[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.
____________________