[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.
____________________