[Congressional Record Volume 155, Number 138 (Tuesday, September 29, 2009)]
[Senate]
[Pages S9918-S9921]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JEFFREY L. VIKEN TO BE UNITED STATES DISTRICT JUDGE FOR 
                      THE DISTRICT OF SOUTH DAKOTA

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The assistant bill clerk read the nomination of Jeffrey L. Viken, of 
South Dakota, to be United States District Judge for the District of 
South Dakota.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, as you know, one of the duties granted to 
the Senate in the Constitution is the advice and consent of judges 
appointed by the President to the bench. The lifetime appointment of a 
judge is a very serious decision, one that has a lasting impact on our 
democracy.
  Today the Senate takes up the nomination of Jeff Viken to be Federal 
district judge for South Dakota. It is this nomination that I wish to 
speak of today.
  So far this Congress, under the new President, has confirmed two 
judges. One of those judges is Supreme Court Justice Sonia Sotomayor 
and the other is a Second Circuit judge. I am proud to have a South 
Dakotan as the third judge to be confirmed by the Senate. However, we 
are 9 months into this new administration, and we have only confirmed 
two judges.
  I must say I think the process of nominating and confirming judges 
has become increasingly overpoliticized. While I believe a President 
should have some latitude in selecting judges, they should not be 
ideologues.
  Jeff attended law school at my alma mater, the University of South 
Dakota, where our attendance overlapped. I received my law degree in 
1975, and Jeff received his law degree in 1977. Jeff has served as an 
assistant U.S. attorney and acting U.S. attorney for South Dakota 
before going into private practice. His extraordinary reputation of 
skill and integrity during his years of public and private law practice 
will translate well and benefit this court. The same can be said of his 
tenure as the Federal Public Defender for North and South Dakota, a job 
he has held since 2003.
  Regarding his nomination, Jeff received a ``well qualified'' rating 
from the American Bar Association. It is clear he has an accomplished 
resume and many years of public service. It is a great honor that 
President Obama has placed on Jeff. We are very fortunate to have a 
great member of the South Dakota legal community nominated to this 
post. Jeff has many years of public service, and we look forward to his 
future work for the people of South Dakota. Most importantly, his 
nomination to the bench is a victory for justice and the rule of law, 
not only for South Dakota but for our Nation.

  I have known Jeff for a long time. I find him to be a nominee of good 
moral character and standing in the community. It is with great 
satisfaction that I will cast my vote today for the confirmation of 
Jeff Viken to be the next U.S. Federal district judge for South Dakota. 
I urge my colleagues to support this very qualified nominee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank Senator Johnson for his comments 
and value his opinion on this nomination. I look forward to seeing this 
nominee confirmed.
  The confirmation process we have in this country is a very important 
matter. Our Democratic colleagues are, understandably, inclined to be 
supportive of whomever the President puts up. It has been a recognized 
responsibility for the minority party, the party that is not of the 
President's party, to ask questions and dig into the backgrounds of 
these nominees and move the good ones and raise the proper questions if 
there are problems.
  Mr. Jeffrey L. Viken has an impressive background. Early in his 
career, he was an Assistant and Acting U.S. attorney. He is a member of 
the trial lawyers plaintiff bar association in South Dakota. He has 
been in private practice for 22 years, and for the last 6 years he has 
been a Federal Public Defender where he defends criminal cases. So he 
has been a prosecutor and a public defender. I guess that is a pretty 
good match, and I am happy we were

[[Page S9919]]

able to work out this agreement with the majority and process this 
nomination very quickly. Actually, he was voted out after his first 
appearance before the Committee and is already on the floor.
  But I would note for some people who say there has been a dragging of 
feet on the nominations that the President did not send this nomination 
forward, his first district court nominee to the Senate, until June 25, 
a few months ago, when the Senate and the Judiciary Committee were 
consumed with the Supreme Court nomination of now-Justice Sotomayor. 
Understandably, Chairman Leahy could not and did not report his 
nomination until after that confirmation process was over, until after 
Labor Day. We were then able to come to a time agreement and also to 
vote on the nomination of Judge Gerard Lynch, who is a highly able 
nominee but an activist judge with a philosophy too close, by my way of 
thinking, to Justice Brennan on the Supreme Court for whom he clerked. 
So I think it is healthy for us to ask questions. I voted for Judge 
Lynch for the Second Circuit, and he was confirmed by a very large 
vote.
  We will continue to work with the majority party and the President 
and move the nominees at an appropriate pace.
  I wanted to note a little bit more about the pace of nominations. You 
know, it is not possible for the Senate to confirm a nomination until 
the President has nominated someone. I have heard my colleague, the 
Chairman, Senator Leahy, say that we haven't had enough confirmations, 
but I would note that there is an 11-percent vacancy rate in the 
Federal courts. That is not an extraordinarily high vacancy rate. It 
takes some time to do background checks and for the President to 
consider the people he might want to nominate and to consult with 
Members of the Senate as he does so. I would note that at this moment 
there are 74 Federal District Court vacancies--Judge Viken is nominated 
for one--but there are only 9 nominees before the Senate. There are 28 
circuit and district court seats that are deemed to be judicial 
emergencies, but only 6 nominees have been submitted to the Senate for 
those judicial emergency seats. We can't confirm people until they are 
nominated. We can't do a background check on nominees until they have 
been nominated. We can't have the information and their records and 
their FBI backgrounds and the bar association evaluations take place 
until they have been nominated.
  I would just make my commitment that we will continue to move 
nominees like Mr. Viken in a timely fashion. I reviewed his record. I 
have also carefully reviewed his responses to questions from the Senate 
Judiciary Committee. One of his answers, I have to note, was troubling 
to me. He stated that he believes he fits President Obama's standard 
for the types of judges he will nominate to the Federal courts; that 
is, he meets the President's ``empathy standard.''
  President Obama described that standard as follows:

       We need somebody who's got the heart, the empathy, to 
     recognize what it's like to be a teenage mom, the empathy to 
     understand what it's like to be poor, or African-American, or 
     gay, or disabled, or old. And that's the criteria by which I 
     am going to be selecting my judges.

  In 2005, when then-Senator Obama was in the Senate and he explained 
on the floor his vote against Chief Justice John Roberts, who I think 
is one of the finest nominees we have seen in decades and whose 
testimony before the Judiciary Committee was stunning in its 
impressiveness and his grasp of the legal issues, his comprehensive 
knowledge of how the Court worked, and cases--there was not a case 
brought up that he didn't seem to fully know about. Virtually every 
case the Supreme Court had ever written he seemed to be knowledgeable 
about. It was just a tour de force. Senator Obama voted against Judge 
Roberts and stated that 5 percent of cases are determined by ``one's 
deepest values and core concerns . . . and the depth and breadth of 
one's empathy.'' We can only take this to mean that the President 
believes that in 5 percent of all cases, judges should not set aside 
their personal beliefs, biases, or experiences. I think this is a 
radical and a dangerous departure from the most important pillar, the 
fundamental pillar of the judicial system--judicial impartiality.
  Whatever the empathy standard is, it is not law, and we have courts 
of law in this country. Whenever a judge employs his personal beliefs, 
biases, or experiences to make a decision that favors one party, is it 
not true that he necessarily has, therefore, disfavored the other party 
as a result of his personal beliefs and biases? For every litigant who 
benefits from the judge's so-called empathy, there is a litigant who 
loses not on the basis of law but because the judge did not identify 
with them.
  When people are nominated to our Federal bench, we ask them to take a 
judicial oath before they take office. The oath embodies the time-
honored American tradition of blind justice. The oath says this:

       I . . . do solemnly swear that I will administer justice 
     without respect to persons, and do equal right to the poor 
     and to the rich, and that I will faithfully and impartially 
     discharge and perform all the duties incumbent upon me . . . 
     under the Constitution and laws of the United States, so help 
     me God.

  I am pleased to say the Supreme Court has not yet struck down ``so 
help me God'' in the oath, and hopefully they never will. I think the 
President's standard for judicial nominees plainly conflicts with that 
oath.
  We have had a big discussion about that, and it is not a little bitty 
matter. It is not a small matter. Judges take the oath to be impartial. 
I practiced law in Federal court for many years, and I have always 
believed and expected that a judge who heard my case would rule on the 
law fairly and objectively. If I lost and did not have sufficient law 
or evidence and logic to support my position, I did not expect to 
prevail. That is the kind of concept that underlies American justice.
  Aside from nominee David Hamilton, almost every one of President 
Obama's nominees, including Justice Sotomayor, has rejected outright 
the empathy standard. So at first blush, I found Mr. Viken's answer 
that he believes he fits that standard to be concerning. However, his 
answers to questions we submitted to him for the record provide maybe a 
more complete view. This is what he said in his answer in writing:

       A judge's consideration of a case must always be governed 
     by impartiality, evenhandedness, attention to the facts 
     presented by the parties, and respect for established law. 
     Empathy is a personal characteristic which may assist a judge 
     in analyzing the human circumstances which bring people 
     before the court. But the law and not the personal 
     experiences of jurists is the path to justice in considering 
     each case.

  I think that is OK. I am not sure how you can have any empathy--
empathy is a personal characteristic, maybe? I would hate to disagree 
with the President who nominated me, but that is a pretty good 
statement overall.
  He also stated he believes that, ``The role of a Federal district 
judge encompasses diligent legal scholarship''--that is true--``a 
strong work ethic''--true--``impartial and dispassionate consideration 
of proven facts and reasoned legal arguments, fidelity to binding and 
persuasive precedent, and respect for all who appear before the 
court.''
  I think that is good statement. I think if he will conduct himself on 
the bench according to those standards he will do well. And I believe 
he will.
  I am glad to see he is an honors graduate, but he didn't go to some 
of these schools, Senator Johnson, he went to school in South Dakota; 
he has practiced law before judges over the years, a lot of practice; 
and in the course of that, you learn that judges really do--the good 
judges--consistently try to reach the right dispassionate result.
  I think he may have made some statements about empathy that are not 
perfect, but my judgment is that he has been in the courtroom and he 
has been before good judges. I am hopeful he is going to be a very good 
judge.
  We will see. I think the issues become even more problematic when 
someone is nominated for the Supreme Court or for a circuit court 
because those higher courts seem to be the ones who feel less 
compunction in allowing their personal views to influence cases. 
Because this nominee is nominated to a seat on the district court and 
is confined not only by the U.S. Supreme Court but also by his circuit, 
the circuit precedent, and because he stated he believes the role of a 
judge entails the impartial and dispassionate consideration of proven 
facts and reasoned

[[Page S9920]]

legal arguments, fidelity to binding and persuasive precedent, I would 
certainly give him the benefit of doubt and vote in favor of his 
nomination. I am hopeful he will follow through on those statements and 
will interpret the law as written, refraining from imposing personal 
views in his decision and will basically follow the oath to uphold the 
Constitution, first and foremost. Even if he didn't like it, he should 
uphold it.
  In closing, I would like to quote from an essay by the former 
chairman of the Judiciary Committee, Senator Hatch, which was published 
on Constitution Day. He said this:

       The Constitution--its words and their meaning--was 
     established by the people, can only be changed by the people, 
     and is sacredly obligatory upon all government, including 
     judges. That is why in the debate on judicial selection is 
     really a debate over judicial power. It is a debate over 
     whether the Constitution controls judges or judges control 
     the Constitution; over what the Constitution really is, with 
     nothing less than liberty itself at stake.

  I think that is an eloquent statement of the role of a judge, and why 
at its most base level, policy in a democracy must be set by the 
elected branches who are accountable to the people.
  Judges are supposed to be neutral arbiters of the law, deciding a 
case based on the law and facts, without allowing their personal, 
political, or ideological views or biases to enter into the decision-
making process. That is why they put on a robe, to suggest their 
impartiality. That is why they take the oath I quoted from. And that is 
the key ingredient of our legal system, the greatest legal system the 
world has ever known.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Lautenberg.) Who yields time? If no one 
yields time, time will be divided equally.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Viken nomination is the pending question.
  Mr. LEAHY. Mr. President, how much time remains on both sides?
  The PRESIDING OFFICER. The chairman has 17\1/2\ minutes remaining, 
and 5\1/2\ remains with the vice chairman.
  Mr. LEAHY. Mr. President, we are considering the nomination of 
Jeffrey Viken for a lifetime appointment to the U.S. District Court for 
the District of South Dakota.
  President Obama nominated Mr. Viken with the bipartisan support of 
both Senators from South Dakota, Senator Johnson and Senator Thune. Mr. 
Johnson, the distinguished senior Senator from South Dakota spoke just 
a moment ago about his strong support for this nominee.
  Even though we are almost at the last day of September, this is only 
the first Senate confirmation for a Federal district court judge, and 
the first to fill 1 of 74 current Federal trial court vacancies.
  There are more than 90 current vacancies throughout the Federal 
judiciary, and we are soon going to be at near record levels. I 
accommodated the Ranking Member and other Republicans on the Judiciary 
Committee by postponing a hearing on Mr. Viken's nomination while we 
considered the recent Supreme Court nomination, or his nomination would 
have come to the full Senate earlier. But I am pleased that the 
committee unanimously reported the nomination at the beginning of this 
month by a voice vote. I think that the vote tonight, I can virtually 
guarantee you, will be an overwhelmingly positive vote. I hope it is a 
sign that we might finally, finally start making some progress on 
judicial nominations, and do it expeditiously.
  The Senate has to do a better job of restoring our tradition of 
regularly considering qualified, noncontroversial nominees to fill 
vacancies on the Federal bench without needless and harmful delays.
  As I look around this Chamber, I believe I have been here longer than 
anybody else who is presently on the floor. I saw my distinguished 
colleague Senator Inouye step off the floor, who has served here longer 
than I have. But I have been here 35 years. I have been here with both 
Republican and Democratic Presidents. I have never seen a situation 
where there is this kind of slow walking of nominations. We have got to 
go back to the way we have traditionally done it for the good of the 
country.
  I was briefly chairman of the Judiciary Committee during President 
Bush's first term. And even though we had the unfortunate experience of 
61 of President Clinton's nominations being pocket filibustered by a 
then-Republican majority, when I came in during that less than a year 
and a half, we confirmed 100 of President Bush's judicial nominees. I 
think it is an all-time record in speed in getting nominees through. 
That was by a Democratic majority with a Republican President.
  I do want to thank the Committee's ranking member, Senator Sessions. 
I see Senator Sessions on the floor. I do want to thank him. I had, as 
I said, agreed to hold back this nominee, the Viken nomination, because 
of the nomination for Sotomayor, to give time to prepare. But I do want 
to thank him. After we confirmed Judge Sotomayor to be a Justice on the 
U.S. Supreme Court, we moved quickly Mr. Viken's nomination through the 
committee at our business meeting on September 10 without an 
unnecessary holdover period. Unfortunately, now that it has been on the 
Senate Executive Calendar, it still has taken 2\1/2\ weeks to schedule 
Senate approval of a noncontroversial nominee who is probably going to 
be unanimously confirmed, and should be.
  Mr. Viken has a wide range of experience. He has been both prosecutor 
and defender. He is currently the Federal Defender for the combined 
districts of North Dakota and South Dakota. It is not just the 
population, but for those of us who come from New England, the area 
covered in these districts is enormous.
  He served as an Assistant U.S. Attorney and as Acting U.S. Attorney 
for South Dakota. He spent more than two decades in private practice. 
His nomination received a rating of ``well qualified,'' from the 
American Bar Association's Standing Committee on the Federal Judiciary. 
I urge Senators to give him a strong bipartisan vote, and then do a 
better job of filling the rising number of judicial vacancies to ensure 
that justice is not delayed or denied to any American because of 
overburdened courts.
  I hope instead of withholding consent and threatening filibusters of 
President Obama's judicial nominees, the other side would work together 
to treat his nominees fairly, as I did with President Bush's nominees. 
I point out, by this time in President Bush's first term, we had 
already confirmed six of his nominations to the Federal circuit and 
district courts. Now, nine months into President Obama's first term, we 
have confirmed only one of his lower court nominees, despite the fact 
that President Obama made his first nomination two months earlier than 
President Bush did.
  We can do better. It is not just that the Senate can do better, the 
American people deserve better.
  After months of delay on September 17, the Senate finally confirmed 
Judge Gerard Lynch to serve on the Second Circuit. I know that circuit 
well. It covers the States of Vermont, New York, and Connecticut. 
Despite the fact that Judge Lynch's nomination was noncontroversial, 
despite the fact that it was reported out of the committee unanimously 
with the strong support of both Republican and Democratic members, it 
still took more than three months after his nomination was reported by 
the committee for the Senate to confirm it. Delayed. Delayed. Delayed. 
You would think there might be some controversy. But when we finally 
voted, the vote was 94 to 3. It was being held up for months because 
three Members out of 100 Senators wanted to hold it up? That is not 
being responsible. That is not showing the deference to the judiciary 
that we should show.

  Thirteen nominations reported by the Judiciary Committee remain 
pending on the Senate's Executive Calendar, seven of them from back 
before the last recess. Five of these nominations are for appointments 
to be Assistant Attorneys General at the Department of Justice. Five 
out of a total of 11 divisions at the Department remain without Senate-
confirmed Presidential nominees--the Office of Legal Counsel, the Civil 
Rights Division, the Tax Division, the Office of Legal Policy, and the 
Environment and Natural Resources Division.
  Just think of that: nominees to head five out of a total of 11 
divisions at the

[[Page S9921]]

Justice Department are being held by Republicans even though the 
President has made the nominations and even though they have passed out 
of the Senate Judiciary Committee. If any Senator does not like a 
nominee, vote against them. But let's have a vote up or down.
  President Obama made his first judicial nomination back in March. I 
remember it was snowing like mad. He nominated David Hamilton to the 
Seventh Circuit. That nomination has been on the Executive Calendar 
since early June, even though it has the support of the senior most 
Republican in the Senate and one of the most distinguished Senators of 
either party who has ever served, Senator Lugar.
  The nomination of Judge Andre Davis to the Fourth Circuit was 
reported by the committee on June 4 by a vote of 16 to 3. We cannot get 
it considered by the Senate. The nomination of Judge Beverly Baldwin 
Martin to the Eleventh Circuit was reported unanimously from the 
committee by voice vote on September 10 and is strongly supported by 
the two Republican Senators from her State, but still we cannot get it 
scheduled or considered.
  Federal judicial vacancies will soon number 120 unless we start 
moving forward. I mention that just because we should have a history 
before us.
  At least the one bright spot is moving Mr. Viken's nomination. At a 
quarter past 5, it is Mr. Viken. By a quarter past 6, it will be Judge 
Viken. I congratulate him and his family. I remember him coming before 
our committee--a wonderful person, a wonderful family. I can see why 
the two Senators--the senior Senator, a Democratic Senator; the junior 
Senator, a Republican Senator--support him. He should be a judge. But 
then let's start moving these nominations a little more expeditiously.
  Mr. President, what is the time remaining?
  The PRESIDING OFFICER. The Senator has 6 minutes 45 seconds 
remaining, and the minority has 5 1/2 minutes remaining.
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be run equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. LEVIN. 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 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 
nomination.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Jeffrey L. Viken, of South Dakota, to be U.S. district judge for the 
District of South Dakota?
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
is necessarily absent.
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 299 Ex.]

                                YEAS--99

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     LeMieux
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--1

       
     Byrd
       
  The nomination was confirmed.
  The PRESIDING OFFICER. A motion to reconsider is considered made and 
laid upon the table. The President shall be notified of the Senate's 
action.

                          ____________________