 
surely one of the longest judicial nomination sagas in U.S. history. 
Judge White was previously nominated by President Clinton for a vacancy 
on the Sixth Circuit of the Court of Appeals starting in 1997. Her 
nomination was returned to the President without a hearing. Another 
nominee of President Clinton was also returned without a hearing. That 
was the nomination of Kathleen McCree Lewis in 1999.
  Judge White has been serving as a judge on the Court of Appeals of 
Michigan since 1993, and I believe she has participated in more than 
4,000 decisions. Before that, she served as a judge on the Wayne County 
Circuit Court from 1983 to 1993, and that is Michigan's top trial 
court. Judge White, as have our other nominees, has been given a 
``well-qualified'' rating by the American Bar Association's standing 
committee, and President Bush has called Judge White ``an experienced 
and highly qualified judge who is known for her intellect, work ethic, 
and demeanor.''
  The second nominee for the Sixth Circuit is Raymond Kethledge, 
currently a partner at the Bush, Seyferth firm in Detroit, MI. Before 
joining that firm, Mr. Kethledge was a law clerk to Justice Anthony 
Kennedy on the U.S. Supreme Court and earlier clerked for a judge well 
known to those of us in Michigan, beloved Judge Ralph Guy of the U.S. 
Court of Appeals for the Sixth Circuit. Mr. Kethledge also served as 
judiciary counsel for Senator Spencer Abraham from 1995 to 1997, and he 
graduated magna cum laude from the University of Michigan Law School in 
1993.
  Steven Murphy, who is the nominee for the Eastern District position, 
currently serves as U.S. attorney for the Eastern District of Michigan. 
Prior to his service as U.S. attorney, Mr. Murphy was an attorney with 
the General Motors legal staff in Detroit. He worked for the U.S. 
Department of Justice for more than 12 years.
  I wish to take this opportunity to recognize the life and the work of 
Kathleen McCree Lewis who, as I mentioned, was nominated by President 
Clinton in 1999 for a seat on the Sixth Circuit Court of Appeals. Kathy 
McCree Lewis passed away last year. She never had her hearing and 
opportunity to be voted on by the Senate. She was dedicated to her 
profession and to her family. While she is no longer with us, we 
remember her today.
  The seat that Judge White is being nominated for on the Sixth Circuit 
is the same seat that was held by a wonderful woman, Judge Susan Bieke 
Neilson. She held that seat for a tragically short period of 2 months. 
This vote is also a vote to Judge Neilson. Her husband, Jeffrey 
Neilson, wrote Chairman Leahy back in April that he believed that 
Helene White ``will reflect the best qualities of both Susan and 
Kathleen in the performance of her duties, so that although death has 
precluded their presence on the Sixth Circuit, they will be there in 
spirit.

  Finally, I thank Chairman Leahy and our Democratic leader, Harry 
Reid, for all they have done to make it possible that we can finally, 
hopefully, resolve this Michigan issue that has been stymied in the 
Sixth Circuit and Eastern District for far too long, with a bipartisan 
resolution the President has sent us on these three nominees with his 
full support in the Senate.
  I hope the Senate will give an overwhelming vote to Judge White but 
also then adopt a voice vote for the other two nominees.
  Mr. LEAHY. Mr. President, I had hoped that before the Senate we not 
would hear unfair criticism leveled at Judge White. Last month, Senator 
Brownback publicly apologized for his actions at her confirmation 
hearing, and I commended him for doing so. After Judge White answered 
the scores of time-consuming questions Republicans sent to her and the 
committee had received the updated ABA ratings emphasized so much by 
Republicans in connection with these nominations, I hoped we could move 
forward with this in a consensus fashion. It is disappointing that some 
still seem bent on grasping at straws to criticize Judge White, 
applying a different standard from that which they used to evaluate 
other Bush judicial nominees.
  Judge Helene White has served on the Michigan Court of Appeals for 
the past 15 years, having been elected by the people of Michigan in 
1992. Before that she served for a dozen years on the Wayne County 
Circuit Court, the Common Pleas Court for the city of Detroit, and the 
36th District Court of Michigan. She is described on the Bush White 
House Web site as ``an experienced and highly qualified judge, who is 
known for her intellect, work ethic, and demeanor.''
  Judge White has been now been nominated by Presidents from both 
parties, by a Democratic President and by a Republic President. She has 
served as a Michigan State court judge for more than 25 years. In 
addition, she has been active as a member of the legal community and of 
community organizations including COTS, Coalition on Temporary Shelter; 
JVS, Jewish Vocational Services; and the Metropolitan Detroit Young 
Women's Christian Association. She should be a consensus confirmation.
  Oddly, Republican attacks on Judge White have focused on what they 
term a lack of experience. Somehow, someone who has been a respected 
appellate judge for 15 years, who has served as a judge for well over 
25 years, and who the ABA rates as well qualified for the Federal 
circuit court , is in their view not ``experienced'' enough to be a 
Federal appellate court judge.
  Some Senators suggested that her lack of experience with specific 
Federal issues that never come before even the most experienced State 
judge was a problem. They ignore the fact that judges always have to 
learn new areas of the law as new cases come before them, and no one is 
better prepared to do that than an experienced jurist like Judge White.
  Indeed, Mr. Kethledge, President Bush's youthful nominee to the other 
vacancy on the Sixth Circuit, was gracious enough to concede at the 
hearing that he, too, lacked experience in the same specific areas of 
Federal law. Yet his qualifications have not been in called into 
question by Republican Senators. Judge White has served as a Michigan 
State appellate court judge longer than Mr. Kethledge has been out of 
law school, but some are questioning her experience while embracing his 
relatively lack of experience.
  With these criticisms, Republicans risk turning back the clock to 
before the confirmation of Justice Sandra Day O'Connor, who herself had 
been a State legislator and State judge. Justice O'Connor was not 
experienced in deciding Federal law issues before her confirmation as 
the first female justice of the U.S. Supreme Court. I think we can 
agree that she nonetheless served the Nation well in that capacity.
  Should we conclude from the Republic attacks that no State court 
judge can be confirmed to sit on a Federal court? Certainly Jennifer 
Elrod, a State court judge with far less experience than Judge White, 
who the Senate confirmed to the Fifth Circuit late last year, was not 
held to that standard by the Republicans. Indeed, recall what Senator 
Cornyn said about her nomination: ``I would point out that when it 
comes to experience, most of us, when we apply for a new job, or a 
nominee, have rarely done that job before. So the question is not 
whether you have actually done that job before, it's whether you are 
likely to do a good job, if confirmed.''
  Others have pointed to a handful cases in which Judge White was on a 
panel decision that was reversed. This handful of cases comes from 
4,300 cases she heard on the bench. These were cases in which Judge 
White joined a unanimous panel of her court or in one

[[Page S6002]]

instance where she agreed with the rest of the court on the law and 
differed only on the facts. More to the point, they were cases of such 
limited precedential value that the decisions were not even published. 
When asked about each case, Judge White testified that she accepted the 
Michigan Supreme Court's decision as correct. I hope that in a long 
career spanning thousands of decisions, she will not be judged by a few 
unremarkable cases. Republicans have certainly asked us not to focus on 
a small handful of cases decided by other Bush nominees, even when the 
cases in question were far more noteworthy.
  Republicans have simply not been able to point to anything in Judge 
White's long and distinguished career that should disqualify her or 
even justify a negative vote. It is unfortunate that some Republicans 
seem to be trying so hard to find reasons not to support this 
particular nominee.
  I hope that Republican and Democratic Senators will join together to 
support her nomination and the entire package of Michigan nominations 
that President Bush has sent to us after consultation with Senators 
Levin and Stabenow.
  I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Michigan is 
recognized.
  Ms. STABENOW. Mr. President, I rise today to join my friend and 
distinguished colleague in supporting the nominations of Judge Helene 
White, Mr. Raymond Kethledge to the Sixth Circuit Court of Appeals, and 
Mr. Stephen Murphy III to the District Court for the Eastern District 
of Michigan. I also want to remember those whom Senator Levin spoke of 
as well.
  I thank, particularly, Chairman Leahy for working with us in a very 
diligent manner, for his patience, and for his commitment and his 
willingness to work with us to move the President's nominations 
forward. It has been a very long process--one that started more than 11 
years ago for Judge Helene White. In fact, I have been here for 8 
years, and she has been waiting more than 11 years for this vote--4\1/
2\ years, originally, to have the hearing. I find that because of the 
length of time she has been waiting, it is difficult to say that 
somehow this was a short-circuited process or a process that happened 
too quickly. It has, in fact, been more than 11 years. I hope this 
serves as an example of how we can come together when both sides, with 
the administration, are willing to work together in a bipartisan 
manner. I am very pleased we have been able to come to this agreement 
together. That is what we have done here.
  Senator Levin and I have worked with the Bush administration, and as 
a result, we have the three nominees for the Federal bench who are in 
front of us. In fact, all three of them were rated ``well-qualified'' 
by the American Bar Association. I urge my colleagues to support them.
  First, let me say a few words about Judge Helene White, who brings 30 
years of legal experience to the Sixth Circuit Court of Appeals. She is 
a graduate of the University of Pennsylvania Law School and the Barnard 
College at Columbia University. Judge White has been a State judge 
since 1981. She has served on both the 36th District Court for the city 
of Detroit and the Wayne County Circuit Court. Since 1992, she has 
served, with distinguished service, on the Michigan Court of Appeals. 
She has participated in more than 4,400 cases in her time as a judge on 
the Michigan Court of Appeals. All told, Judge White will bring more 
than 25 years of bench experience to the Sixth Circuit. While I support 
all of our nominees, Judge White is the only person who brings that 
judicial experience, having served on the bench with distinguished 
service, someone who is respected by all sides for her intellect, her 
fairness, and her balance. I am so very pleased that we are finally at 
this point to be able to vote on this important nomination.
  Secondly, Mr. Raymond Kethledge, who is also nominated for the Sixth 
Circuit Court of Appeals, graduated magna cum laude from the University 
of Michigan and the University of Michigan Law School. I told him that 
even though I went to a rival school--Michigan State University--I will 
support his nomination. In fact, my son is a graduate of U of M. I was 
pleased to see another Wolverine being nominated for this distinguished 
position. Following law school, he served as Senator Spence Abraham's 
judiciary counsel. He then went on to clerk for both Judge Ralph Guy, 
on the Sixth Circuit Court of Appeals, and Justice Kennedy, on the 
Supreme Court, before eventually becoming a partner at Bush Seyferth 
Kethledge & Paige in Troy, MI. I am certainly pleased to support his 
nomination to this position.
  Finally, Mr. Stephen Murphy has been nominated for a seat on the 
District Court for the Eastern District of Michigan. He will bring both 
academic and Federal law experience to the bench. He has taught at the 
University of Detroit Mercy School of Law and the Ave Maria School of 
Law in Ann Arbor. He has practiced as both a Federal prosecutor and a 
defense counsel. He also practiced business litigation as an attorney 
for General Motors. Since 2005, he has served as the U.S. attorney for 
the Eastern District of Michigan.
  I urge my colleagues on both sides of the aisle to support the 
President's nominees. We have worked hard in a bipartisan manner. It 
has taken a long time to get to this point, but I am very pleased we 
are here together supporting these nominees for the Sixth Circuit Court 
of Appeals and the Eastern District of Michigan. I am hopeful that, 
very shortly, we will confirm each of these nominees.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. CARDIN. Mr. President, I listened to Senator Specter talk about 
one of our most important responsibilities; that is, the confirmation 
process on the President's nominations for our courts, which are 
lifetime appointments. It is a major responsibility each of us has in 
the Senate.
  I think the way this confirmation process has proceeded with the 
three judges before us is an example as to how we should be working on 
the confirmation of judges. First, I think the process under which the 
Senators worked with the White House on the appointments is a model 
that should be used, I hope, in more circuits, where there is a real 
working relationship between the Senators and the White House to come 
up with the best qualified individuals to serve on the Federal bench. I 
congratulate Senators Levin and Stabenow for the manner in which these 
nominations were brought forward.
  Second is the confirmation process before the Judiciary Committee. I 
spent a lot of time reading the backgrounds on each of our nominees, as 
well as the hearing itself. I must tell you that as a result of reading 
the background material, as a result of the confirmation hearings, I am 
a strong supporter of Judge White for her confirmation to the court of 
appeals. I also support Mr. Kethledge for the court of appeals. I must 
tell you, in reading his background, I was a little concerned because 
he didn't have any real experience in writing opinions, didn't have 
experience in trying cases, as far as a judge is concerned, and there 
wasn't much to judge his ability to reason on the court of appeals by 
his background. But I must tell you, after listening to the 
confirmation hearings, I was convinced that he is well qualified to 
serve on the court of appeals. I am supporting his nomination. That is 
what the confirmation process should be about.
  I listened to Senator Specter have concerns about Judge White because 
of some of her opinions. I must tell you, I am pleased we have before 
us a nominee who has the experience to go onto the court of appeals or 
appellate courts. Judge White has served 15 years on the State 
appellate court. She has written numerous opinions, has participated in 
over 4,000 cases, served 12 years on the circuit court in Michigan. So 
she has trial court experience as a judge, and she has appellate court 
experience as a judge.
  Quite frankly, I have been disappointed by a lot of the nominees who 
have been brought forward by the White House because they have brought 
forward individuals who do not have experience to go on our second 
highest court. I think experience is important. I raised those concerns 
during Judge Elrod's confirmation hearing and Judge Haynes's hearing. I 
would like to have people with more experience so that we can judge 
their qualifications.

[[Page S6003]]

  In Judge White's case, we have that record, and it is a great one. 
Has she been reversed in her 4,000 decisions? Yes. That is why we have 
appellate courts. But she has never been challenged as far as her 
reasoning and her fairness and her demeanor. In fact, she has been 
rated by the American Bar Association as ``well-qualified.''
  One more thing, Mr. President, as to why I strongly support Judge 
White's confirmation, and that is the manner in which she handled the 
confirmation hearings. They were not easy hearings. There were tough 
questions that were asked. She exercised the type of demeanor I want to 
see in our Federal judges. She exercised the type of response that I 
think represents the types of qualifications I want to see on our 
Federal bench. So I am very much supporting her confirmation. I hope 
she will receive a strong vote on the floor.
  I urge my colleagues to support all three of the Michigan judges who 
are before us for confirmation.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I appreciate the comments of my colleagues. 
First, I commend the two Senators from Michigan, who spent years 
working out this conclusion for these three nominees to be here. I 
commend Senator Levin and Senator Stabenow for working so hard. Senator 
Cardin spent so much time at the hearing with me. I appreciate the 
amount of time he spent there. His words of calm reasoning, but with 
questions that cut right to the importance of the hearing, were 
extremely valuable.
  If nobody else is seeking recognition, I am going to suggest the 
absence of a quorum in a moment. So that Senators will understand, at 
6:30 I will call off the quorum, and the time will be yielded back on 
both sides. Then we will go to a rollcall vote on Helene White.
  If Judge White is confirmed, as I fully expect she will be, then we 
will go to the next two judges, but only if she is confirmed. Again, 
Senator Specter and I have both said we expect she will be. We will go 
to the next two judges, and I don't know of anyone who will require a 
rollcall vote on those two judges.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the nominee.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  Is all time yielded back?
  Mr. LEAHY. I am authorized to yield back all time on both sides. I 
yield back all time on both sides.
  The PRESIDING OFFICER. All time is yielded back. The question is, 
Will the Senate advise and consent to the nomination of Helene N. 
White, of Michigan, to be United States Circuit Judge for the Sixth 
Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from Massachusetts (Mr. Kennedy), and the Senator 
from Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Missouri (Mr. Bond) and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 63, nays 32, as follows:

                      [Rollcall Vote No. 156 Ex.]

                                YEAS--63

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Coleman
     Collins
     Conrad
     Crapo
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagel
     Harkin
     Hatch
     Inouye
     Isakson
     Johnson
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Stabenow
     Stevens
     Tester
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--32

     Alexander
     Allard
     Barrasso
     Bennett
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Craig
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hutchison
     Inhofe
     Kyl
     Martinez
     McConnell
     Roberts
     Specter
     Sununu
     Thune
     Vitter
     Wicker

                             NOT VOTING--5

     Bond
     Byrd
     Kennedy
     McCain
     Obama
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid on the table, and the President 
shall be immediately notified of the Senate's action.

                          ____________________