[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the quorum call be rescinded.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
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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
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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.
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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,
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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.
____________________