[Congressional Record Volume 156, Number 172 (Tuesday, December 21, 2010)]
[Senate]
[Pages S10885-S10888]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF BENITA Y. PEARSON TO BE UNITED STATES DISTRICT JUDGE FOR 
                     THE NORTHERN DISTRICT OF OHIO

                                 ______
                                 

  NOMINATION OF WILLIAM JOSEPH MARTINEZ TO BE UNITED STATES DISTRICT 
                   JUDGE FOR THE DISTRICT OF COLORADO

  The PRESIDING OFFICER. Under the previous order, the Senate will go 
into executive session to consider the following two nominations, which 
the clerk will report.
  The legislative clerk read the nomination of Benita Y. Pearson, of 
Ohio, to be United States District Judge for the Northern District of 
Ohio.
  The legislative clerk read the nomination of William Joseph Martinez, 
of Colorado, to be United States District Judge for the District of 
Colorado.
  Who yields time? The Senator from Alabama.
  Mr. SESSIONS. Mr. President, is there an agreement as to the time?
  The PRESIDING OFFICER. There is 8 minutes total, 4 minutes on each 
side on both nominations in combination.
  Mr. SESSIONS. Mr. President, I would assume the chairman, who will be 
speaking in favor, would want to go first, and I yield to Senator 
Leahy.
  Mr. LEAHY. No, go ahead.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, the two nominees today are nominees who 
came out of the Judiciary Committee with substantial negative votes. 
Mr. Martinez is a long-time member of the American Civil Liberties 
Union. He has refused, when asked at the hearing, by myself and in 
written questions, to state whether he believes the Constitution of the 
United States prohibits the death penalty--not whether he believed in 
it. That is his prerogative. He hid behind the answer that the Supreme 
Court says it is. But the ACLU holds to the view that the cruel and 
unusual punishment provision of the Constitution prohibits the 
imposition of the death penalty and, therefore, it is unconstitutional.
  He refused to answer that question, and I believe that is an 
untenable view. There are four references, at least, in the 
Constitution to the death penalty, and I do not know how somebody could 
take the cruel and unusual clause to override specific references to 
the death penalty which was provided for in every Colony and the 
Federal Government when the Constitution passed.
  With regard to the other nominee, Mrs. Benita Pearson, she has some 
very extreme views on animal rights. When asked by Senator Coburn 
whether it would be in the best interests of a steer to be 
slaughtered--she was asked that in the committee--she said probably not 
in the best interests of the steer, sir. But then you have to look 
beyond that. I mean, the steer is going to lose its life. It is a 
painful situation. And steers, evidence has shown, may have some idea 
or apprehension about the slaughter that is impending. But the next 
step is, is it necessary to slaughter the steer in order to provide 
food for those who might otherwise go hungry or perhaps be malnourished 
without the sustenance that this steer's flesh and hide could provide 
in terms of clothing and matters necessary for the well-being of 
animals.
  Basically, what I understand this to be is that she is suggesting a 
court should enter into some sort of balancing test on whether it is 
legitimate to slaughter a steer, and also she is a member of the ALDF, 
the defense of animals group, that is very extreme in its views.
  For that reason, the National Cattleman's Beef Association and the 
Farm Animal Welfare Coalition strongly oppose the nomination. I think 
her views on this issue are out of the mainstream.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, President Obama nominated William J. 
Martinez to fill a judicial emergency vacancy on the District of 
Colorado last February. Mr. Martinez is a well-respected legal 
practitioner in Denver who has the strong support of both of his home 
State Senators. The statements earlier today from Senator Udall and 
Senator

[[Page S10886]]

Bennet were compelling. They have been steadfast, forthright and 
exceedingly patient. I wholeheartedly agree with them that Bill 
Martinez should now, at long last, be confirmed. When he is, he will 
become only the second Hispanic to serve Colorado as a district court 
judge.
  The Judiciary Committee favorably reported his nomination over 8 
months ago, on April 15. It has been delayed ever since. In May we 
received a letter from the chief judge of the District of Colorado, 
Judge Wiley Y. Daniel, urging us to confirm Mr. Martinez because 
without additional judges ``it is impossible for the court to possess 
the judicial resources that are necessary to effectively discharge the 
business of the court.'' Despite that plea from the chief judge of the 
district, the Senate has not been allowed to consider this nomination 
until today.
  This is another example of the unnecessary delays that have led to a 
judicial vacancies crisis throughout the country. Judicial vacancies 
have skyrocketed to over 100 while nominations are forced to languish 
without final Senate action. In fact, President Obama's nominees have 
been forced to wait on average six times longer to be considered than 
President Bush's judicial nominees reported by the Judiciary Committee 
during the first 2 years of his Presidency.
  I still do not understand why this nomination was subjected to a 
party-line vote before the Judiciary Committee. I recall all the Bush 
nominees who were members of the Federalist Society and other 
conservative litigation centers who were confirmed just a few years 
ago. Can it be that some are seeking to apply a conservative activist 
ideological litmus test and discount Mr. Martinez' qualifications and 
work experience?
  Our ranking Republican Senator, Senator Sessions, reflected on the 
confirmation process last year, saying:

       What I found was that charges come flying in from right and 
     left that are unsupported and false. It's very, very 
     difficult for a nominee to push back. So I think we have a 
     high responsibility to base any criticisms that we have on a 
     fair and honest statement of the facts and that nominees 
     should not be subjected to distortions of their record.

  I listened closely to the Senator's statement against Mr. Martinez 
but heard nothing about anything Mr. Martinez had done or even any 
position taken by the Colorado ACLU in which Mr. Martinez was involved. 
There was nothing on which to base opposition to this qualified 
nominee. Certainly not the ``gotcha'' questions he was asked months 
ago.
  More than two dozen Federal circuit and district court nominations 
favorably reported by the Judiciary Committee still await a final 
Senate vote. These include 17 nominations reported unanimously and 
another 2 reported with strong bipartisan support and only a small 
number of no votes. These nominations should have been confirmed within 
days of being reported. In addition, 15 nominations ready for final 
action are to fill judicial emergency vacancies. With judicial 
vacancies at historic highs, we should act on these nominations. During 
President Bush's first 2 years in office, the Senate proceeded to votes 
on all 100 judicial nominations favorably reported by the Judiciary 
Committee. That included controversial circuit court nominations 
reported during the lameduck session after the election in 2002. In 
contrast, during the first 2 years of President Obama's administration, 
the Senate has considered just 55 of the 80 judicial nominations 
reported by the Judiciary Committee.
  Adding to the letters we have received recently urging us to take 
action to fill vacancies is one sent this week to the Senate leaders by 
the National Association of Assistant United States Attorneys, a group 
of career prosecutors. John E. Nordin, vice president for membership 
and operations, writes:

       Judicial vacancies in our federal courts are reaching 
     historic highs. Our members--career federal prosecutors who 
     appear daily in federal courts across the nation--are 
     concerned by the increasing number of vacancies on the 
     federal bench. These vacancies increasingly are contributing 
     to greater caseloads and workload burdens upon the remaining 
     federal judges. Our federal courts cannot function 
     effectively when judicial vacancies restrain the ability to 
     render swift and sure justice.

  I ask unanimous consent that this letter be printed in the Record. It 
concludes, ``[w]e believe that all judicial nominees approved by the 
Senate Judiciary Committee are deserving of a prompt up-or-down floor 
vote.'' I agree with these career Federal prosecutors who understand 
the vital importance of functioning courts and rely on them every day. 
It is time for the Senate to act on the dozens of judicial nominees 
that have been stalled from final consideration before we adjourn.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           National Association of


                            Assistant United States Attorneys,

                                Lake Ridge, VA, December 17, 2010.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, The Capitol, Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate, The Capitol, Washington, DC.
       Dear Majority Leader Reid and Minority Leader McConnell: 
     Judicial vacancies in our federal courts are reaching 
     historic highs. Our members--career federal prosecutors who 
     daily appear in federal courts across the nation--are 
     concerned by the increasing numbers of vacancies on the 
     federal bench. These vacancies increasingly are contributing 
     to greater caseloads and workload burdens upon the remaining 
     federal judges. Our federal courts cannot function 
     effectively when judicial vacancies restrain the ability to 
     render swift and sure justice.
       As you know, thirty-eight judicial candidates have been 
     approved by the Senate Judiciary Committee and await a Senate 
     floor vote. A large number of these candidates have been 
     approved without controversy by unanimous consent. Some 
     candidates have been named to judgeships whose vacancies have 
     been designated as ``judicial emergencies'' by the Judicial 
     Conference, because of their high caseloads and the 
     significant periods of time that these judgeships have 
     remained unfilled.
       We believe that all judicial nominees approved by the 
     Senate Judiciary Committee are deserving of a prompt up-or-
     down floor vote. Thank you for taking the time to consider 
     our views on this issue and for your leadership.
           Sincerely,

                                           John E. Nordin, II,

                                    Vice President for Membership,
                                                   and Operations.

  Mr. LEAHY. Mr. President, today, the Senate is finally considering a 
judicial nomination that has been stalled since February on the 
Executive Calendar. The nomination of Benita Y. Pearson to serve on the 
Northern District of Ohio was reported favorably by the Judiciary 
Committee more than 10 months ago. Judge Pearson is currently a Federal 
magistrate judge on the court to which she is nominated. When 
confirmed, she will become the first African-American woman to serve as 
a Federal judge in Ohio.
  I have reviewed the record and considered the character, background 
and qualifications of the nominee and join with the Senators from Ohio, 
one a Democrat and the other a Republican, in supporting this nominee. 
Frankly, the opposition is a dramatic departure from the traditional 
practice of considering district court nominations with deference to 
the home State Senators that know the nominees and their districts 
best. I commend Senator Brown on his statement in support of the 
nomination today. As he noted, he worked closely with Senator 
Voinovich, the Republican Senator from his State and a judicial 
screening commission in making this recommendation to the President.
  The obstruction of these district court nominations is unprecedented, 
a sign that a different standard is being applied to President Obama's 
nominees that has never before been applied to the nominees of any 
President, Democratic or Republican. Out of the 2,100 district court 
nominees reported by the Judiciary Committee since 1945, only five have 
been reported by party-line votes. Four of these party-line votes have 
been in this Congress, including the two of the nominations we consider 
today. In fact only 19 of those 2,100 nominees were reported by any 
type of split rollcall vote at all, but five of them--more than 25 
percent of the total--have been this Congress.
  The party-line vote against this nomination in the Judiciary 
Committee was without explanation. Judge Pearson has been a Federal 
judge magistrate for 8 years and a prosecutor before that. Nothing in 
her professional background justifies the delay or opposition to this 
nomination.
  At her hearing, there were some who tried to make a mountain out of a 
mole hill with respect to a statement she made about animals. I just 
worked

[[Page S10887]]

with Senator Kyl and Senator Merkley on a constitutional, legal 
prohibition against vicious videos that show animals being crushed. 
That bill passed unanimously. No Senators thought twice about approving 
that important legislation. I remember a couple of years ago when a 
famous professional football player went to prison for his 
participation in a dog fighting ring. Many Americans were outraged by 
those activities and no Senator questioned the State and Federal laws 
against such activities. Are those who oppose this nomination also now 
opposed to the Humane Society of the United States and to the 
legislative actions we took since they involved animals?
  I join the Senators from Ohio in urging the Senate to confirm Judge 
Pearson without further delay.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN of Ohio. Mr. President, there has been concern, as the 
chairman pointed out and the ranking member pointed out, on Benita 
Pearson's views on animal law. With all due respect to my colleague, 
you know it is a red herring. If you look at the record of Ohio's 
Northern District, which goes back to 1839, there has been exactly one 
case on animal welfare. Some 20 years ago, the Cleveland Zoo was sued 
to stop the transfer of Timmy the gorilla to the Bronx Zoo--I am not 
making this up--from transferring Timmy the Gorilla to the Bronx Zoo 
for mating purposes. The case was dismissed. One case in 170 years.
  Judge Pearson is qualified, say the two former presiding judges, 
Chief Judges Carr and White, and the sitting presiding judge, Judge 
Oliver from the Northern District--a combined 50 years' experience on 
the district court.
  Judge James Carr, the Chief U.S. District Judge at the time of her 
nomination, lauded Judge Pearson as ``a splendid choice . . . eminently 
well-qualified by intelligence, experience . . . and judicial 
temperament.'' His successor, Chief Judge Solomon Oliver, is just as 
supportive of her nomination.
  So is former Chief Judge George White, who wrote that:

       Magistrate Judge Pearson's record as a Judicial Officer and 
     her litigation and business experience do more than idly 
     suggest her readiness to assume the position of District 
     Court Judge. Taken all together, you will be hard-pressed to 
     find a more suitable candidate.

  Mr. BROWN of Ohio. These judges have made glowing reports on Judge 
Benita Pearson, who has been a magistrate, a CPA, practiced privately, 
worked for the U.S. Attorney's Office. She will be the first African-
American woman to sit on the Federal bench in Ohio. She has been 
supported by Senator Voinovich and a bipartisan commission of 17 
lawyers who picked her. She is a great choice. I ask the concurrence of 
my colleagues. I yield to Senator Udall.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. I rise to support the nomination of Bill 
Martinez. Senator Leahy made the case for his nomination and for him to 
be confirmed. I have great affection for my friend from Alabama, but I 
want to set the record clear that Bill Martinez did not work for the 
ACLU, he advised the ACLU. If we are going to raise that standard and 
change the rules, then we ought to remember that the Bush nominations 
often included Federalist Society members and contributors.
  We ought to be careful about setting false standards. Bill Martinez 
was recommended by a bipartisan nominating commission that Senator 
Bennet and I created. He is a good man. His story is a quintessential 
American story. He will be an excellent judge. I urge us all to vote 
for his confirmation today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. How much time is remaining on this side?
  The PRESIDING OFFICER. The Senator has 1 minute 5 seconds.
  Mr. SESSIONS. Mr. President, Mr. Martinez, I know, has a lot of good 
supporters and friends, as I have noted. But he did refuse to answer a 
simple question of whether the U.S. Constitution prohibits the death 
penalty, which I believe the ACLU, of which he was a member and a 
member of the legal panel, definitely favored.
  I do believe Judge Pearson's view that somehow there should be a 
balancing test about whether we should actually slaughter a steer based 
on the need for food or hide is an extreme view also.
  We have had about 15 members of the ACLU confirmed by this 
administration. But we expect this President to submit mainstream 
judges. The ACLU is not mainstream in its positions. I do believe the 
administration needs to understand that this is going to be a more 
contentious matter if we keep seeing the ACLU chromosome as part of 
this process.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I would like nothing better than to vote on 
the judges. We have a number of them who came out unanimously from the 
Senate Judiciary Committee. My friends from the other side are not even 
allowing votes on them.
  We did not do that to President Bush in his first 2 years.
  The PRESIDING OFFICER. The Senator's time has expired.
  The question is, Will the Senate advise and consent to the nomination 
of William Joseph Martinez, of Colorado, to be United States District 
Judge for the District of Colorado?
  Mr. SESSIONS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator for Indiana (Mr. Bayh), and 
the Senator from Oregon (Mr. Wyden) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Brownback), the Senator from New Hampshire (Mr. 
Gregg), and the Senator from Missouri (Mr. Bond).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 56, nays 39, as follows:

                      [Rollcall Vote No. 290 Ex.]

                                YEAS--56

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse

                                NAYS--39

     Alexander
     Barrasso
     Bennett
     Brown (MA)
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kirk
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Wicker

                             NOT VOTING--5

     Bayh
     Bond
     Brownback
     Gregg
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of William Joseph Martinez, of Colorado, to 
be U.S. District Judge for the District of Colorado?
  Mr. VOINOVICH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Indiana (Mr. Bayh) and 
the Senator from Oregon (Mr. Wyden) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Brownback), the Senator from New Hampshire (Mr. 
Gregg), and the Senator from Missouri (Mr. Bond).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 58, nays 37, as follows:

[[Page S10888]]

                      [Rollcall Vote No. 291 Ex.]

                                YEAS--58

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse

                                NAYS--37

     Alexander
     Barrasso
     Bennett
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kirk
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--5

     Bayh
     Bond
     Brownback
     Gregg
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President will be immediately notified of the Senate's action.

                          ____________________