[Congressional Record Volume 156, Number 163 (Friday, December 10, 2010)]
[Senate]
[Page S8782]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          PORTEOUS IMPEACHMENT

  Mr. CARDIN. Mr. President, one of the most solemn obligations of 
Senators is try impeachments. The Constitution provides that the Senate 
shall have the ``sole power to try all impeachments,'' and that ``all 
civil officers of the United States shall be removed from office on 
impeachment'' for various offenses. Senators also take a special oath 
when hearing an impeachment case before the Senate holds an impeachment 
trial.
  I recently heard evidence in the case of Judge Porteous, who would 
have lifetime tenure under the Constitution unless he resigns or is 
removed by the Senate. The House of Representatives impeached Judge 
Porteous on four different articles. After deliberation, I voted to 
convict Judge Porteous of three of the four articles, but voted against 
conviction on one of the articles. I rise to explain my not guilty vote 
on one of the articles.
  Article I stated that Judge Porteous engaged in a pattern of conduct 
that is incompatible with the trust and confidence placed in him as a 
Federal judge. The Senate voted that Judge Porteous was guilty on this 
count by a unanimous vote of 96 to 0.
  Article IV stated that Judge Porteous knowingly made material false 
statements about his past both to the U.S. Senate and to the Federal 
Bureau of Investigation, in order to obtain the office of U.S. district 
court judge. The Senate voted to convict Judge Porteous on this count 
by a vote of 90 to 6.
  I voted against article IV because, in my view, it was duplicative of 
article I.
  As a member of the Senate Judiciary Committee, I regularly review the 
questionnaire and nomination materials for Federal judicial nominees 
who are nominated for lifetime appointments. One question we ask 
nominees on our committee questionnaire--under oath--is whether there 
was ``any unfavorable information that may affect your nomination.'' 
Judicial nominees also fill out SF-86 personnel forms as part of the 
executive branch's review of a potential nomination. One question on 
the form asks--under oath--whether:

       There [is] anything in your personal life that could be 
     used by someone to coerce or blackmail you? Is there anything 
     in your life that could cause an embarrassment to you or to 
     the President if publicly known? If so, please provide full 
     details . . .

  The FBI also asks potential nominees whether they are concealing any 
activity or conduct that could be used to influence, pressure, coerce 
or compromise them in any way or that would impact negatively on their 
character, reputation, judgment or discretion. Judge Porteous answered 
no to all of these questions.
  I am concerned about the vagueness and catchall nature of these 
questions and its responses being the basis of an Article of 
Impeachment. I could understand an Article of Impeachment based on a 
response that hides information that if discovered later would be the 
basis of impeachment and where a separate Article of Impeachment using 
these specific facts was not presented to the Senate by the House of 
Representatives. Also, I would have understood if the statements in 
article IV were included as part of article I. Such was not the case 
here.
  For this reason, I voted not guilty on article IV.

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