[Congressional Record Volume 155, Number 157 (Tuesday, October 27, 2009)]
[Senate]
[Pages S10756-S10758]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF IRENE CORNELIA BERGER TO BE UNITED STATES DISTRICT JUDGE 
         FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA--Continued

  The PRESIDING OFFICER. Under the previous order, the senior Senator 
from West Virginia is recognized for 5 minutes.
  Mr. BYRD. Mr. President, I am very pleased that the Senate will vote 
today to confirm West Virginia Circuit Court Judge Irene C. Berger for 
a seat on the U.S. District Court for the Southern District of West 
Virginia. I thank Chairman Leahy and Ranking Member Sessions for moving 
the nomination forward. Along with my colleague, Senator Jay 
Rockefeller, I was proud to recommend Judge Berger, for she is not only 
an outstanding jurist, she is also an exemplary person. A native of 
Berwind, in McDowell County, WV, Judge Berger has devoted her legal 
career to public service in West Virginia.
  As a young attorney, she provided legal services to those who were 
most needy. As a prosecutor, Judge Berger obtained many high-profile 
felony convictions. Judge Berger has served as a circuit judge for the 
Thirteenth Judicial Circuit of West Virginia for 15 years--1\1/2\ 
decades--and she has devoted countless hours of service to her 
community.
  Through her drive and determination, Judge Berger broke barrier after 
barrier. She was the first in her family to attend college. She was the 
first African-American woman to serve as a circuit judge in West 
Virginia. Embodying true mountaineer spirit and pride, Judge Berger's 
contributions to legal service and to education have been substantial. 
Sitting on the bench, she will continue her fine service to her 
community and to the great State of West Virginia.

[[Page S10757]]

  I want to be the first to congratulate Judge Berger, and I thank my 
colleagues for their support of this very fine lady.
  Mr. President, I yield the floor.
  Mr. LEAHY. Mr. President, it has taken nearly a month to obtain 
Republican consent to consider the nomination of Judge Irene Berger to 
the Southern District of West Virginia. Judge Berger is a consensus 
nominee unanimously rated ``well qualified'' by the American Bar 
Association's Standing Committee on the Federal Judiciary, the highest 
rating possible. Her nomination has the support of both of West 
Virginia's highly respected Senators. Senator Byrd, as the senior 
member of the Senate, is the President pro tempore and is the longest 
serving Senator in history. Senator Rockefeller is a senior member and 
the chairman of the Commerce Committee. I thank the Senators from West 
Virginia for their statements in support of the nomination, their work 
on this nomination, and their recommendations of outstanding judicial 
nominations for West Virginia over many years.
  Republican delay in the confirmation of this consensus nominee 
continues a pattern that has been followed all year. Last week, the 
Senate was finally allowed to consider the nomination of Roberto A. 
Lange to the District of South Dakota. I regret that the Republican 
minority allowed 3 weeks to lapse since the nomination was reported 
unanimously by the Judiciary Committee before allowing the Senate to 
consider it. They also required 2 hours of debate on the nomination, 
though they used fewer than 5 minutes to discuss the merits of the 
nominee. In that 5 minutes, the ranking Republican on the Judiciary 
Committee endorsed the nomination. That nomination had the support of 
both Senator Johnson and Senator Thune, a member of the Senate 
Republican leadership. Ultimately, Judge Lange's nomination was 
confirmed 100 to 0, but only after weeks of unnecessary delay.
  The pattern is being repeated today with respect to Judge Berger. 
When confirmed, Judge Berger will be the first African American in the 
history of West Virginia to serve as a Federal judge. For the last 15 
years, Judge Berger has served as a circuit judge in county court. 
Before that, she spent more than a decade as a State and Federal 
prosecutor.
  So I ask, why has the Republican minority delayed consideration of 
this experienced and highly qualified jurist and of this historic 
confirmation for the last several weeks? Will any Republican explain 
why there will remain nine other judicial nominations reported 
favorably by the Judiciary Committee on which Senate Republicans 
continue to refuse to allow the Senate to proceed? Two were reported in 
June and have been stalled for more than 4 months.
  Last week, the Senate also finally confirmed the nomination of Judge 
William Sessions of Vermont to chair the U.S. Sentencing Commission. An 
anonymous, unexplained Republican hold stalled that nomination for more 
than 5 months. The majority leader was forced to file a cloture 
petition in order to end the obstruction. Cloture petitions were 
previously required to overcome Republican obstruction on the 
nominations of David Ogden to serve as the Deputy Attorney General and 
Tom Perez to serve as the Assistant Attorney General heading the Civil 
Rights Division.
  I said last week before the Senate unanimously confirmed Judge Lange 
that these delays are a dark mark on the Senate. They prevent us from 
doing our work. Worse, this obstruction means that nominees must place 
their lives on hold for an undetermined amount of time. The Senate 
should be the conscience of the Nation. These needless and harmful 
delays, particularly in connection to consensus nominees, make the 
Senate look foolish.
  Judge Berger's nomination is one of 13 judicial nominations reported 
favorably by the committee this year to fill circuit and district court 
vacancies on Federal courts around the country. The President has 
worked hard to consult with Republicans and Democrats alike to make 
consensus, well-qualified selections. Unlike his predecessor, he has 
not sought to turn judicial nominations into a partisan matter. Ten of 
these judicial nominations were reported by the Judiciary Committee 
without a single dissenting voice. Yet, due to the pattern of 
Republican delay, this is just the fourth of those nominations allowed 
to be considered by the Senate.
  It is now October 27. By this date in George W. Bush's first year in 
office, the Senate had confirmed a total of 12 lower court judges, 
including 4 circuit court judges. We achieved those results with a 
controversial and confrontational Republican President after a midyear 
change in the Senate to a Democratic majority, in spite of the attacks 
of September 11, despite the anthrax-laced letters sent to the Senate 
that closed our offices, and working virtually around the clock on the 
PATRIOT Act. By comparison, this year the Republican minority has 
allowed action on only three judicial nominations to the Federal 
circuit and district courts, with only one circuit court confirmation 
all year. Judge Berger's confirmation will raise the total judicial 
confirmations to only one-third of that achieved by this date in 2001.
  I made sure that President Bush's judicial nominations were treated 
better than President Clinton's had been by the Republican Senate 
majority. By contrast, Senate Republicans are making sure that 
President Obama's nominees are treated worse even worse than they 
treated President Clinton's nominees. By this junction in President 
Clinton's first year, the Senate had confirmed twice as many judicial 
nominees as we have this year.
  This is all despite the fact that President Obama sent nominees to 
the Senate 2 months earlier than did President Bush. This is despite 
bipartisan support from Republican Senators like Senator Lugar, Senator 
Thune, Senator Martinez, Senator Alexander, Senator Chambliss, and 
Senator Isakson for President Obama's judicial nominees to judicial 
vacancies affecting their home States.
  When I served as chairman of the Senate Judiciary Committee during 
President Bush's first term, I did my best to stop the downward spiral 
that had affected judicial confirmations. Throughout my chairmanship, I 
made sure to treat President Bush's judicial nominees better than the 
Republicans had treated President Clinton's nominees. During the 17 
months I chaired the Judiciary Committee in President Bush's first 
term, we confirmed 100 of his judicial nominees. At the end of his 
Presidency, although Republicans had chaired the Judiciary Committee 
for more than half his tenure, more of his judicial nominees were 
confirmed when I was the chairman than in the more than 4 years when 
Republicans were in charge.
  Senate Republicans began this year threatening to filibuster every 
judicial nominee of the new President. They have followed through by 
dragging out, delaying, obstructing, and stalling the process. The 
result is that 10 months into President's Obama's first term, the 
Senate after today will have confirmed only four of his nominations for 
circuit and district courts while judicial vacancies skyrocket around 
the country. After reducing vacancies as low as 43 last year, even 
during the last year of President Bush's second term and a Presidential 
election year, vacancies have already more than doubled to 95 vacancies 
around the country in our Federal circuit and district courts. There 
are another 26 future vacancies already announced. These vacancies are 
at near record levels. We can do better. The American people deserve 
better. Justice should not be delayed or denied to any American because 
of overburdened courts.
  When will Senate Republicans allow the Senate to consider the 
nominations of Judge Hamilton to the Seventh Circuit, Judge Davis to 
the Fourth Circuit, Judge Martin to the Eleventh Circuit, Judge 
Greenaway to the Third Circuit, Judge Honeywell to the Middle District 
of Florida, Judge Nguyen to the Central District of California, Judge 
Chen to the Northern District of California, Ms. Gee to the Central 
District of California, and Judge Seeborg to the Northern District of 
California?
  President Obama made his first judicial nomination, that of Judge 
David Hamilton to the Seventh Circuit, in March, but it has been 
stalled on the Executive Calendar since early June, despite the support 
of the senior Republican in the Senate, Senator Lugar. The nomination 
of Judge Andre Davis to the Fourth Circuit was reported by

[[Page S10758]]

the Judiciary Committee on June 4 by a vote of 16 to 3, but has yet to 
be considered by the Senate. The nomination of Judge Beverly Baldwin 
Martin to the Eleventh Circuit has the support of both of Georgia's 
Senators, both Republicans, and was reported unanimously from the 
Committee by voice vote on September 10 but has yet to be considered or 
scheduled for consideration by the Senate. The nomination of Judge 
Joseph Greenaway to the Third Circuit has the support of both New 
Jersey Senators and was reported unanimously from the Committee by 
voice vote on October 1 but has yet to be considered or scheduled for 
consideration by the Senate. All of these nominees are well-respected 
judges. All will be confirmed, I believe, if only Republicans would 
consent to their consideration by the Senate. Instead, the President's 
good efforts are being snubbed and these nominees stalled for no good 
purpose.
  The Senate's failure to adhere to its tradition of regularly 
considering qualified, noncontroversial nominees has not been limited 
to filling vacancies on the Federal bench. The Republican minority has 
irresponsibly stalled nominations to critical posts in the Department 
of Justice, depriving the President, the Attorney General, and the 
country of the leaders needed to head important divisions at the 
Justice Department. These are important leaders of our Federal law 
enforcement efforts. Presidents of both parties, especially newly 
elected ones, are normally accorded greater deference to put in place 
appointees for their administrations.
  Yet, 10 months in to President Obama's first term, five nominations 
to be Assistant Attorneys General remain stalled on the Senate's 
Executive Calendar due to Republican opposition and obstruction. These 
are the President's nominees to run 5 of the 11 divisions at the 
Justice Department--nearly half. By comparison, at this point in the 
Bush administration the Senate had confirmed nine Assistant Attorneys 
General and only one nomination was pending on the Senate Executive 
Calendar. The difference is that the Republican minority is refusing to 
consider these nominations.
  The President nominated Dawn Johnsen to be the Assistant Attorney 
General in charge of the Office of Legal Counsel at the Justice 
Department on February 11. Her nomination has been pending on the 
Senate Executive Calendar since March 19. That is the longest pending 
nomination on the calendar by over 2 months. We did not treat President 
Bush's first nominee to head the Office of Legal Counsel the same way. 
We confirmed Jay Bybee to that post only 49 days after he was nominated 
by President Bush and only 5 days after his nomination was reported by 
the committee.
  Mary Smith's nomination to be the Assistant Attorney General in 
charge of the Tax Division has been pending on the Senate's Executive 
Calendar since June 11--more than 4 months. We confirmed President 
Bush's first nomination to that position, Eileen O'Connor, only 57 days 
after her nomination was made and 1 day after her nomination was 
reported by the committee. Her replacement, Nathan Hochman, was 
confirmed without delay, just 34 days after his nomination.
  President Obama's nomination of Ignacia Moreno to be the Assistant 
Attorney General in charge of the Energy and Natural Resources Division 
has been on the Senate Executive Calendar for over a month, even though 
it was reported by the Judiciary Committee by unanimous consent. By 
comparison, a Democratic majority in the Senate confirmed President 
Bush's controversial nomination of Thomas Sansonetti to the position 
only 1 day after it was reported by the Judiciary Committee.
  Chris Schroeder's nomination to be the Assistant Attorney General in 
charge of the Office of Legal Policy has been pending on the Senate 
Executive Calendar since July 28. It was reported by voice vote without 
a single dissenting voice. President Bush's first nominee to head that 
division, Viet Dinh, was confirmed 96 to 1 only 1 month after he was 
nominated and only a week after he his nomination was reported by the 
committee. The three nominees to that office that succeeded Mr. Dinh--
Daniel Bryant, Rachel Brand, and Elisabeth Cook--were each confirmed by 
voice vote in a shorter time than Professor Schroeder's nomination has 
been pending. Ms. Cook was confirmed 13 days after her nomination was 
reported by the committee even though it was the final year of the Bush 
Presidency. By contrast, the majority leader may have to file another 
cloture position in order to overcome Republican obstruction and obtain 
Senate consideration of Professor Schroeder's nomination.
  Instead of withholding consents and filibustering President Obama's 
nominees, the other side of the aisle should join us in treating them 
fairly. We should not have to fight for months to schedule 
consideration of the President's judicial nominations and nomination 
for critical posts in the executive branch.
  I look forward to congratulating Judge Berger and her family on her 
historic confirmation, and I thank the West Virginia Senators for their 
strong support of the nominee through another extended and unnecessary 
delay.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Irene Cornelia Berger, of West Virginia, 
to be United States District Judge for the Southern District of West 
Virginia?
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. DeMint).
  Further, if present and voting, the Senator from South Carolina (Mr. 
DeMint) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Leahy) and 
the Senator from New Jersey (Mr. Menendez) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 97, nays 0, as follows:

                      [Rollcall Vote No. 328 Ex.]

                                YEAS--97

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     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
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     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--3

     DeMint
     Leahy
     Menendez
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table.
  The President will be immediately notified of the Senate's action.

                          ____________________