[Congressional Record Volume 154, Number 118 (Thursday, July 17, 2008)]
[Senate]
[Pages S6892-S6895]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATIONS OF PAUL G. GARDEPHE TO BE UNITED STATES DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF NEW YORK AND KIYO A. MATSUMOTO TO BE UNITED
STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK
Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the Senate
now proceed to executive session to consider the following nominations:
Calendar Nos. 687 and 688, and that the Senate proceed to vote on
confirmation of the nominations; that upon confirmation of the
nominations, the motions to reconsider be laid upon the table, en bloc,
the President be immediately notified of the Senate's action, with no
further motions in order, and the Senate then resume legislative
session; and that any statements relating to the nominations be printed
in the Record; and that after this consent is granted, Senator Specter
of Pennsylvania be recognized for 1 hour.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the Senate will go into executive session
and proceed to the consideration, en bloc, of Executive Calendar Nos.
687 and 688, which the clerk will report.
The assistant legislative clerk read the nominations of Paul G.
Gardephe, of New York, to be United States District Judge for the
Southern District of New York; and Kiyo A. Matsumoto, of New York, to
be United States District Judge for the Eastern District of New York.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nominations of Paul G. Gardephe, of New York, to be U.S.
District Judge for the Southern District of New York, and Kiyo A.
Matsumoto, of New York, to be U.S. District Judge for the Eastern
District of New York?
The nominations were confirmed.
Mr. LEAHY. Mr. President, today we continue to make progress by
having confirmed two more nominations for lifetime appointments to the
Federal bench: Paul Gardephe for the Southern District of New York and
Kiyo Matsumoto for the Eastern District of New York.
These nominees each have the support of the New York Senators, who
worked with the White House to identify a slate of consensus nominees.
I thank Senators Schumer and Clinton for their consideration of these
nominees. I also thank Senator Schumer for chairing the hearing on
their nominations.
It is ironic that again this week the Senate Republicans have made
another attempt to make a partisan, election-year issue out of the
confirmation of judicial nominations. This is the one area where the
numbers have actually improved during the Bush Presidency while the
life of hardworking Americans has only gotten more difficult. Inflation
is now on the rise, jobs are being lost, gas prices have skyrocketed,
food prices have soared, health care is unaffordable and what
Republicans come to the floor to pick a partisan fight about today is
the pace of judicial confirmations.
Americans have seen the unemployment rate rise to 5.5 percent and
trillions of dollars in budget surplus have turned into trillions of
dollars of debt. This week General Motors announced layoffs. The annual
budget deficit is in the hundreds of millions of dollars, the dollar
has lost half its value and the costs of the Iraq war and interest on
the national debt amount to $1.5 billion a day. And today Republicans
spent their time on the Senate floor--after the Democratic leadership
of the Senate had pushed through two more judicial confirmations to
lifetime appointments--to complain about the pace of judicial
confirmations.
When President Bush took office, the price of gas was $1.42 a gallon.
Today it is at an all-time high of over $4.10 a gallon. The Nation's
trade deficit widened 8 percent in April alone due to the surging gas
prices, and is now at its highest level in 13 months. The housing
crisis and mortgage crisis threaten the economy. The Chairman of the
Federal Reserve gave sobering testimony this week to the Senate and the
House. The stock market lost 2,000 points in the first 6 months of the
year and went
[[Page S6893]]
under 11,000. But Republicans want to talk about judicial
confirmations, an issue that they hope will charge up rightwing voters.
Struggling Americans--no not whiners, but hardworking Americans
trying to do the best they can for their families--are more concerned
about critical issues they face in their lives each day. They are
concerned about affording to heat their homes this winter. They are
concerned about gas prices that have skyrocketed so high they do not
know how they will afford to drive to work. They are concerned about
the steepest decline in home values in two decades. More and more
Americans are affected by rising unemployment, with job losses for the
first 6 consecutive months of this year tallying over 438,000.
Americans are worried about soaring health care costs, rising health
insurance costs, the rising costs of education and rising food prices.
The partisan, election-year rhetoric over judicial nominations, at a
time when judicial vacancies have been significantly reduced, is a
reflection of misplaced priorities.
Our progress today in confirming two more nominations for lifetime
appointments shows that when the President works with home state
Senators to identify consensus, well-qualified nominees, we can make
progress, even this late in an election year.
Paul Gardephe has been a partner and chair of the Litigation
Department at the New York law firm of Patterson, Belknap, Webb & Tyler
LLP since 2003. Previously, Mr. Gardephe worked in the private sector
and also held several positions with the Department of Justice,
including special counsel for the Office of the Inspector General.
Kiyo Ann Matsumoto is a U.S. magistrate judge in the Eastern District
of New York. Prior to her appointment to the bench in 2004, Judge
Matsumoto served as an assistant U.S. attorney for the Eastern District
of New York and also worked in private practice. Judge Matsumoto is
only the fourth Asian-American judge appointed by this President in
nearly 8 years. Her mother and father spent time in an internment camp
during World War II, one of the dark days in American history when we
allowed fear and prejudice to undermine our commitment to liberty and
justice. Now Judge Matsumoto is poised to be confirmed to a lifetime
appointment to the Federal bench, charged with protecting the rights of
all Americans.
I congratulate the nominees and their families on their confirmation
today. The Federal judiciary is the one arm of our Government that
should never be political or politicized, regardless of who sits in the
White House. I will continue in this Congress, and with a new President
in the next Congress, to work with Senators from both sides of the
aisle to ensure that the Federal judiciary remains independent, and
able to provide justice to all Americans, without fear or favor.
Even while we hear a steady stream of grumbling from Republicans,
responding to partisan pressure from special interest groups, the
Senate continues to make progress in reducing judicial vacancies to
lows not seen in decades. We have gone quite a ways to make up for the
abuses the Republicans committed during the Clinton years. Since the
years in which Republicans pocket-filibustered more than 60 of
President Clinton's moderate and qualified judicial nominees, and
judicial vacancies topped 100, we have cut vacancies by more than half
and reduced circuit court vacancies by almost three-fourths from a high
point of 32, to just nine throughout the entire country and throughout
all 13 Federal circuits.
The contrast is stark between the Democratic majority that cut
vacancies dramatically during the Bush Presidency and the Republican
majority that doubled them during the Clinton Presidency. The 100
nominations we confirmed in only 17 months in 2001 and 2002, while
working with a most uncooperative White House, reduced the vacancies
by 45 percent by the end of 2002. Consider this snapshot: On July 15,
2000, when a Republican Senate majority was considering the judicial
nominees of a Democratic President in Presidential election year, there
were 61 judicial vacancies. Twenty were circuit court vacancies On July
15 of this year, before today's two confirmations, there were 42 total
vacancies throughout the country, and for the first time in decades,
circuit court vacancies were in single digits, at just 9. For the first
time since Republicans began their obstruction of President Clinton's
judicial nominees in 1996, circuit vacancies had been reduced to single
digits.
With 40 additional confirmations last year, and another 16 so far
this year, the Senate under Democratic leadership has already confirmed
more judges than in the entire last Congress. In 2 full years with a
Republican chairman and a Republican Senate majority working to confirm
the judicial nominees of a Republican President, 54 nominations were
confirmed. After the two confirmations today, we will have already
reached 56 judicial confirmations for this Congress. Two additional
nominations remain pending on the Senate's Executive Calendar. With a
little cooperation from Republican Senators, who objected earlier today
to the majority leader's proposal to consider two judges today with a 1
hour time agreement, those two judicial nominations could also be
confirmed. Then we will not only have exceeded the total of the last
Congress but equaled under Democratic leadership the total number of
nominees confirmed in 4\1/2\ years of Republican control of the Senate.
Truth be told, President Bush's judicial nominees have been confirmed
faster by the Democratic majority than by the previous Republican
majority of the Senate. To date, the Democratic majority has confirmed
156 of President Bush's judicial nominations in the 3 years that I have
chaired the Judiciary Committee. Judicial vacancies have fallen from
9.9 percent at the start of the Bush administration to just 4.7 percent
today.
The colloquies on the Senate floor today included misinformation
about judicial emergency vacancies. Many of these resulted from the
Republican slowdown during the Clinton years. In fact nearly half of
the judicial nominees the Senate has confirmed while I have served as
the chairman of the Judiciary Committee have filled vacancies
classified by the Administrative Office of the Courts as judicial
emergency vacancies. Eighteen of the 27 circuit court nominees
confirmed while I have chaired the committee filled judicial
emergencies, including 9 of the 10 circuit court nominees confirmed
this Congress. This is another aspect of the problem created by
Republicans that we have worked hard to improve. When President Bush
took office there were 28 judicial emergency vacancies. Those have been
reduced by more than half.
Republicans playing to the far right wing of their political base
ignore this progress. They also ignore the crisis they had created by
not considering circuit nominees in 1996, 1997 and 1998. They ignore
the fact that they refused to confirm a single circuit nominee during
the entire 1996 session. They ignore the fact that they returned 17
circuit court nominees without action to the White House in 2000. They
ignore the public criticism of Chief Justice Rehnquist to their actions
during those years. They ignore the fact that they were responsible for
more than doubling circuit court vacancies during their
pocket filibusters of Clinton nominees or that we have reduced those
circuit court vacancies by almost three quarters.
In fact, as the Presidential elections in 2000 drew closer, and when
the judicial vacancy rate stood at 7.2 percent, then-Judiciary
Committee Chairman Orrin Hatch declared that ``There is and has been no
judicial vacancy crisis,'' and that 7.2 percent was a ``rather low
percentage of vacancies that shows the judiciary is not suffering from
an overwhelming number of vacancies.'' As a result of their inaction,
the vacancy rate continued to rise, reaching 10 percent when the
Democrats took over the Senate majority in 2001.
Democrats have reversed course. We have cut circuit court vacancies
by nearly three-quarters, from a high of 32 to only 9. With the
confirmation of two nominees today, the vacancy rate will be just 4.7
percent.
I have yet to hear praise from a single Republican for our work in
lowering vacancies. I also have yet to hear in the Republican talking
points any explanation for their actions during the 1996 congressional
session, when the Republican Senate majority refused to allow the
Senate to confirm even one circuit court judge.
[[Page S6894]]
Republicans' childish antics this year include boycotting business
meetings of the Judiciary Committee, cutting hearings short or
objecting to them being held and cutting short business meetings of the
committee. Today we were scheduled to consider a number of bipartisan
measures. Several are important items on which Republicans had already
delayed consideration since June. They include the bipartisan bill to
reauthorize the Juvenile Justice and Delinquency Prevention Act, a
bipartisan OPEN FOIA bill and the bipartisan William Wilberforce
Trafficking Victims Protection Reauthorization Act. In addition, we had
before us the Fairness in Nursing Home Arbitration Act, the Fugitive
Information Networked Database Act, the Methamphetamine Production
Prevention Act and the National Guard and Reservists Debt Relief Act.
I had hoped that today we would be able to report these measures. A
few words about one of them--the legislation to reauthorize the William
Wilberforce Trafficking Victims Protection Act. This bill would
strengthen our efforts to stop the abhorrent practice of human
trafficking around the world. Our bill enhances protections for victims
of these terrible crimes. Human trafficking is a modern-day form of
slavery, involving victims who are forced, defrauded or coerced into
sexual or labor exploitation. These practices continue to victimize
hundreds of thousands around the word, mostly women and children, and
we must do all that we can to be more effective in confronting this
continuing problem. I thank Senator Biden for his leadership.
Unfortunately, Republican partisan antics have gotten in the way of
progress on this front and delayed the Judiciary Committee and the
Senate from acting on this measure.
Rather than meet and work on the human trafficking bill and the
others, a number of the Republican Senators who serve on the Judiciary
Committee came to the Senate floor while Republicans objected to the
committee meeting. That is too bad.
They previously boycotted business meetings for the month of February
when we were trying to report judicial nominations. That only slowed
our progress. Then, when we tried to expedite consideration of two
circuit court nominations in May, they objected. Those judicial
nominations were finally confirmed late in June.
As my friend, the senior Senator from Pennsylvania may recall, while
chairman of the committee, I helped him move forward with the judicial
nominations of Nora Barry Fischer, and Thomas Hardiman to the Third
Circuit, and with Legrome Davis, Michael Baylson, Cynthia Rufe,
Christopher Conner, John Jones III, David Cercone, Timothy Savage,
Terrence McVerry, Arthur Schwab, James Gardner to the Federal district
courts in Pennsylvania despite the way President Clinton's Pennsylvania
nominees were treated. I also had the committee proceed to the Third
Circuit nomination of D. Brooks Smith, a nomination which I did not
support. As ranking member, I worked with Chairman Hatch and Chairman
Specter in connection with the confirmations of Michael Fisher and
Franklin van Antwerpen to the Third Circuit, as well as the nominations
of Thomas Hardiman, Gene Pratter, Lawrence Stengel, Paul Diamond, Juan
Sanchez, and Thomas Golden to Federal district court in Pennsylvania.
With the exception of two nominees from Pennsylvania currently pending
before the Judiciary Committee that do not have the support of their
home State Senators, every judicial nominee for a Pennsylvania vacancy
nominated by President Bush has been confirmed by the Senate. That is
23 nominations in all, including four to the Third Circuit.
As my good friend from Iowa may recall, I expedited confirmation of
John Jarvey and Michael Mellow to the Eighth Circuit, and James
Gritzner and Linda Reade to the Federal district court in Iowa. As we
discussed at a recent committee business meeting, thanks to all our
work, there is no Federal judicial vacancy in Iowa, not one.
I did not hear the Senator from Arizona recall my cooperation over
the years in the confirmation of a number of Federal judges in Arizona.
The Senate confirmed David Campbell, Neil Vincent Wake, Frederick
Martone, Cindy Jorgenson, and David Bury. Among the last judges
confirmed in 2000 was the Senator from Arizona's close friend James
Teilborg. I accommodated Senator Kyl as recently as last month in
connection with the most recent Federal judge appointed in Arizona,
Judge Murray Snow. That filled the only vacancy on the Federal bench in
Arizona. So like Iowa, given our action, there is no Federal judicial
vacancy in Arizona, not one.
As for my friend from Alabama, he is another member I have gone out
of my way to assist over the years. In particular, I remember the
confirmation of Kristi Dubose. There were also the confirmations of
Karon Boudre, Callie Granade and Mark Fuller while I chaired the
committee. The Senate has also confirmed William Steele, L. Scott
Coogler, R. David Proctor, Virginia Hopkins and W. Keith Watkins, all
of whom I supported. Having helped confirm 10 Federal judges in Alabama
since 2001, I wondered why he did not note that Alabama is another
State that, thanks to our efforts, has no judicial vacancy, not one.
I look forward to a time when Senators from the other side of the
aisle return to work with us on the important legislative business of
the Judiciary Committee. It would be refreshing if they recognized the
progress we have made on filling judicial vacancies. We have not
pocket-filibustered 60 of President Bush's judicial nominees, as they
did to President Clinton. We have not engaged in tit for tat. But, as
even Senator Specter acknowledged this morning, nothing we do will
satisfy Republican Senators.
Mr. COBURN. Mr. President, today I join my colleagues in calling for
up-or-down votes for the President's judicial nominees. I supported the
decision not to attend the Judiciary Committee's Executive Business
Meeting this morning because the committee does not appear to be
serious about its responsibility to process nominees. Today's agenda
contained no nominees, and no hearings have been scheduled for the many
qualified individuals who await them. One of our highest constitutional
responsibilities in the Senate is the consideration of judicial
nominees. If the Judiciary Committee agenda does not include nominees,
there is little point in attending its meetings. I hope the chairman
will take note of Republicans' absence and schedule nominees for both
hearings and markup without further delay.
Now I would like to take a minute to respond to a comment made by the
majority leader this morning. He said, ``I can't ever remember going
home and somebody . . . saying, `Could you guys do some more judges? We
need to take care of this judges problem.' ''
For the record, I would like to say that I have not had the same
experience with my constituents in Oklahoma. In fact, I frequently hear
from them regarding their interest in judicial nominations. Here are
just a few examples:
Lou Baber, from Oklahoma City, writes: ``I am incensed by the U.S.
Senate's lack of action on the federal judicial nominees President Bush
has proposed for seats on district and appeals courts. . . . I hope you
will take action in the coming weeks on an issue that has already
seriously damaged the Senate's reputation.''
Samantha Jones, from Claremore, writes: ``Please . . . vote for . . .
judicial nominees in the confirmation process. They deserve fair
treatment . . . we need good judges.''
Peggy Low, of Yukon, writes: ``Will you please press the other
senators to give the judicial nominees an up-or-down vote, pronto? That
is their job and [it is] so overdue.''
Barbara Tipton, of Chandler, writes: ``Please push to have the
judicial nominees come to the full Senate for a vote.''
John and Pam Rawlins, of Ponca City, write: ``I want to applaud and
thank Senator Coburn for bold[ly] standing up for the many judicial
nominees that are blocked in the Senate. KEEP IT UP! That is what you
are elected to do. We in Oklahoma understand this and [are] 1000
percent behind you.''
As I said, there are just a few of the many letters I have received
from home about this issue. I will ask that they be printed in the
Record.
As demonstrated by the statements I just read, my constituents
understand what some in this body do not: The
[[Page S6895]]
issue is not about getting more judges, it is about confirming quality
judges who will uphold the Constitution. Isn't this our clear
constitutional responsibility?
Part of the reason I decided to run for the Senate was my desire to
see judicial nominees receive an up-or-down vote and my desire to
restore a restrained judiciary, bound by our Constitution, laws and
treaties. Too often fundamental liberties and important decisions are
taken away from the American people by judicial fiat. The Constitution
gives the American people, through their elected officials, the right
of self-determination by allowing legislative bodies closest to the
people decide the important issues of the day.
You don't have to look far to find examples of judges overriding the
people's will--one recent example affected my home state of Oklahoma.
Last month, in a 5-4 decision, the Supreme Court held that the death
penalty is an unconstitutional punishment for the rape of a child. The
majority assumed a ``national consensus'' that the death penalty for
child rape was unconstitutional and then substituted its own
independent judgment for that of the people and the law, declaring it
inconsistent with ``evolving standards of decency.'' Yet Oklahoma,
along with five other States, had laws permitting the death penalty for
such offenses. Congress had even adopted the penalty, a fact somehow
overlooked by the Court. One decision by five unelected judges struck
those laws down.
Americans are right to be outraged by this kind of judicial activism.
Oklahomans chose to protect their children by allowing the death
penalty for anyone convicted twice of rape, sodomy or lewd molestation
involving children under 14. Now, because a handful of judges halfway
across the country declared the state's decision to be inconsistent
with so-called ``evolving standards of decency,'' their sound judgment
has been overruled.
Given this example and many others like it, it is clear that
Americans are concerned about the Senate's treatment of judicial
nominees. If further evidence is needed to prove the point, a recent
Rasmussen poll shed light on the issue. It found that, by a 69 percent
to 20 percent margin, voters believe that judges should interpret the
law as it is written. Sixty-one percent say they trust voters more than
judges or elected officials to decide important decisions facing the
country.
The obstruction that has occurred in the 110th Congress is
unacceptable. It is time to break this stalemate and confirm more of
the President's highly qualified nominees.
I ask unanimous consent that the letters to which I referred be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
I am incensed by the U.S. Senate's lack of action on the
federal judicial nominees President Bush has proposed for
seats on district and appeals courts. For this reason, I am
urging you to use your influence to urge the Judiciary
Committee and the Majority Leader to prioritize this
important issue.
Many of the nominees for these important positions are
well-qualified and have already gone through the Senate's
confirmation process before. There is no reason not to
consider their candidacy for a federal judgeship. As a member
of the Center for Moral Clarity, a national Christian
grassroots organization, I hope you will take action in the
coming weeks on an issue that has already seriously damaged
the Senate's reputation.
Thank you for considering my opinion.
Lou Baber,
Oklahoma City, OK.
____
Please make a vote for the judicial nominees in the
confirmation process. They deserve fair treatment in this. We
need good judges.
Samantha Jones,
Claremore, OK.
____
Dear Dr. Coburn, will you please press the other senators
to give the judicial nominees an up or down vote pronto? That
is their job and so overdue. Thank you for all your good work
on behalf of the unborn and for our country.
Sincerely,
Peggy Low,
Yukon, OK.
____
Please push to have the judicial nominees to come to the
full Senate for a vote. Thank you.
Barbara Tipton,
Chandler, OK.
____
I want to applaud and thank Senator Coburn for boldly
standing up for the many judicial nominees that are blocked
in the senate. KEEP IT UP! That is what you are elected to
do. We in Oklahoma that understand this are 1000 percent
behind you.
Go with our blessings!
John and Pam Rawlins,
Ponca City, OK.
Mrs. CLINTON. Mr. President, I am pleased that the Senate today
confirmed the nomination of two New Yorkers to the Federal bench.
Kiyo Matsumoto had served as a magistrate judge in the Eastern
District of New York since 2004. Prior to her appointment, Judge
Matsumoto served in the U.S. Attorney's Office for the Eastern District
of New York for more than two decades and held the position of deputy
chief of the civil division in that office. Judge Matsumoto has taught
as an adjunct law professor at the New York University School of Law as
well as worked as a legal research and writing instructor at the
Brooklyn Law School. Judge Matsumoto has also served as a member of the
Federal Court Committee of the City of New York Bar. Now that she has
been confirmed, Judge Matsumoto becomes only the eighth active Asian-
Pacific American Senate-confirmed judge on the Federal bench out of
approximately 850 judges nationwide.
Paul Gardephe was most recently a partner and chair of the Litigation
Department at the New York law firm of Patterson, Belknap, Webb & Tyler
LLP. Previously, Mr. Gardephe was a special counsel for the U.S.
Department of Justice Inspector General's Office. He has also worked
for the law department of Time Inc., where he held the positions of
vice president, litigation deputy general counsel, and Associate
General Counsel. Prior to this work, Mr. Gardephe served in the U.S.
Attorney's Office for the Southern District of New York for nearly 10
years. For the past 15 years, Mr. Gardephe has taught trial advocacy at
New York Law School as an adjunct professor.
The careers of both nominees have been marked by a record of
achievement and a commitment to public service. I am certain that each
of these individuals will be a credit to the Federal judiciary and will
continue to exhibit the qualities that have defined their entire
careers: devotion to justice and respect for the rule of law. I am
proud to have supported each of their nominations, and I commend
Senator Schumer and the members of the Judiciary Committee on their
diligence in ensuring that our Federal courts are served by men and
women of such distinction.
The PRESIDING OFFICER. Under the previous order, the President will
be immediately notified of the Senate's action.
____________________