[Congressional Record Volume 156, Number 39 (Wednesday, March 17, 2010)]
[Senate]
[Pages S1649-S1652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF O. ROGERIEE THOMPSON TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE FIRST CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will go to executive session. The clerk will report the 
nomination.
  The legislative clerk read the nomination of O. Rogeriee Thompson, of 
Rhode Island, to be United States Circuit Judge for the First Circuit.
  Mr. LEAHY. Mr. President, I congratulate Justice Thompson on what 
should be her confirmation by the Senate today as a judge on the United 
States Court of Appeals for the First Circuit. President Obama has made 
another outstanding judicial nomination. The Senators from Rhode Island 
have worked tirelessly to bring this matter to conclusion with a Senate 
vote since her nomination was reported by the Senate Judiciary 
Committee 2 months ago.
  It has been 2 weeks since the Senate has acted on any of the 18 
judicial nominations approved by the Senate Judiciary Committee that 
are being stalled by Republican obstruction on the Senate Executive 
Calendar. It has been almost 4 months since I began publicly urging the 
Senate Republican leadership to abandon its strategy of obstruction and 
delay of the President's judicial nominees. Regrettably, their 
practices continue. Even though Justice Thompson is a well-respected 
judge who has more than two decades of experience on her State's 
courts, and whose nomination was reported by the Senate Judiciary 
Committee without a single dissenting vote, her nomination has been 
stuck on the Senate Executive Calendar for nearly 2 months. Justice 
Thompson's nomination is not the only one being stalled despite having 
been reported without opposition by the Senate Judiciary Committee. 
There are a dozen such nominations ready for consideration and 
confirmation that have been stalled without reason or explanation. They 
could and should all be considered and confirmed without further delay.
  In addition there are another half dozen judicial nominees awaiting 
final consideration by the Senate that were reported with just a 
single, or a few, negative votes. Those should be debated and voted 
upon without more delay. If Republicans would enter into time 
agreements, they would be considered. We should not have to go through 
another filibuster and cloture vote like that on Judge Barbara Keenan 
of Virginia, whose nomination was stalled for 4 months and then 
approved 99 to 0. There was no reason for that delay. Yet it amounted 
to a Republican filibuster until it was finally ended 2 weeks ago by 
the majority leader and that Senate vote.
  Just yesterday, more than a dozen Senators spoke about the delays and 
obstruction of the President's nominees. Many Senators spoke about the 
recent Republican filibuster of Judge Barbara Keenan. The Senator from 
Pennsylvania spoke about the nominee stalled since December to fill a 
Pennsylvania vacancy on the Third Circuit. The Senators from North 
Carolina and Maryland noted that two well-qualified nominees to 
vacancies on the Fourth Circuit remain stalled. And the Senator from 
Rhode Island, a hardworking member of the Judiciary Committee, spoke of 
the nomination on which we are finally being allowed to vote today, 
that of Justice Rogeriee Thompson.
  When the Senate confirms Justice Thompson, we will be confirming the 
first African American to serve on the First Circuit, and only the 
second woman. She is a trailblazer and an extraordinary woman. She will 
be an outstanding Federal judge.
  The Judiciary Committee has favorably reported 35 of President 
Obama's Federal circuit and district court nominees to the Senate for 
final consideration and confirmation. Only 17 of these have been 
confirmed. Justice Thompson's nomination will be the 18th. There are 
another five judicial nominations set to be reported by the Judiciary 
Committee this week, bringing the total awaiting final action by the 
Senate to 22.
  Despite skyrocketing vacancies--now totaling over 100, more than 30 
of which are ``judicial emergencies''--we are far behind the pace for 
considering nominations set by the Democratic majority during President 
Bush's first 2 years in office. By this date during President Bush's 
first term, the Senate had confirmed 41 Federal circuit and district 
court nominations and there was only a single judicial nomination 
pending on the Senate's Executive Calendar. Only a single nomination 
was

[[Page S1650]]

pending. In stark contrast, to date the Senate has confirmed just 17 of 
President Obama's district and circuit court nominees, with an 
embarrassing backlog of 18 judicial nominations on the calendar 
awaiting Senate action. We are currently on pace to confirm fewer than 
30 Federal circuit and district court nominees during this Congress, 
which would easily be the lowest in memory. We have to do far more to 
address this growing crisis of unfilled judicial vacancies.
  The Republican strategy to stall, obstruct, and delay the Senate from 
considering President Obama's nominations is working, at great cost to 
the American people. Their failure to do their constitutional duty of 
considering the President's nominations is encumbering judges across 
the country with overloaded dockets and preventing ordinary Americans 
from seeking justice in our overburdened Federal courts. This is wrong. 
We owe it to the American people to do better.
  The refusal by Republicans to make progress considering judicial 
nominations is hard to understand given the work President Obama has 
done to reach across the aisle to work with Republican Senators in 
making judicial nominations. Unlike the often partisan and divisive 
picks of his predecessor, President Obama deserves praise for working 
closely with home State Senators, whether Democratic or Republican, to 
identify and select well-qualified nominees to fill vacancies on the 
Federal bench. Yet Senate Republicans delay and obstruct even nominees 
chosen after consultation with Republican home State Senators.
  Senate Republicans unsuccessfully filibustered the nomination of 
Judge David Hamilton of Indiana to the Seventh Circuit, despite support 
for his nomination from the senior Republican in the Senate, Dick Lugar 
of Indiana. Republicans delayed for months Senate consideration of 
Judge Beverly Martin of Georgia to the Eleventh Circuit despite the 
endorsement of both her Republican home State Senators. The nomination 
of Jane Stranch of Tennessee to the Sixth Circuit, endorsed by home 
State Republican Senator Lamar Alexander and reported by the committee 
with bipartisan support, has remained stalled on the calendar since 
last year. The nominations of Judge James A. Wynn and Albert Diaz of 
North Carolina to the Fourth Circuit both have Senator Burr's strong 
support and yet have remained on the calendar for more than 6 weeks. 
The list goes on.
  President Obama has worked closely with home State Republicans 
Senators, but Senate Republicans have still chosen to treat his 
nominees badly. Indeed, the demand for consultation with home State 
Senators was the purported basis for the threat from Senate Republicans 
to filibuster President Obama's judicial nominations before he had made 
a single one. They wrote in their March 2, 2009, letter to the 
President: ``[I]f we are not consulted on, and approve of, a nominee 
from our states, the Republican Conference will be unable to support 
moving forward on that nominee.'' Yet despite the fact that they were 
consulted and that Senator Lugar did approve, Senate Republicans 
insisted on filibustering Judge Hamilton's nomination. Despite 
consultation, there are still a dozen and one-half judicial nominations 
stalled on the Executive Calendar.
  After Republican Senators pocket-filibustered more than 60 of 
President Clinton's judicial nominations, denying them even hearings 
and votes in committee and creating a vacancy crisis on the Federal 
bench, Democrats did not do the same to President Bush's nominees. We 
treated them much more fairly. We worked hard through 2001, even after 
9/11 and the anthrax attacks, holding hearings even during Senate 
recess periods, in order to swiftly consider President Bush's nominees. 
That is why by this date in 2002 the Senate had confirmed 41 judicial 
nominees. By contrast the confirmation of Justice Thompson will be only 
the 18th Federal circuit or district court judge nominated by President 
Obama to be confirmed. At this date in March 2002 there was a single 
judicial nominee awaiting Senate consideration. By contrast, today 
there are 18 stacked up because Senate Republicans refuse to consent to 
their consideration.
  Yet when Democrats refused to rubberstamp a handful of the most 
extreme, ideological, and divisive of President Bush's nominees--not 
the 60 nominations of President Clinton's that Senate Republicans 
pocket-filibustered, or the 18 we have stalled on the calendar right 
now--Republican Senators changed their tune, disavowed any 
responsibility for their obstruction of President Clinton's nominees, 
and contended that filibusters of judicial nominations were 
``unconstitutional'' and ``offensive.'' The Republican leadership of 
the Senate Judiciary Committee broke virtually every precedent and rule 
we had in order to force nominees through the committee, and the 
Republican leadership of the Senate sought to activate the ``nuclear 
option'' to break Senate rules and precedent in order to ram through 
each and every nominee.
  Unfortunately, those same Republican Senators that once threatened to 
blow up the Senate unless every nominee received an up-or-down vote are 
now engaged in another attempt to abuse the rules of the Senate and 
undermine the democratic process. Republican Senators who just a few 
years ago insisted that ``elections have consequences'' have now made 
the use of filibusters, holds, and excessive procedural delays the new 
normal in the Senate in order to thwart our ability to make progress 
addressing issues that affect all Americans. Those who just a short 
time ago said that a majority vote is all that should be needed to 
confirm a nomination, and that filibusters of nominations are 
unconstitutional, have reversed themselves and now employ every 
delaying tactic they can, imposing on the Senate a requirement to find 
60 Senators to overcome a filibuster on issue after issue.
  A bipartisan group of Senators joined together in 2005 to end that 
last attempt by Republican leadership to abuse the rules of the Senate 
by joining in a bipartisan memorandum of understanding to head off the 
``nuclear option'' that the Republican Senate leadership was intent on 
activating. Those same Republican Senators who agreed in that 
memorandum of understanding that nominees should only be filibustered 
under ``extraordinary circumstances,'' have abandoned all that they 
said they stood for by engaging in an effort to stall or prevent an up-
or-down vote on nomination after nomination.
  We saw that with their attempt to filibuster the nomination of Judge 
Hamilton. Just 2 weeks ago a Republican filibuster of Justice Barbara 
Keenan of Virginia to be a Fourth Circuit judge resulted from Senate 
Republicans refusing to agree to debate and vote on that nomination. 
The majority leader was required to proceed through a time-consuming 
procedure to end the obstruction. The votes to end debate and on her 
confirmation were both 99 to 0. That nomination had been reported in 
October. So after more than 4 months of stalling, there was no 
justification, explanation, or basis for the delay. That is wrong. That 
was the 17th filibuster of President Obama's nominations. And that does 
not include the many other nominees who were delayed or who are being 
denied up-or-down votes by Senate Republicans refusing to agree to time 
agreements to consider even noncontroversial nominees.
  So why are Republicans so insistent on reversing themselves and 
applying new standards to halt our progress filling vacancies on the 
Federal courts? Why have they insisted on departing so radically from 
the standards set by the Democratic majority during the first two years 
of the Bush Administration when we confirmed 100 of President Bush's 
judicial nominations in 17 months? Why have they rejected President 
Obama's efforts to reach across the aisle and nominate well-qualified 
mainstream nominees? Why are they intent on constructing procedural 
hurdles to delay and deny up-or-down votes to nominee after nominee?
  The American people should see this for what it is: More of the 
partisan, narrow, ideological tactics that Senate Republicans have been 
engaging in for decades as they try to pack the courts with 
ultraconservative judges. What is at stake for the American people are 
their rights, their access to the courts, and their ability to seek 
redress for wrongdoing.

[[Page S1651]]

  For all the talk we heard about ``judicial modesty'' and ``judicial 
restraint'' from the nominees of President Bush at their confirmation 
hearings, we have seen Federal courts--most notably the Supreme Court--
these last 5 years that has been anything but modest and restrained. 
Conservative activist judges are time and time again substituting their 
personal beliefs to the law and the judgment of elected officials.
  That is what we saw in the recent decision by a narrow five-justice 
majority of the Supreme Court in Citizens United v. Federal Election 
Commission, a decision that gutted bipartisan laws enacted to protect 
the ability of individual Americans to participate in elections and not 
have their voices drowned out by corporations. Regrettably, that 
decision is only the latest example of the willingness of a narrow 
majority of the Supreme Court to render decisions from the bench to 
suit their own agenda.
  The Citizens United decision reinforces the profound concern I have 
had about the real-world consequences of recent court decisions for 
hardworking Americans. On issues like equal pay for equal work; the 
power of Congress under the 14th and 15th amendments to pass civil 
rights laws like the Voting Rights Act; and issues thought to be long 
settled like the meaning of Brown v. Board of Education, the current 
conservative majority on the Supreme Court seems determined to accrue 
to itself the powers given by the Constitution to Congress and to 
rewrite long-established precedents. The lower courts must follow suit. 
Make no mistake, this is the product of years of work by Republicans 
catering to the far right to remake the courts and reshape the law from 
the bench.
  Republican Senators who demanded up-or-down votes for even the most 
extreme and ideological nominees of a Republican President now balk at 
the consideration of well-qualified, mainstream nominees of a 
Democratic President. The many years Democratic Senators worked to be 
fairer to President Bush's nominees than the Republican majority had 
been to President Clinton's nominees have been cast aside and forgotten 
by the Republican minority.
  Justice Thompson's nomination is noncontroversial and should easily 
be confirmed. I urge the Senate also to take responsible action to 
consider the other 17 judicial nominations still awaiting a vote by the 
Senate. The Senate can more than double the total number of judicial 
nominations it has confirmed by considering not only Justice Thompson's 
nomination but the other judicial nominees on the calendar. We should 
do that now, without more delay, without additional obstruction, to put 
us back on track. Senators should work together to do our jobs for the 
American people.
  Mr. DORGAN. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that time be charged equally.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REED. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley.) Without objection, it is so 
ordered.
  Mr. REED. Mr. President, shortly, we will have the honor and 
privilege, myself and Senator Whitehouse, to join in supporting and 
confirming the nomination of Justice Rogeriee Thompson, who will be 
confirmed today to the First Circuit Court of Appeals.
  Justice Thompson is an eminent member of our Rhode Island courts. She 
has been an Associate Justice of the Rhode Island Superior Court since 
1997. She is a path breaker in many respects in terms of her talent, 
but also because she is the first woman of African-American descent to 
serve on the Rhode Island Superior Court. She will be the first African 
American to serve on the First Circuit Court of Appeals and only the 
second woman.
  She has achieved these remarkable results because of her intellect, 
her character, her integrity, and her deep commitment to fairness and 
to justice. She is a remarkable woman. We are pleased and delighted 
that her nomination has been forwarded to us by the President. He has 
made a wise choice. Today, we will have the opportunity to consider the 
nomination and confirm her. She will do a remarkable job on the First 
Circuit Court of Appeals.
  Originally, Justice Thompson was born in South Carolina, but she came 
to Rhode Island to attend Brown University. She earned her J.D. from 
the Boston University School of Law and began her career as a staff 
attorney at Rhode Island Legal Services.
  So her progression to the First Circuit is one that has carried her a 
long way. I think it has included, very importantly, a strong 
commitment not just to the most fortunate in our country, but also to 
those who desperately need help and assistance.
  She will bring that sense of fairness and decency to the First 
Circuit Court of Appeals. I urge all of my colleagues to support this 
worthy woman and her nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, the Senate is considering the 
nomination of O. Rogeriee Thompson to the United States Court of 
Appeals for the First Circuit. I join my distinguished senior 
colleague, Senator Jack Reed, in applauding President Obama's selection 
of this very talented nominee. Judge Thompson's nomination has been an 
uncontroversial one and for good reason: She is a dedicated public 
servant, a highly experienced and respected judge, and a credit to our 
home State of Rhode Island. I congratulate Judge Thompson on coming to 
this point in the process. I look forward to an uneventful confirmation 
vote in the next few moments.
  I express to my colleagues my thorough confidence that she will have 
a distinguished career as a U.S. circuit court of appeals judge.
  I also thank some of my colleagues. I am grateful to majority leader 
Harry Reid, to our chairman, Patrick Leahy, of the Judiciary Committee, 
and to Senators on the other side of the aisle, in particular Judiciary 
Committee Ranking Member Sessions, for clearing the path for us to vote 
on Judge Thompson's nomination today. I also am grateful that my senior 
Senator, Jack Reed, gave me the opportunity to assist him in 
identifying the best possible nominee to recommend to President Obama 
to serve on the first circuit. As my colleagues know, it has been a 
great honor to serve with Senator Reed since coming to the Senate. This 
experience with him was another great privilege for which I am deeply 
grateful.
  After the Senate's action today, after a lifetime of achievement, 
Judge Thompson will make history as the first African American and only 
the second woman to serve on the U.S. Court of Appeals for the First 
Circuit. This will not be the first barrier broken by Judge Thompson, 
as she was the first African-American woman on each of the Rhode Island 
courts on which she has served. These were great moments in the history 
of our State. Her arrival will be a wonderful addition in the history 
of the first circuit. Judge Thompson has given our State 21 years of 
distinguished judicial service, first as an associate judge on the 
Rhode Island district court and subsequently as an associate justice on 
the Rhode Island superior court.
  Judge Thompson has long scrupulously adhered to the proper role of a 
judge, respecting the role of the legislature as the voice of the 
people, deciding cases based on the law and the facts, not prejudging 
any case but listening to every party before her, respecting precedent 
and limiting herself to the issues properly before the court. Her 
courtroom deservedly has come to be known as a place in which every 
party can expect a fair hearing. I know she will earn the same 
reputation for fairness and excellence as a judge on the first circuit.
  I should add that Judge Thompson has also made great contributions to 
our home State of Rhode Island outside of the courtroom. She has 
chaired or been a member of important court committees that have 
improved the quality of justice in our State. She has given back to her 
alma mater, Brown University, by serving as a trustee of that great 
university. She also has provided mentoring to innumerable students, 
given her time to countless law

[[Page S1652]]

school programs, and served on the boards of valuable and important 
nonprofit groups such as the Rhode Island Children's Crusade for Higher 
Education, a board on which I was privileged to serve with Judge 
Thompson. Her willingness to give back to our Rhode Island community is 
characteristic of her entire family. Judge Thompson's husband, Bill 
Clifton, is a judge on the Rhode Island district court. Her brother-in-
law, Bill's brother, Edward Clifton, is a judge on the Rhode Island 
superior court. It is a very judicial family.
  I had the occasion to appear before Judge Clifton. He was the first 
judge when we began our Rhode Island drug court, when I was attorney 
general. I have had firsthand experience of his qualities as well. We 
in Rhode Island are very fortunate to be blessed by the service and 
excellence of this family. I am sure this is a very proud day for them 
all. I extend my best wishes and my congratulations.
  I anticipate we will have a strong vote in favor of Judge Thompson. 
She passed without incident or opposition through the review of the 
Judiciary Committee. There were no questions raised about her at her 
hearing. The voice vote in her favor was unanimous. The track record to 
date is an indication of a likely resounding confirmation. I might add, 
if that happens, that is yet another evidence of how talented she is 
and how well she deserves this seat on the Court of Appeals for the 
First Circuit. It is an important circuit for our State. It is a very 
distinguished court. It has had very distinguished Rhode Islanders sit 
on it in the past. A friend of Senator Jack Reed's and mine, the 
honorable Bruce Selya, has served on that court with immense 
distinction for many years. So there is an important Rhode Island 
tradition on the first circuit.
  I can assure all of my colleagues in the Senate that as a justice of 
this court, O. Rogeriee Thompson will discharge all of her duties with 
the greatest of distinction.
  I yield the floor, suggest the absence of a quorum, and ask unanimous 
consent that the time be divided between the minority and majority.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. 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. WHITEHOUSE. Mr. President, I ask for the yeas and nays on the 
nomination of Judge Thompson.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of O. Rogeriee Thompson, of Rhode Island, to be United States Circuit 
Judge for the First 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) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Utah (Mr. Bennett).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                       [Rollcall Vote No. 56 Ex.]

                                YEAS--98

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Bond
     Boxer
     Brown (MA)
     Brown (OH)
     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
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     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--2

     Bennett
     Byrd
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be notified of the Senate's 
action.
  Mrs. MURRAY. Mr. President, I move to reconsider the vote.
  Mr. LEAHY. Mr. President, I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________