[Congressional Record Volume 156, Number 93 (Monday, June 21, 2010)]
[Senate]
[Pages S5186-S5193]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF MARK A. GOLDSMITH TO BE UNITED STATES DISTRICT JUDGE FOR 
                    THE EASTERN DISTRICT OF MICHIGAN

                                 ______
                                 

NOMINATION OF MARC T. TREADWELL TO BE UNITED STATES DISTRICT JUDGE FOR 
                     THE MIDDLE DISTRICT OF GEORGIA

                                 ______
                                 

  NOMINATION OF JOSEPHINE STATON TUCKER TO BE UNITED STATES DISTRICT 
              JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations, 
which the clerk will report.
  The assistant legislative clerk read the nominations of Mark A. 
Goldsmith, of Michigan, to be United States District Judge for the 
Eastern District of Michigan; Marc T. Treadwell, of Georgia, to be 
United States District Judge for the Middle District of Georgia; 
Josephine Staton Tucker, of California, to be United States District 
Judge for the Central District of California.
  The PRESIDING OFFICER. Under the previous order, the time until 6 
p.m. will be for debate on the nominations, with the time equally 
divided and controlled by the Senator from Vermont, Mr. Leahy, and the 
Senator from Alabama, Mr. Sessions.
  The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I rise briefly, and with great pride, to 
commend to my colleagues the confirmation of Marc Treadwell from the 
State of Georgia to be a U.S. district court judge of the Middle 
District of Georgia.
  Marc is all Georgian. He was born in Blackshear, and he traveled 
around as the son of an Army officer. But he came back and attended 
Valdosta State where he earned his bachelor's degree, and then he 
graduated from Mercer University's Walter F. George Law School in 
Macon.
  After graduating, he came to Atlanta and, ironically, practiced law 
at the firm of Kilpatrick & Cody, which represented my company for 
years in Atlanta. It is one of the most distinguished law firms in the 
State of Georgia.
  Marc has been inducted into the American College of Trial Lawyers, 
and Martindale-Hubbell gave him an ``AV,'' its highest designation.
  Marc now teaches at his alma mater, Mercer, and he has written more 
than 50 publications for Law Reviews and other publications. He is 
recognized as a leading authority and expert in Georgia evidence law.
  Marc is married to his beautiful wife Wimberly. They have two sons, 
Thomas and John. In addition to juggling his law practice, teaching, 
and family duties, Marc finds time to be an active member of the 
Vineville United Methodist Church in Macon.
  It is my privilege and honor to thank Chairman Leahy and Ranking 
Member Sessions for their diligence on this confirmation in the 
committee.
  I commend Marc Treadwell with my highest recommendation for 
confirmation to the court of the United States of America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Ms. STABENOW. Like my friend from Georgia, I rise today also with 
great pride to strongly support the nomination of Judge Mark Goldsmith, 
to be a judge for the U.S. District Court for the Eastern District of 
Michigan.
  I have known Judge Goldsmith for a long time. He is a friend and 
someone for whom I have the greatest admiration both as a person and as 
a judge. He is extremely intelligent. He is highly respected in 
Michigan as a judge. Since joining the Oakland County Circuit Court in 
2004, he has proven himself to be someone who is highly respected by 
all sides. He is known for his integrity and fairness. That is 
certainly what we look for as we look to these important confirmations 
on the Federal bench.
  After graduating from the University of Michigan in 1974, he went on 
to receive his law degree from Harvard University in 1977. Before 
joining the State court, he was a partner at Honigman Miller in 
Detroit. He has also served as an adjunct professor of the law at Wayne 
State University's law school.
  Judge Goldsmith is well known in the community where he formerly 
served on many boards and is someone who is known for giving back to 
the community, working with the poor, and working with those who need 
his help in the Detroit area. He has been recognized for his pro bono 
involvement and his community work, most notably at B'nai B'rith 
Antidefamation League and Forgotten Harvest, an organization that 
collects surplus perishable foods from grocery stores, restaurants, and 
caterers and provides them to emergency food providers in the metro 
Detroit area.
  The American Bar Association has given him the rating of 
``unanimously well qualified,'' which is their highest rating for 
judicial nominees.
  He has been a judge in Michigan since 2002 when he was appointed as a 
part-time magistrate hearing traffic violations and civil infractions. 
In 2004, he was appointed to the Oakland County Circuit Court, which 
has jurisdiction over felonies and major civil claims cases. He was 
elected to that position in November of 2004 and reelected in 2006.
  In the cases that have come before him, he has always been known to 
be fair and impartial, willing to listen to both sides and make careful 
rulings based on the law. It has been my great honor and privilege to 
know him and to join with Senator Levin in making a recommendation to 
the President regarding his possible nomination. We were very pleased 
when President Obama chose to nominate him to the Federal bench.
  I urge my colleagues to support him unanimously, as the American Bar 
Association has done--again, giving him their highest rating for 
judicial nominees of ``unanimously well qualified.'' I hope we will do 
this soon today.
  I yield the floor.
  Mr. President, I ask that the time be equally divided between both 
sides, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CHAMBLISS. 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. CHAMBLISS. Mr. President, I rise this afternoon to say a few 
words about an excellent lawyer from Macon, GA, Marc Treadwell, who has 
been nominated to serve as a U.S. District Court Judge for the Middle 
District of Georgia, the district I was privileged to practice in for 
26 years.
  He is a native of Blackshear, GA, but as an ``Army brat,'' he grew up 
near various bases around the United States and abroad.
  He is a graduate of Valdosta State University, as well as the Walter 
F. George School of Law at Mercer University in Macon.
  At Mercer, Marc served on the law review and was a member of the 
school's prestigious Brainerd Currie Honor Society.
  After graduation, Marc went to Atlanta to begin his practice of law 
and returned to Macon in 1985 and has practiced in Macon ever since. He 
currently is a partner with the Macon firm of Adams, Jordan & 
Treadwell.
  Marc has been inducted into the American College of Trial Lawyers and 
Martindale-Hubbell and his colleagues have given him the highest rating 
available to a lawyer in the country with an AV rating.
  He now teaches at his alma mater, Mercer, and has written more than 
50 publications for law reviews and other publications. Marc is also 
recognized as a leading authority on the evidence law in our State of 
Georgia.

[[Page S5187]]

  Marc and his wife Wimberly have two sons, Thomas and John. In 
addition to juggling his law practice, teaching and family duties, Marc 
is an active member of the Vineville United Methodist Church in Macon.
  I am pleased to commend Marc Treadwell to my colleagues, and I 
believe he will serve Georgians and Americans very well as a Federal 
judge and will be a fine addition to the bench.
  Marc gets the highest remarks from his colleagues with whom I have 
talked over the last several months. I am extremely pleased to be here 
today to recommend to all of my colleagues the confirmation of Marc 
Treadwell to be a U.S. district judge for the Middle District of 
Georgia.
  Mrs. FEINSTEIN. Mr. President, I rise to express my strong support 
for the nomination of California Superior Court Judge Josephine Staton 
Tucker to sit on the U.S. District Court for the Central District of 
California.
  Judge Tucker brings a wealth of relevant experience as a lawyer and a 
judge to her candidacy for the Federal bench.
  For the last 8 years, she has been a trial judge on the Orange County 
Superior Court. She has managed a judicial calendar of up to 500 
pending cases at a time. She has presided over trials on topics as 
diverse as commercial contract disputes, negligence and discrimination 
actions, felony criminal cases, and family law matters. And she has 
served for 2 years on the Appellate Division of the court by special 
appointment from the chief justice of California, giving her important 
experience with appeals as well as trials.
  Additionally, Judge Tucker brings 15 years of litigation experience 
as an associate and then a partner at the law firm of Morrison Foerster 
LLP.
  Her work in private practice included representation of both 
plaintiffs and defendants in all aspects of employment law, including 
individual and class action litigation regarding employment 
discrimination, wrongful discharge, trade secrets and unfair 
competition, privacy, and wage and hour issues. She represented clients 
before State courts, Federal courts, and administrative agencies, and 
she also provided training to employers regarding compliance with 
federal and state employment laws.
  From 1996 to 2002, Tucker was the cochair of Morrison & Foerster's 
50-lawyer employment law practice. In 2001, the Orange County Trial 
Lawyers Association recognized her work by naming her their Employment 
Lawyer of the Year.
  Judge Tucker has also written prolifically. Her published work 
includes: The California Employers Guide to Employee Handbooks and 
Personnel Policy Manuals, a widely used reference book in California; 
three articles and over 50 case critiques for the California Employment 
Law Reporter, and 60 discussions of the law confronting employers and 
employees in the Los Angeles Times Sunday Edition.
  Finally, she has been active in community work, providing volunteer 
services to the San Francisco AIDS Foundation, the Orange Coast 
Interfaith Shelter, the Make-A-Wish Foundation, and the Intercommunity 
Child Guidance Center.
  Judge Tucker is a summa cum laude graduate of William Jewell College, 
a graduate of Harvard Law School, and a former law clerk to Judge John 
Gibson on the U.S. Court of Appeals for the Eighth Circuit. In sum, she 
is a highly qualified candidate for the Federal Court.
  Judge Tucker is also well respected in the Orange County legal 
community where she works. I have long used a committee process 
involving local lawyers to identify the most highly qualified 
candidates for the Federal courts in California. Judge Tucker was 
recommended to me by my current committee after diligent research into 
the quality of her work and her reputation among local lawyers. I 
believe she will be a wonderful addition to the U.S. district court in 
Orange County.
  I thank Senator Boxer for her support of Judge Tucker, and I urge my 
colleagues to vote in favor of confirmation.
  I want to say briefly that while I will be very glad to see Judge 
Tucker confirmed today, there is much more work to be done in 
confirming the President's nominees. Let me give one example that is 
important to me.
  The President first nominated Magistrate Judge Edward Chen to serve 
on the Federal District Court for the Northern District of California 
over 300 days ago. He has been voted out of committee twice and has 
been pending on the floor most recently for 137 days without a vote.
  Like Judge Tucker, Judge Chen came out of my committee process. He 
has excellent credentials, including 9 years as a magistrate judge, and 
has strong, bipartisan support in the community he has been nominated 
to serve. I understand that certain members of the minority have 
concerns because Chen worked for the ACLU before becoming a magistrate 
judge and because of two lines that have been excerpted from his 
speeches and caricatured in the Washington Times. Chen has a long 
record as an adjudicator, however, and it is available for all to 
review.
  He has spent 9 years as a magistrate judge and written over 200 
published opinions. There has not been a single objection in committee 
or on the floor to even one of his decisions.
  In 2008, an impartial Federal Magistrate Judge Merit Selection Review 
Panel reviewed his full record. The Panel unanimously recommended him 
for reappointment. Federal prosecutors they interviewed were 
``uniformly positive'' about Chen and called his rulings ``balanced'' 
and ``well reasoned.'' Similarly, the local civil bar called him ``well 
prepared,'' ``very intelligent,'' and ``decisive.''
  His reputation is stellar among the district judges he works with--
whether they are Republican or Democratic appointees. District Judge 
Lowell Jensen who served as the No. 2 official in the Reagan Justice 
Department said Chen's decisions ``reflect not only good judgment, but 
a complete commitment to the principles of fair trial and the 
application of the rule of law.''
  Two bipartisan selection committees have recommended Chen for the 
district court--one in the Bush administration and the committee I have 
established to review candidates for the current Administration.
  The American Bar Association has also unanimously rated him well 
qualified.
  There is a long track record that shows that Chen understands the 
difference between his work as a lawyer almost a decade ago and the 
work of a judge, which he has been doing for the last nine years with 
great success.
  It is long past time for the minority to agree to a time agreement 
and for the full Senate to have an up-or-down vote on Judge Chen's 
nomination.
  I will be very pleased to see Judge Tucker confirmed today, and I 
also believe that we should move forward to confirm other nominees 
pending.
  Mrs. BOXER. Mr. President, I wish to express my strong support for 
California Superior Court Judge Josephine Staton Tucker, who will be 
confirmed today to the U.S. District Court for the Central District of 
California. Judge Tucker was recommended to the President by my 
colleague, Senator Feinstein, and will be a great addition to the 
Federal bench.
  Judge Tucker has had a distinguished career. After graduating from 
Harvard Law School, she served as a Federal clerk for Judge Gibson of 
the Eighth Circuit Court of Appeals. Following her clerkship, she 
practiced labor and employment law at Morrison & Foerster in San 
Francisco and Irvine, CA, becoming a partner at the firm in 1995. In 
2002, she was appointed by then-Governor Gray Davis to the Orange 
County Superior Court.
  I congratulate Judge Tucker and her family on this important day, and 
wish her the best as she begins her tenure as a Federal judge.
  Mr. President, I yield the floor. I ask that the time in the quorum 
call be charged to both sides equally. I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  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 apologize for the voice. There is a fair 
amount of pollution in the air. It will be much better as soon as I get 
to Vermont at the end of the week.
  Mr. President, this evening the Senate is being allowed to confirm a 
few

[[Page S5188]]

more of the 26 judicial nominations that have been reported by the 
Senate Judiciary Committee over the past several months, but that 
continue to be stalled by the Republican leadership. We have yet to be 
allowed to consider nominations reported last November. In addition to 
the three nominations being considered today, there are more than a 
dozen more judicial nominations that were reported unanimously by the 
Judiciary Committee, and a total of almost two dozen that are being 
held up without good reason. There is no excuse for these months of 
delay.
  The Senate Republican leadership refuses to enter into time 
agreements on these nominations. Their stalling and obstruction is 
unprecedented. They refuse to enter into a time agreement to consider 
the North Carolina nominees to the Fourth Circuit, who were reported by 
the committee in January, one unanimously and one with only a single 
negative vote. They refuse to enter into a time agreement to debate and 
vote on the Sixth Circuit nominee from Tennessee who was reported last 
November. I have told Senator Alexander that all Democrats are prepared 
to vote on that nominee and have agreed to do so since November. It is 
his own leadership that continues to obstruct the nominee from 
Tennessee.
  The Senate is well behind the pace I set for President Bush's 
judicial nominees in 2001 and 2002. A useful comparison is that in 
2002, the second year of the Bush administration, the Democratic Senate 
majority's hard work led to the confirmation of 72 Federal circuit and 
district judges nominated by a President from the other party. In this 
second year of the Obama administration, we have confirmed just 19 so 
far--72 to 19.
  In the first 2 years of the Bush administration, we confirmed a total 
of 100 Federal circuit and district court judges. So far in the first 2 
years of the Obama administration, the Republican leadership has 
successfully obstructed all but 31 of his Federal circuit and district 
court nominees--100 to 31. Today that number will rise, but to just 34. 
Meanwhile Federal judicial vacancies around the country hover around 
100.
  By this date in President Bush's Presidency, the Senate had confirmed 
57 of his judicial nominees. Despite the fact that President Obama 
began sending us judicial nominations 2 months earlier than did 
President Bush, the Senate has to date only confirmed 31 of his Federal 
circuit and district court nominees--57 to 31.
  Last year, Senate Republicans refused to move forward on judicial 
nominees. The Senate confirmed the fewest number of judges in 50 years. 
The Senate Republican leadership allowed only 12 Federal circuit and 
district court nominees to be considered and confirmed despite the 
availability of many more for final action. They have continued their 
obstruction throughout this year. By every measure the Republican 
obstruction is a disaster for the Federal courts and for the American 
people.
  To put this into historical perspective, consider this: In 1982, the 
second year of the Reagan administration, the Senate confirmed 47 
judges. In 1990. the second year of the George H.W. Bush 
administration, the Senate confirmed 55 judges. In 1994, the second 
year of the Clinton administration, the Senate confirmed 99 judges. In 
2002, the second year of the George W. Bush administration, the Senate 
confirmed 72 judges. The only year comparable to this year's record-
setting low total of 16 was 1996, when the Republican Senate majority 
refused to consider President Clinton's judicial nominees and only 17 
were confirmed all session.
  Senate Democrats moved forward with judicial nominees whether the 
President was Democratic--1994--or Republican--1982, 1990, 2002--and 
whether we were in the Senate majority--1990, 1994, 2002--or in the 
Senate minority--1982. Senate Republicans, by contrast, have shown an 
unwillingness to consider judicial nominees of Democratic Presidents--
1996, 2009, 2010.
  Over the last recess, I sent a letter to Senator McConnell and to the 
majority leader concerning these matters. In that letter, I urged, as I 
have since last December, the Senate to schedule votes on these 
nominations without further obstruction or delay. I called on the 
Republican leadership to work with the majority leader to schedule 
immediate votes on consensus nominations--many, like those finally 
being considered today, I expect will be confirmed unanimously--and 
consent to time agreements on those on which debate is requested. As I 
said in the letter, if there are judicial nominations that Republicans 
truly wish to filibuster--after arguing during the Bush administration 
that such action would be unconstitutional and wrong--then they should 
so indicate to allow the majority leader to seek cloture to end the 
filibuster. It is outrageous that the majority leader may be forced to 
file cloture petitions to get votes on the North Carolina, Tennessee 
and other nominees.
  The three nominees being considered today were all reported 
unanimously by the Judiciary Committee in March, more than 3 months 
ago. They could and should have been confirmed long before now. They 
are supported by their home State Senators. I congratulate them on 
their confirmation today.
  After these votes, there will still be 23 judicial nominees favorably 
reported by the Judiciary Committee being stalled from Senate 
consideration by the Republican leadership. We should change this 
course, and schedule confirmation votes without further delay.
  Mr. President, I realize about half the time remaining is mine. No 
one else is seeking recognition.
  First off, I wish to thank Senator Isakson for his kind words 
earlier.
  As I announced last month, the confirmation hearing on the 
President's nomination of Elena Kagan to be an Associate Justice of the 
Supreme Court will begin next Monday. On Monday, I will give each 
Senator who is a member of the committee an opportunity to deliver an 
opening statement. After the nominee is presented to the committee, she 
will proceed with her opening statement. On Tuesday morning we will ask 
questions of the nominee. I hope that we will conclude the hearing by 
the end of the week, including testimony from a few public witnesses, 
as has become our custom.
  Over the last few weeks, I have come to the Senate floor to outline 
the qualifications and achievements of the nominee, and to comment on 
the attacks that have been launched against her. I have noted my 
disappointment that too many Republican Senators seem predisposed to 
oppose the nomination.
  When he set out to find a well-qualified nominee to replace retiring 
Justice John Paul Stevens, the President said this:

       I will seek someone who understands that justice isn't 
     about some abstract legal theory or footnote in a casebook. 
     It's also about how laws affect the daily realities of 
     people's lives--whether they can make a living and care for 
     their families, whether they feel safe in their homes and 
     welcome in our nation.

  In introducing Solicitor General Kagan as his Supreme Court nominee, 
President Obama praised her ``understanding of the law, not as an 
intellectual exercise or words on a page, but as it affects the lives 
of ordinary people.''
  President Obama is not alone in recognizing the value of judges and 
Justices who are aware that their duties require them to understand how 
the law works, and the effects it has in the real world. Within the 
last month, two Republican appointees to the Supreme Court have made 
the same point. Last month, Justice Anthony Kennedy told a joint 
meeting of the Palm Beach and Palm Beach County Bar Associations that, 
as a Justice:

       You certainly can't formulate principles without being 
     aware of where those principles will take you, what their 
     consequences will be. Law is a human exercise and if it 
     ceases to be that it does not deserve the name law.

  In addition, Justice David Souter, who retired and was succeeded by 
Justice Sotomayor last year, delivered a thoughtful commencement 
address at Harvard University. He spoke about judging and explained why 
thoughtful judging requires consideration of human experience and 
grappling with the complexity of constitutional questions in a way that 
takes the entire Constitution into account. He spoke about the need to 
``keep the constitutional promises our nation has made.'' Justice 
Souter concluded:

       If we cannot share every intellectual assumption that 
     formed the minds of those who framed that charter, we can 
     still address the constitutional uncertainties the way they 
     must have envisioned, by relying on reason, by respecting all 
     the words the Framers wrote, by facing facts, and by seeking 
     to understand their meaning for living people.


[[Page S5189]]


  Justice Souter understood the real-world impact of the Supreme 
Court's decisions, as does, I believe, his successor Justice Sotomayor. 
Across a range of fields including bankruptcy, the fourth amendment, 
statutory construction, and campaign finance, Justice Sotomayor has 
written and joined opinions that have paid close attention to the 
significance of the facts in the record, to the considered and 
longstanding judgments of the Congress, to the arguments on each side, 
to the Supreme Court's precedents, and to the real-world ramifications 
of the Supreme Court's decisions. She has voted to keep the courthouse 
doors open in important employment discrimination and pension rights 
cases.
  A hallmark of real-world judging is acknowledging the challenges of 
construing the Constitution's broad language given our social and 
technological developments. I am talking about getting away from 
sloganeering and being concrete. I appreciate Justices like Justice 
John Paul Stevens, Justice David Souter and Justice Sandra Day O'Connor 
who are grounded, who draw on the lessons of experience and use common 
sense. In the real world of judging, there are complex cases with no 
easy answers. In some, as Justice Souter pointed out, different aspects 
of the Constitution point in different directions, toward different 
results, and need to be reconciled.
  This approach to judging is not only mainstream, it is as old as the 
Constitution itself and has been evident throughout American history. 
Chief Justice John Marshall wrote for a unanimous Supreme Court in the 
1819 landmark case of McCulloch v. Maryland that for the Constitution 
to contain detailed delineation of its meaning ``would partake of the 
prolixity of a legal code, and could scarcely be embraced by the human 
mind.'' He understood, as someone who served with Washington, 
Jefferson, Adams and Madison, that its terms provide ``only its great 
outlines'' and that its application in various circumstances would need 
to be deduced. The ``necessary and proper'' clause of the Constitution 
entrusts to Congress the legislative power ``to make all laws which 
shall be necessary and proper for carrying into execution'' the 
enumerated legislative powers of article I, section 8, of our 
Constitution as well as ``all other powers vested by this Constitution 
in the Government of the United States.'' In construing it, Chief 
Justice Marshall explained that expansion clause ``is in a 
constitution, intended to endure for ages to come, and consequently, to 
be adapted to the various crises of human affairs.'' He went on to 
declare how, in accordance with a proper understanding of the 
``necessary and proper'' clause and the Constitution, Congress should 
not by judicial fiat be deprived ``of the capacity to avail itself of 
experience, to exercise its reason, and to accommodate its legislation 
to human affairs'' by judicial fiat. Chief Justice Marshall understood 
the Constitution, knew its text and knew the Framers. He rejected 
stagnant construction of the Constitution.
  McCulloch v. Maryland was the Supreme Court's first construction of 
the ``necessary and proper'' clause. The most recent was just last 
month in United States v. Comstock. That case upheld the power of 
Congress to enact the Adam Walsh Child Protection and Safety Act, which 
included provisions authorizing civil commitment of sexually dangerous 
Federal prisoners who had engaged in sexually violent conduct or child 
molestation and were mentally ill. Quoting Chief Justice Marshall's 
language from McCullough, Justice Breyer wrote in an opinion joined by 
a majority of the Supreme Court, including Chief Justice Roberts, about 
the ``foresight'' of the Framers who drafted a Constitution capable of 
resilience and adaptable to new developments and conditions.

  Justice Breyer's judicial philosophy is well known. A few years ago, 
he authored ``Active Liberty'' in which he discussed how the 
Constitution and constitutional decisionmaking protects our freedoms 
and, in particular, the role of the American people in our democratic 
government. When he writes about how our constitutional values applying 
to new subjects ``with which the framers were not familiar,'' he looks 
to be faithful to the purposes of the Constitution and the consequences 
of various decisions.
  During the Civil War, in the 1863 Prize Cases decision, the Supreme 
Court upheld the constitutionality of President Lincoln's decision to 
blockade southern ports before a formal congressional declaration of 
war against the Confederacy. Justice Grier explained that it was no 
less a war because it was a rebellion against the lawful authority of 
the United States. Noting that Great Britain and other European nations 
had declared their neutrality in the conflict, he wrote that the Court 
should not be asked ``to affect a technical ignorance of the existence 
of a war, which all the world acknowledges to be the greatest civil war 
known in the history of the human race.'' That, too, was real-world 
judging.
  In the same way, the Supreme Court decided more recently in Rasul v. 
Bush, that there was jurisdiction to decide claim under the Great Writ 
securing our freedom, the writ of habeas corpus, from those in U.S. 
custody being held in Guantanamo. Justice Stevens, a veteran of World 
War II, engaged in real-world judging, recognizing that the United 
States exercised full and exclusive authority at Guantanamo if not 
ultimate, territorial sovereignty. The ploy by which the Bush 
administration had attempted to circumvent all judicial review of its 
actions was rejected recognizing that ours is a government of checks 
and balances.
  Examples of real-world judging abound in the Supreme Court's 
decisions upholding our individual freedoms. For example, the First 
Amendment expressly protects freedom of speech and the press, but the 
Court has applied it, without controversy, to television, radio 
broadcasting, and the Internet. Our privacy protection from the fourth 
amendment has been tested but survived the invention of the telephone 
and institution of Government wiretapping because the Supreme Court did 
not limit our freedom to tangible things and physical intrusions but 
sought to ensure privacy consistent with the principles embodied in the 
Constitution.
  Real-world judging is precisely what the Supreme Court did in its 
most famous and admired modern decision in Brown v. Board of Education. 
I recently saw the marvelous production of the George Stevens, Jr., 
one-man play ``Thurgood'' starring Laurence Fishburne. It was an 
extraordinary evening recalling one of the great legal giants of 
America. At one point, Justice Marshall reads a few lines from the 
unanimous decision of the Supreme Court in 1954 that declared racial 
discrimination in education unconstitutional. Chief Justice Warren had 
written:

       In approaching this problem, we cannot turn the clock back 
     to 1868, when the [Fourth] Amendment was adopted or even to 
     1896 when Plessy v. Ferguson was written. We must consider 
     public education in the light of its full development and its 
     present place in American life throughout the Nation. Only in 
     this way can it be determined if segregation in public 
     schools deprives these plaintiffs of the equal protection of 
     the laws.

  That was real-world judging that helped end a discriminatory--and 
dark--chapter in our history. The Supreme Court did not limit itself to 
Constitution as written in 1787. At that point in our early history, 
``We the People'' did not include Native Americans or African-American 
slaves, and our laws failed to accord half the population equality or 
the right to vote because they were female. Real-world judging takes 
into account that the world and our Constitution have changed since 
1788. It took into account not only the Civil War, but the Civil War 
amendments to the Constitution adopted between 1865 and 1870.
  Would anyone today, even Justice Scalia, really read the eighth 
amendment's limitation against cruel and unusual punishment to allow 
the cutting off of ears that was practiced in colonial times? Of course 
not, because the standard of what is cruel and unusual punishment was 
not frozen for all time in 1788. Does anyone dispute today that the 
fundamental rights set forth in the Bill of Rights are correctly 
applied to the States through the due process clause of the 14th 
amendment? Literally, the freedoms in our Bill of Rights were expressed 
only as limitations on the authority of Congress. Does anyone think 
that the equal protection clause of the 14th amendment cannot be read 
to prohibit gender discrimination? It was most assuredly not

[[Page S5190]]

women that its drafter had in mind when it was adopted.
  Our Constitution was written before Americans had ventured into outer 
space, or cyberspace. It was written before automobiles, airplanes or 
even steamboats. Yet the language and principles of the Constitution 
remain the same as it is applied to new developments. The Constitution 
mentions our ``Armed Forces'' but there was no air force when the 
Constitution was written. Similarly, in construing the ``commerce 
clause'' and the intellectual property provisions to provide copyright 
and patent protection for ``writings and discoveries,'' the Supreme 
Court has engaged in real-world judging as it applies our 
constitutional principles to the inventions, creations and conditions 
of the 21st century. Jefferson and Madison may have mastered the quill 
pen, but never envisioned modern computers.
  There are unfortunately occasions on which the current conservative, 
sometimes activist, majority on the Supreme Court did not engage in 
real-world judging. One such case, the Lilly Ledbetter case, would have 
perpetuated unequal pay for women, by using a rigid, results-oriented, 
cramped reading of a statute to defy congressional intent. We corrected 
that case by statute. Similarly, the Gross decision seeks to close our 
courts to those treated unfairly. The legislature must correct it. And, 
of course, the Citizens United case wrongly reversed 100 years of legal 
developments to unleash corporate influence in elections.
  We saw yet another troubling example in a narrow 5-4 decision handed 
down earlier today in a case called Rent-A-Center v. Jackson, in which 
the conservative activists in the majority, once again, have ruled in 
favor of big business at the expense of hardworking Americans. With 
this narrow decision, the five Justices in the majority have overridden 
the intent of Congress in passing the Federal Arbitration Act and 
abandoned our longstanding tradition of allowing people to go to court 
to challenge unconscionable agreements. Just as it was in the wake of 
the Ledbetter case, it will be up to Congress to correct this error and 
undo the damage it has done to thousands of people who have no choice 
but to sign unfair agreements in order to get a job and put food on 
their table for their families.
  The issue before the Court was whether a court or an arbitrator 
should decide the enforceability of an agreement to settle disputes 
that may arise. Justice Stevens, writing for the four dissenting 
Justices noted that the question whether a legally binding arbitration 
agreement existed is an issue that the Federal Arbitration Act assigns 
to the courts. Congress did not intend to prevent employers from having 
access to an impartial court's determination whether the agreement was 
unconscionable. Today's ruling turns that purpose, and even the Court's 
own precedent, upside down.
  It is estimated that more than one hundred million Americans work 
under binding mandatory arbitration agreements. Most Americans are not 
even aware that according to the new Supreme Court ruling, they will 
have waived their constitutional rights to a jury trial when they 
accept a job to provide for their families. This divisive decision not 
only closes the courthouse doors to millions of American workers and 
their families, it gives big business even more incentive to require 
their employees to sign one-sided arbitration agreements as a condition 
of employment.
  Considering how the law will work in the real world is an 
indispensable part of a judge's responsibility. I expect that Elena 
Kagan learned that lesson early in her legal career when she clerked 
for Justice Marshall. In 1993, upon the death of Justice Thurgood 
Marshall, she observed:

       Above all, he had the great lawyer's talent . . . for 
     pinpointing a case's critical fact or core issue. That trait, 
     I think, resulted from his understanding of the pragmatic--of 
     the way in which the law acted on people's lives.

  If confirmed, Elena Kagan would be the third member of the current 
Supreme Court to have had experience working in all three branches of 
the government prior to being nominated. Some have criticized her work 
during the Clinton administration as political. I suggest that a fair 
reading of her papers indicates that she has the ability to take many 
factors into account in analyzing legal problems and that her skills 
include practicality, principle and pragmatism. These were all used in 
their service to the American people by Justices Sandra Day O'Connor, 
Souter and Stevens.
  I have always thought that a nominee's judicial philosophy was 
important. Nearly 25 years ago, I noted in an earlier hearing for a 
Supreme Court nominee:

       There can hardly be an issue closer to the heart of the 
     Senate's role than a full and public exposition of the 
     nominee's approach to the Constitution and to the role of the 
     courts in discerning and enforcing its commands. That is what 
     I mean by judicial philosophy.

  It is only recently that some Republican Senators conceded that 
judicial philosophy matters. I hope this means that they will abandon 
the false premise that all a Justice does is mechanically apply obvious 
legal dictates to reach preordained outcomes. There is more to serving 
the country as a Supreme Court Justice. A Supreme Court Justice needs 
to exercise judgment, should appreciate for the proper role of the 
courts in our democracy, and should consider the consequences of 
decisions on the fundamental purposes of the law and in the lives of 
Americans--in other words, engage in real-world judging.
  I intend to ask the nominee about her judicial philosophy and about 
real-world judging. That is what I have done through the course of a 
dozen Supreme Court nominations hearings. Real-world judging is an 
important part of American constitutional life.
  As I have said, I reject the ideological litmus test that Senate 
Republicans would apply to Supreme Court nominees. Unlike those on the 
right who drove President Bush to withdraw his nomination of Harriet 
Miers and those who opposed Justice Sotomayor, I do not require every 
Supreme Court nominee to swear fealty to the judicial approach and 
outcomes ordained by adhering to the narrow views of Justice Scalia and 
Justice Thomas. I expect judges and Justices to faithfully interpret 
the Constitution and apply the law, and also to look to the legislative 
intent of our laws and to consider the consequences of their decisions. 
I hope that judges and Justices will respect the will of the people, as 
reflected in the actions of their democratically elected 
representatives in Congress, and serve as a check on an overreaching 
executive.
  What others seem to want is assurance that a nominee for the Supreme 
Court will rule the way they want so that they will get the end results 
they want in cases before the Supreme Court. Lack of such assurances 
was why they vetoed President Bush's nomination of Harriet Miers, the 
third woman to be nominated to the Supreme Court in our history and the 
only one not to be confirmed. They forced Ms. Miers to withdraw even 
while Democrats were preparing to proceed with her hearing. They do not 
want an independent judiciary. They demand Justices who will guarantee 
the results they want. That is their ideological litmus test. As 
critics level complaints against Elena Kagan, I suspect that the real 
basis of that discontent will be that the nominee will not guarantee a 
desired litigation outcome.
  Of course that is not judging. That is not even umpiring. That is 
fixing the game. It is conservative activism plain and simple. It is 
the kind of conservative activism we saw when the Supreme Court in 
Ledbetter disregarded the plain language and purpose of title VII. It 
is the kind of activism we saw when, this past January, a conservative 
activist majority turned its back on the Supreme Courts own precedents, 
the considered judgment of Congress, the interests of the American 
people and our long history of limiting corporate influence in 
elections in their Citizens United decision.
  We can do better than that. In fact, we always have done better than 
that. In reality, we can expect Justices who are committed to do the 
hard work of judging required of the Supreme Court. In practice, this 
means that we want Justices who will pay close attention to the facts 
in every case that comes before them, to the arguments on every side, 
to the particular language and purposes of the statutes they are 
charged with interpreting, to their own precedents, to the traditions 
and longstanding historical practices of this

[[Page S5191]]

Nation, and to the real-world ramifications of their decisions. Judging 
is not just textual and is not automatic. If it were, a computer could 
do it. If it were, important decisions would not be made 5 to 4.
  The resilience of the Constitution is that its great concepts and 
phrases are not self-executing. They involve constitutional values that 
need to be applied. Cases often involve competing constitutional 
values. In the hard cases that come before the Court in the real world, 
we want--and need--Justices who have the good sense to appreciate the 
significance of the facts in the cases in front of them as well the 
ramifications of their decisions in human and institutional terms. I 
expect in close cases that hard-working Justices will sometimes 
disagree about results. I do not expect to agree with every decision of 
every Justice. I understand that. I support judicial independence. I 
voted for Justice Stevens, Justice O'Connor and Justice Souter, who 
were all nominees of Republican Presidents.
  A year ago, most Republican Senators opposed the nomination of 
Justice Sotomayor to the Supreme Court, in spite of her outstanding 
record for more than 17 years as a Federal district and court of 
appeals judge. Most Republican Senators opposed Justice Sotomayor's 
nomination not because she lacked the requisite professional 
qualifications or because there were issues about her character or 
integrity. Her record was impeccable. Sadly, the complaints about both 
Justice Sotomayor and now being echoed in opposition to Solicitor 
General Kagan are based on the two nominees' unwillingness to promise 
to deliver results that align with a narrow political ideology.
  We 100 who are charged with giving our advice and consent on Supreme 
Court nominations should consider whether those nominated have the 
skills, temperament and good sense to independently assess in every 
case the significance of the facts and the law and real-world 
ramifications of their decisions. I have urged Republican and 
Democratic Presidents to nominate people from outside the judicial 
monastery because I think real-world experience is helpful and because 
I know that real-world judging matters in the lives of the American 
people. The American people live in a real world of great challenges. 
We have a guiding charter that provides great promise. At the end of 
the day, the Supreme Court functions in the real world that affects all 
Americans. Judicial nominees need to appreciate that simple, undeniable 
fact. history--segregation.

  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time remains on this side?
  The PRESIDING OFFICER. Six and a half minutes.
  Mr. SESSIONS. Mr. President, since Ms. Kagan was nominated, President 
Obama and his administration have attempted to defend not only her 
discriminatory treatment of the military at Harvard but to do so 
through misleading and even untrue statements. Indeed, Vice President 
Biden said Ms. Kagan's policy was ``right,'' and he suggested she was 
merely following the law, both of which were not correct.
  The recent statements made by the White House after the release late 
Friday of relevant records on this matter are most troubling. The 
records not only prove Ms. Kagan deliberately obstructed military 
activity at the Harvard campus during wartime, but they reveal her 
actions were even more concerning than previously known. The White 
House continues to insist she worked to accommodate military 
recruiters--which is just the opposite of accurate--that she 
assiduously worked to follow the law--not so--and to ensure that 
Harvard law students could choose a career in the military service. 
Well, I guess they could, but she certainly was not furthering that 
opportunity.
  The documents revealed late Friday night show these statements are 
not accurate and really seem to be part of a campaign to rewrite what 
happened there. The documents show that Ms. Kagan reversed Harvard's 
policy--which allowed the military to come and recruit, as any other 
group would--without basis or notice, in order to block the access of 
the recruiters, not to accommodate them. That is not disputed. It 
shouldn't be disputed.
  The documents further show that she defied Federal law, forcing the 
Department of Defense to use its authority to bring Harvard into 
compliance. They had to threaten to cut off Harvard's money. They 
showed she did not ensure access to military careers and recruiters, 
but that the Office of Career Services prevented the military from even 
posting job openings on campus. They show that she sanctioned a 
demeaning second-class entry system for the military that the 
Department of Defense finally stood up to and said: No, that is 
intolerable and we will not accept it.
  The documents also show that Ms. Kagan continued to fight military 
recruitment even when her defiance of the law meant that Harvard could 
lose $\1/2\ billion a year. In a memorandum we obtained from the 
Department of Defense, Larry Summers--then president of Harvard, now 
President Obama's chief economic adviser--approved the entrance of the 
military recruiters fully on campus over the objection of Dean Kagan. 
Now, that is the fact.
  So this policy was designed to obstruct recruiters and not only to 
end recruiting on campus, really, but to punish and demean the military 
in an attempt to force them to change the ``Don't Ask Don't Tell'' 
policy. But that rule was not enacted by the military. It was enacted 
by Congress and Ms. Kagan's former boss, President Bill Clinton, in 
whose White House she worked for 5 years--without apparently any 
serious objection to his signing of the policy.
  Ms. Kagan's actions, combined with the fact that she had little to 
say about recruiting policy while working with President Clinton, raise 
questions about whether this is just a hostility to the military. They 
were just saluting and following the policy of Congress and the 
President. Why should they be blamed for this? Why should people who 
risk their lives to ensure Harvard's freedom be given second-class 
treatment on the Harvard campus? It was absolutely unacceptable then; 
it is unacceptable now.
  I was involved, and this Congress had to pass a new law, an updated 
Solomon amendment, to end this policy. And Dean Kagan was one of the 
leaders of the law school's efforts. That is just a fact. And to 
suggest otherwise is misleading.
  Here are some quotes from some of the e-mails that were released.

       Harvard Law School is delaying and providing a ``slow 
     role'' to Air Force's efforts to recruit during the Spring 
     recruiting season. Seems they have delayed sufficiently in 
     providing permission that the Season may already be ``too 
     late.''

  That was in February 2005, when she was dean.
  In March 2005, this memo was written:

       The Army was stonewalled at Harvard. Phone calls and e-
     mails went unanswered and the standard response was--we're 
     waiting to hear from our higher authority.

  How about another one? This was in April of 2006:

       We're all searching for a way to limit the polarizing 
     nature of the anti Solomonites--

  Those are the people who were trying to have the Solomon amendment 
passed in Congress thrown out--

     who now rattle sabers over an intent to shout down the 
     military. Dean Kagan is a case in point below as she 
     reportedly ``encouraged students to demonstrate against the 
     presence of recruiters . . . . (and to) express their views 
     clearly and forcefully.''

  Indeed, she sent out e-mails to students explaining why she thought 
this was so important. She was a national leader in this effort.
  Another e-mail, March 10 of 2005. This military person said he 
explained to Harvard that the Third Circuit opinion they were using as 
a pretext to not follow the law had issued a stay of injunction and the 
Solomon amendment remained current law. He goes on to say:

       I asked him if I could at least post a job posting via 
     their office and he said no. He stressed that I could contact 
     interested students via the Harvard veterans Student Group 
     but that his office could not provide any support to us.

  So we need a fair and honest evaluation. I, for one, have frankly 
been disappointed in this administration's obfuscation, deliberately 
attempting to hide the nature of what happened at Harvard, because it 
was, in fact, inexcusable. The administration should not defend this. 
They should give her a

[[Page S5192]]

chance. Maybe she would say she made a mistake; maybe she would defend 
it. But I can't imagine an administration would to want defend this 
kind of policy.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, how much time remains on this side?
  The PRESIDING OFFICER. There is 2 minutes 40 seconds remaining.
  Mr. LEVIN. First, Mr. President, I wish to thank Senator Leahy and 
members of the Judiciary Committee for the hearing they gave to Mark 
Goldsmith for the Eastern District of Michigan. He is an extraordinary 
judge. He has proved it already on the bench in Michigan. He has 
wonderful judicial temperament, he knows how to listen, he knows how to 
think, and he brings to the bench--and will bring to the bench when, 
hopefully, we confirm him--the kind of judicial temperament we want in 
our district court judges. So I thank Senator Leahy and Senator 
Sessions, while he is on the floor. I have talked to Senator Sessions 
about Mark Goldsmith, and I thank him for his receptiveness.
  I believe all the members of the Judiciary Committee who had the 
chance to read the record or to be there at the hearing will agree that 
this is an unusually well-qualified nominee for our district court 
bench, and I thank them for their unanimous vote to bring him out of 
the committee.
  Judge Goldsmith has had an impressive legal career. He graduated with 
high distinction and honors in economics from the University of 
Michigan in 1974. He was a member of the Honors Program in Economics at 
the University of Michigan and founded and served as editor-in-chief of 
the Michigan Undergraduate Journal of Economics. He graduated cum laude 
from Harvard Law School in 1977.
  Judge Goldsmith has served on the Oakland County Circuit Court in the 
civil/criminal division since March 19, 2004, when he was appointed by 
Governor Jennifer Granholm. He also served as a magistrate at the 45-B 
District Court and as a Special Counsel to the State Bar Committee on 
the Unauthorized Practice of Law, a hearing panelist for the Attorney 
Discipline Board and as an adjunct instructor at Wayne State University 
Law School.
  Prior to his service as a circuit court judge, Judge Goldsmith 
practiced law for nearly 25 years. He is admitted to practice in 
several states, as well as the U.S. Supreme Court, U.S Court of Appeals 
for the Sixth Circuit, U.S. Court of Military Appeals, U.S. Air Force 
Court of Military Review and numerous U.S. District Courts.
  Judge Goldsmith is also committed to legal community service. He 
served as president of the Federal Bar Association, Eastern District of 
Michigan Chapter and has served for many years as that organization's 
pro bono chair, receiving certificates of recognition from the U.S. 
District Court, Eastern District of Michigan for his pro bono 
involvement. He is currently a member of the executive board of Wayne 
State University's Center for the Study of Citizenship and a member of 
the Fair Housing Advisory Board of Legal Aid and Defender Association, 
Inc. Further, he helped establish the Circle of Friends--teaching 
language and acculturation skills to immigrants--and has served on the 
board of Forgotten Harvest--a distributor of food to the needy--and on 
the Regional Advisory Board of the B'nai B'rith Anti-Defamation League.
  Judge Goldsmith will be an excellent addition to the Eastern District 
Court and will serve with great distinction. I wish him well and thank 
my colleagues for supporting his nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to have printed 
in the Record the e-mails I made reference to earlier.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     To: Sullivan, John, Mr., DoD OGC, Koffsky, Paul, Mr., DoD OGC
     Subject: FW: AF Phase I Letter to Harvard Background
       I just got back and going through my e-mails . . . Harvard 
     Law School is delaying and providing a ``slow role'' to Air 
     Force's efforts to recruit during the Spring recruiting 
     season. Seems they have delayed sufficiently in providing 
     permission that the Season ending March 4th may already be 
     ``too late''. Any advice? I recommend a Phase I letter if 
     another phone call on Feb 22-24 comes up negative or 
     ``inconclusive''. What do you advise?
                                  ____

     Subject: AF Phase I Letter to Harvard Background
       Good Morning--AF provided the basis for which they would 
     like to send the Phase I letter to Harvard. Both e-mails 
     attached for your files.
       V/R.
                                  ____

     Subject RE: Harvard Phase I Pushups
       . . . checked with Army JAG Recruiting and Major Jackson 
     provided the following.
       ``Hi, Ma'am--
       The Army was stonewalled at Harvard Phone calls and emails 
     went unanswered and the standard response was--we're waiting 
     to hear from higher authority.
       The CSD refused to inform students that we were coming to 
     recruit and the CSD refused to collect resumes or provide any 
     other assistance.
       V/R''
                                  ____

     Subject FW: Harvard Phase I Pushups
       Do you know, . . .
                                  ____

     Subject RE: Harvard Phase I Pushups
       Thanks, . . . Did the other services run into the same 
     problems, or only the AF'' (It would be odd if the law school 
     treated the AF differently from other services).
                                  ____

     Subject FW: Harvard Phase I Pushups
       See below.
                                  ____

     To Sullivan, John, Mr., DoD OGC, . . . Koffsky, Paul, Mr., 
         DoD OGC
     Subject FW: Harvard Phase I Pushups
       I have modified the proposed P&R Action Memo and the 
     proposed DSD Info Memo because the Spring recruiting program 
     will come and go by the time this gets to DSD and without 
     Harvard LS notifying the Air Force . . .
                                  ____

     To: Carr, Bill, CIV, OSD-P&R
     Subject: RE: Solomon Olive Branch
       Bill:
       I have been discussing this with our Legal Counsel office. 
     We have some concerns and will talk to Paul Koffsky when he 
     returns from leave on Tuesday. Please hold off taking any 
     action until Paul and I can get together and talk to you 
     about this.
                                  ____

     From: Carr, Bill, Mr., OSD PR [mailto
         :[email protected]]
     Subject: Solomon Olive Branch
       . . . we had discussed merit of conveying to public an 
     outreach for calm and reason WRT Solomon. You asked that we 
     convey the draft for P&HP review. It is attached, and edits 
     are welcome.
       Doubt we can make it an appealing length for an Op-Ed, so 
     maybe best to think of it as an article for professional 
     journals (e.g., Chronicle of Higher Ed or--more congently--a 
     publication circulated widely among law schools).
       To those ends, would you be willing to take a whack at it, 
     Bob? Many thanks. Bill.
                                  ____

     From: Carr, Bill, CIV, OSD-P&R [mailto
         :[email protected]]
     To: Dr. Curt Gilroy, SES, OSD-P&R
     Subject: S: 3-22-06/Solomon Olive Branch--Or Not
       Curt, I have a mission that requires an ambassadorial type 
     with strong writing talent. . . . comes to mind, particularly 
     since she will reap the fruits of this labor over the 
     forthcoming year(s).
       I spoke with Paul Koffsky today. We're all searching for a 
     way to limit the polarizing nature of the anti-Solomonites 
     who now rattle sabers over an intent to shout down the 
     military. Dean Kagan is a case in point below as she 
     reportedly ``encouraged students to demonstrate against the 
     presence of recruiters . . . (and to) express their views 
     clearly and forcefully.'' Not a true fan of ``equal in 
     quality and scope'' it would appear.
       Despite that (or because of it) we'll want to reach out to 
     academe to find a sober means of accomplishing our varied 
     purposes within statutory intent, but we lack a venue . . . 
     and AALS is too hostile to constructively . . .
                                  ____

     Subject Re: Harvard Law School
       Thanks, . . . share with the other recruiters. I will pass 
     it to OSD.
       Thanks.
       AP/JAX
                                  ____

     Subject Harvard Law School
       Thursday 10 March 2005
       Sir, I just received a phone call from Mr. Mark Weber, 
     Assistant Dean for Career Services, Harvard Law School. All 
     my previous communication has been with one of his staff 
     members, Ms. Kathleen Robinson, the recruitment manager. He 
     stated that he was calling because he ``felt bad that they 
     had left us without an answer'' and wanted to pass on the 
     contact data of the president of the Harvard Veterans Student 
     Group. He stated that the faculty had still not decided 
     whether to allow us to participate in on-campus interviews 
     and that the official on-campus interview program for Spring 
     2005

[[Page S5193]]

     had already concluded. I asked him if we'd be allowed to 
     participate in the Fall 2005 on-campus interview program and 
     he said he did not know.
       Mr. Weber, asked me what our current position on the 
     Solomon Amendment was, and I explained that since the 3rd 
     Circuit had issued a stay of the injunction, the Solomon 
     Amendment was current law and that we were in the process of 
     following the procedures outlined in 32 CPR 216. He asked me 
     when they could expect a letter and I stated that I did not 
     know. We then briefly discussed the utility of on-campus 
     interviews.
       I asked him what generated the phone call and he responded 
     that he ``felt bad they had left us with no answer but still 
     had no answer.''
       I asked him if I could at least post a job posting via 
     their office and he said no. He stressed that I could contact 
     interested students via the Harvard Veterans Student Group 
     but that his office could not provide any support to us.
       Sir, would you like me to forward the above to Mr. Reed and 
     LCDR Syring as well as to my fellow Service recruiters (i.e., 
     Maj. Jackson, LCDR Passarello, and Capt. Houtz?) Also, should 
     I contact the Harvard Veterans Student Group's president. 
     There's danger there, since in the past they were the de 
     facto ``replacement'' for the CSO office's service.
       Interesting timing of the phone call.
       v/r
                                  ____

       . . . that a decision has been made to allow military 
     recruiting, they have engaged in a ``practice'' that in 
     effect denied the Air Force an opportunity to recruit in a 
     manner that is at least equal in quality and scope with other 
     prospective employers who participated in the HLS recruiting 
     program. By delaying until the last minute (or never 
     providing an answer) to the AF request to recruit, the AF is 
     unable to organize and schedule the recruiting effort in time 
     to participate in the HLS program which ends on March 4, 
     2005. We shouldn't allow HLS to ``play this game.''
       Please review and provide comments before I go back to . . 
     . in P&R.
                                  ____

     Subject FW: Harvard Phase I Pushups
       . . .
       Good Afternoon--Mr. Carr requested that I draft an info 
     paper to DSD as outlined below. Attached is draft of info 
     paper. Would you like me to provide a package for formal 
     coordination on the paper or will informal e-mail review be 
     okay?
       Thanks, V/R
                                  ____

     Subject: Harvard Phase I Pushups
       . . . before sending Harvard Phase I letter, we must do 
     following pushups per agreement Koffsky/Carr:
       1. (AP) Info paper to DSD outlining what we're about to do 
     and why (since DSD has had personal involvement), once done 
     (and absent immediate objections);
       2. (OGC) Mr. Koffsky will then alert Jeff Smith, out of 
     house counsel for Harvard on Solomon, who has generally 
     worked faithfully with us, then;
       3. (AP) Notify AF that it is clear to launch.
       Over to you for step 1 Tks' Bill.

  Mr. SESSIONS. Mr. President, I yield the floor, and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The 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. LEVIN. Mr. President, I ask for the yeas and nays on the 
Goldsmith 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 Mark A. Goldsmith, of Michigan, to be United States District Judge 
for the Eastern District of Michigan?
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. REID. I announce that the Senator from Indiana (Mr. Bayh), the 
Senator from West Virginia (Mr. Byrd), the Senator from Illinois (Mr. 
Durbin), the Senator from Florida (Mr. Nelson), and the Senator from 
Oregon (Mr. Wyden) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Utah (Mr. Bennett), the Senator from Missouri (Mr. Bond), the 
Senator from New Hampshire (Mr. Gregg), the Senator from Texas (Mrs. 
Hutchison), the Senator from South Dakota (Mr. Thune), and the Senator 
from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 89, nays 0, as follows:

                      [Rollcall Vote No. 195 Ex.]

                                YEAS--89

     Akaka
     Alexander
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     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)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker

                             NOT VOTING--11

     Bayh
     Bennett
     Bond
     Byrd
     Durbin
     Gregg
     Hutchison
     Nelson (FL)
     Thune
     Vitter
     Wyden
  The nomination was confirmed.

                          ____________________