[Congressional Record Volume 156, Number 173 (Wednesday, December 22, 2010)]
[Senate]
[Pages S11067-S11070]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF BERYL HOWELL

  Mr. LEAHY. I want to say a few words about one of the highly 
qualified nominees belatedly confirmed by the Senate today. Beryl 
Howell has been confirmed to fill a vacancy on the District Court for 
the District of Columbia. Many of us on the Judiciary Committee 
remember her from the 10 years she served as my general counsel and as 
one of the most effective members of our Judiciary Committee staff. 
With her background as a highly decorated Federal prosecutor, she 
worked on issues ranging from criminal justice and national security, 
to the Digital Millennium Copyright Act, the Anti-Cybersquatting 
Consumer Protection Act, and the No Electronic Theft Act. She worked on 
the National Information Infrastructure Protection Act and the computer 
fraud and abuse statute, and on important oversight matters including 
the Judiciary Committee's bipartisan hearings on Ruby Ridge that led to 
improvements at the Federal Bureau of Investigation, FBI. She also 
played important roles in electronic freedom of information 
initiatives, which earned her induction into the Freedom of Information 
Act Hall of Fame.
  When I had the chance to introduce Ms. Howell to the committee at her 
hearing in July, I discussed her impressive background before she 
joined the committee staff. She grew up in a proud military family. She 
was awarded her undergraduate degree with honors in philosophy from 
Bryn Mawr College in Pennsylvania, and earned her law degree at 
Columbia University School of Law, where she was a Harlan Fiske Stone 
Scholar. She clerked for Judge Dickinson Debevoise on the U.S. District 
Court for the District of New Jersey.
  Having worked as a student assistant in a U.S. Attorney's Office, she 
joined the U.S. Attorney's Office for the Eastern District of New York 
in 1987, working there almost 6 years, rising to be the Deputy Chief of 
the Narcotics Section. Her grand jury investigations and prosecutions 
included complex public corruption, narcotics, and money laundering 
cases.
  Descriptions of her cases read like crime novels. She successfully 
prosecuted the leadership of a Chinatown gang, called the Flying 
Dragons, for heroin trafficking, and extradited the head of the gang 
after he fled to Hong Kong. She successfully prosecuted a group of 
Colombian drug dealers and arrested the gang members just as they were 
packing almost $20 million in cash from narcotics proceeds into a 
hidden compartment of a truck to smuggle it out of the country. Then 
some of these defendants attempted a prison escape by bribing 
officials, and she successfully prosecuted the perpetrators of the 
escape plan. She also handled the successful investigation and 
prosecution of over 20 corrupt New York City building inspectors 
engaged in extortion.
  Ms. Howell's work was recognized by her twice being awarded the U.S. 
Attorney Special Achievement Award for Sustained Superior Performance, 
by commendations from the FBI, DEA, and the New York City Department of 
Investigation, and ultimately by the prestigious Attorney General's 
Director's Award for Superior Performance. I always felt lucky to have 
hired her.
  Ms. Howell's career since she left us 7 years ago has been equally 
impressive. She established the Washington, DC, office of a consulting 
and technical services firm specializing in digital forensics, computer 
fraud, and abuse investigations as the Executive Managing Director and 
general counsel of Stroz Friedberg. While in the private sector, she 
received the FBI Director's Award for her work assisting in a 
Government cyber-extortion investigation.
  Ms. Howell has twice been confirmed by the Senate to serve as a 
member of the bipartisan U.S. Sentencing Commission, to which she was 
appointed by President Bush. She contributed to the Sentencing 
Commission report that led to our breakthrough this year with Senate 
passage of historic legislation that Senator Durbin crafted to end 
sentencing disparities, the Fair Sentencing Act.
  She and her husband have raised their three children in the District 
and are long-time citizens here. That involvement, her public service 
background, and her steadfast commitment to justice make her an ideal 
nominee. I commend President Obama for choosing to nominate her. I 
thank the committee for acting to favorably report her nomination 
unanimously in September. I am glad the Senate has now followed suit 
and confirmed her unanimously to serve all the people of the District 
of Columbia fairly and impartially as a U.S. district court judge.
  Mr. McCONNELL. Madam President, I am pleased the Senate in this 
Congress was able to make good progress on filling judicial vacancies, 
especially those vacancies that the Democratic majority unfortunately 
and sometimes inexplicably failed to fill during the last 2 years of 
the Bush Administration.
  The progress we have made is especially noteworthy given the demands 
placed upon the Judiciary Committee by having to process not one, but 
two, Supreme Court nominations. The Sotomayor and Kagan nominations 
together took approximately 6 months of the Committee's time. 
Nevertheless, the Senate was able to confirm a total of 60 lower court 
nominations in this Congress, including 19 nominations while the Kagan 
nomination was pending. By comparison, the last time the Senate had to 
process two Supreme Court nominations in the same Congress, which were 
the Roberts and Alito nominations during the 109th Congress, the Senate 
was able to fill only 51 lower court judicial vacancies, and it 
confirmed far fewer lower court nominations while the Roberts and Altio 
nominations were pending.
  This Congress was also able to fill some long-standing vacancies, 
especially on our courts of appeals. At the end of the Bush 
administration, there

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were 15 judicial emergencies; this Congress was able to fill 10 of 
those 15 judicial emergencies, including numerous judicial emergencies 
on our circuit courts. The Fourth Circuit is illustrative of the 
commitment of Senate Republicans to work in a bipartisan fashion to 
this end.
  At the end of the last Congress, the Fourth Circuit was almost one-
third vacant, despite the fact that President Bush had nominated 
outstanding candidates for these positions. These nominees enjoyed 
strong home State support, including some with strong bi-partisan, 
home-state support. Yet our Democratic friends refused to move these 
nominations. By contrast, this Congress put partisanship aside and 
filled all four of these vacancies, giving badly-needed relief to a 
long suffering Federal circuit.
  We could have made more progress still. But unfortunately, the 
President failed to put forth, and the Democratic Majority failed to 
move, nominations for the vast majority of the current federal 
vacancies. Specifically, the President has failed to even nominate 
individuals for most of the current district court vacancies, putting 
forth only 34 nominations, even though there are 76 vacancies. And of 
those district court nominations he has put forth, 18 of them remain in 
the Democratic-controlled Judiciary Committee. The story is similar for 
our circuit courts: there are 16 vacancies there, but the White House 
has failed to even nominate candidates for seven of those vacancies. 
And of those circuit court nominations he has made, 6 remain in the 
Judiciary Committee. All told, of the current vacancies on our Federal 
courts 80 percent of these seats remain vacant because the President 
either has not nominated anyone, or our Democratic colleagues have not 
processed the ones he has nominated.
  Which brings us to the judicial nominations remaining on the Senate 
floor. Four of these nominations are very controversial. Their 
statements, writings, and records show a willingness to put their own 
views ahead of the dictates of the law and the Constitution. As a 
result, Senate Republicans are not prepared to consent to their 
confirmation, or to a process that will facilitate their confirmation.
  The remaining 15 nominations pending on the Senate floor were not 
reported out of the Judiciary Committee until the waning days of this 
Congress. This is unfortunate. Most of these nominations are to fill 
vacancies that have existed for years; in some cases, for 2 or 3 years, 
or even longer. I do not know why these nominations were not reported 
out of the Judiciary Committee until December. While we were worked 
diligently in the lameduck session to fill numerous judicial 
vacancies--confirming 19 judicial nominees total--we were not able to 
process the remaining 15 nominations that the committee approved late 
in this year.
  But our record of confirming judicial nominations in this lameduck 
Congress certainly compares favorably to the progress that was made on 
judicial nominations in other lameduck Congresses. In the lameduck 
session of the last Congress, the Senate did not confirm any judicial 
nominees. Thirty judicial nominations were not acted upon in that 
session, despite the urgent need for judges on places like the Fourth 
Circuit. In the lameduck session of the Congress before that, our 
Democratic colleagues did not consent to confirming any judicial 
nominees; the one judicial nomination that occurred in the lameduck 
session of the 109th Congress was achieved by the Republican majority 
filing cloture on a nominee. Cloture was invoked on that nomination by 
a vote of 93 to 0, and he was confirmed. But 38 other judicial 
nominations were not acted upon in that Congress, including 15 who were 
ripe for action on the Senate floor. In the lameduck session of the 
108th Congress, only 3 nominations were confirmed, all to the district 
court. Almost two dozen judicial nominations were not acted upon in 
that lameduck session, including several who were pending on the Senate 
floor. In fact, the last time a Senate confirmed as many judicial 
nominations in a lameduck session of Congress as were confirmed in the 
lameduck session of this Congress was in 2002, when 20 judicial 
nominees were confirmed at the end of the 107th Congress.
  I am hopeful we can continue to work in a bipartisan fashion in the 
next Congress on judicial nominations and that the President will join 
us in that effort by not nominating or re-nominating judicial nominees 
who show a willingness to follow their own beliefs, rather than the 
requirements of the law.
  Mr. LEAHY. Madam President, as the 111th Congress draws to a close, 
Senate Republicans have finally consented to consider half of the 
judicial nominations that have been pending on the Senate's Executive 
Calendar, some for nearly a year, awaiting a final Senate vote. We 
began with 38 judicial nominees to be considered and the Senate is 
being prevented from voting on 19. These are all superbly qualified 
nominees, most were reported with bipartisan support and many 
unanimously. Thirteen of these nominations on which we are not being 
allowed to vote are to fill judicial emergency vacancies, as determined 
by the nonpartisan Administrative Office of the U.S. Courts. Yet for 
month after month, many of these nominations have been stalled, just 
languishing before the Senate as Senate Republicans refused to consent 
to moving forward. Congress will adjourn for the year without 
completing its work on these nominations.
  Senate Republicans' strategy of delaying and blocking judicial 
nominations across the board has led to judicial vacancies nearly 
doubling over the last 2 years. Vacancies remain at nearly 100 with 
more than 40 judicial emergencies. The Republican leadership was 
unmoved by pleas from the President, the Attorney General, two Supreme 
Court Justices, the President of the American Bar Association, the 
Federal Bar Association, retired Federal judges, current chief judges 
and Federal prosecutors calling on the Senate to address the growing 
vacancies crisis. They disregarded the pleas to end the senseless 
delays and needless blockade of consensus nominations and to vote 
whether to confirm the nominations sent forward by the Senate Judiciary 
Committee to fill the vacancies in the Federal courts.
  Each of the judicial nominations now before the Senate will upon 
adjournment be returned to the President, the vacancy will remain, and 
the confirmation process will have to start over next year. Just a few 
years ago Senate Republicans were united in demanding that every 
nomination reported by the Senate Judiciary Committee to the Senate 
deserved a vote. They argued that was our constitutional duty. Well, 
the Constitution has not been amended. The only thing that has changed 
is that the American people changed Presidents.
  In 2001 and 2002, the first 2 years of the Bush administration, the 
Senate Judiciary Committee reported 100 judicial nominees of President 
Bush. I was the chairman. We did not adjourn in 2002 until we had given 
a vote to every one of those 100 nominees and confirmed them. I did not 
support all of them but I did not prevent those votes. I worked to fill 
the vacancies on the Federal courts. That was with a Democratic 
majority in the Senate. All 100 were considered before the end of the 
107th Congress, including two controversial circuit court nominations 
reported and then confirmed during the lameduck session in 2002, after 
the midterm elections.
  This Congress the Senate Judiciary Committee held hearings, 
considered and was able to favorably report 80 nominees to Federal 
circuit and district court vacancies. Only 60 have been allowed Senate 
votes. This is a historically low number and percentage for the first 
two years of a new Presidency. Last year only 12 Federal circuit and 
district court judges were confirmed. It was the lowest number in more 
than 50 years. This year the Senate has been allowed to consider fewer 
than 50 judicial nominees. That has led to the lowest confirmation 
total for the first 2 years of a new Presidency in 35 years. And this 
is taking place during a period when Federal judicial vacancies have 
doubled.
  By nearly every measure--the number of nominees confirmed, the 
percentage of nominees confirmed, the pace of nominees being considered 
on the floor, the skyrocketing vacancy numbers--the results are dismal. 
During the first 2 years of the Bush administration, Democrats in the 
Senate worked to consider and confirm 100 judicial nominees. During the 
first two years of the Obama administration,

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Senate Republicans have limited Federal circuit and district court 
confirmations to 60. They were delayed on average six times longer than 
it took President Bush's judicial nominees to be considered by the 
Senate.
  Senate Republicans have returned to the strategy they used during the 
Clinton administration, when they pocket filibustered more than 60 of 
his judicial nominations, leading to a vacancy crisis. Their years of 
refusing to proceed on President Clinton's nominations led Chief 
Justice William Rehnquist, a conservative appointed by Republican 
Presidents, to chastise them for failing to address the needs of the 
Federal judiciary. In those days, Federal judicial vacancies rose to 
more than 110 by the end of the Clinton administration, a historically 
high vacancy number. Current across the board delays eventuated in 111 
Federal court vacancies this year.
  When Democrats regained the Senate majority halfway into President 
Bush's first year in office, we reported and confirmed 100 judicial 
nominees during the 17 months I served as chairman of the Judiciary 
Committee in the 107th Congress. We continued to work cooperatively to 
make progress on nominations whether in the majority or the minority 
for the rest of President Bush's administration. As a result, overall 
judicial vacancies were reduced during the Bush years from more than 10 
percent to less than four percent. During the Bush years, the Federal 
court vacancies were reduced from 110 to 34 and Federal circuit court 
vacancies were reduced from a high of 32 down to single digits.
  This progress has not continued once the American people elected 
President Obama. Senate Republicans have returned to the strategy of 
across-the-board delays and obstruction of the President's judicial 
nominations, again leading to skyrocketing vacancies. Last year the 
Senate confirmed only 12 Federal circuit and district court judges, the 
lowest total in 50 years. This year we confirmed less than 50 more 
Federal circuit and district judges. That has led to the lowest 
confirmation total for the first 2 years of a new Presidency in 35 
years. We are not even keeping up with retirements and attrition. As a 
result, judicial vacancies rose again over 110 again this year.
  The Senate's Republican leadership seems determined to end the 
Congress as it began it, obstructing President Obama's judicial 
nominations. In November 2009, the Senate confirmed Judge David 
Hamilton of Indiana to the Seventh Circuit after rejecting a Republican 
filibuster of President Obama's first judicial nomination. Judge 
Hamilton was no radical. He had the support of the Senate's senior 
Republican, the senior Senator from Indiana. He had served nearly 15 
years on the Federal bench. Rather than welcome the nomination as an 
effort by President Obama to step away from the ideological battles of 
the past, Senate Republicans ignored Senator Lugar's support, 
distorting Judge Hamilton's record and filibustering his nomination. 
Republican Senators who had recently pledged never to filibuster a 
judicial nominee and those who had said they would do so only under 
extraordinary circumstances reversed themselves and joined the partisan 
filibuster. Republican Senators who just a few years earlier had 
proclaimed such filibusters unconstitutional also joined. They 
abandoned all they had said and filibustered a preacher's son and fine 
judge who was known to and supported by his respected Republican home 
State Senator.

  In filibustering President Obama's first judicial nomination, Senate 
Republicans also ignored the standard they had set in a letter they 
sent to President Obama before he had made a single judicial 
nomination. In that letter, they threatened to filibuster any 
nomination made without consultation. Despite the fact that President 
Obama has reached across the aisle to consult, as he did with Senator 
Lugar of Indiana, Senate Republicans have filibustered and delayed 
judicial nominations virtually across the board.
  Delays and obstruction of Senate consideration has attended virtually 
all of well-qualified judicial nominees. Contrary to their statements 
during the Bush administration that every judicial nomination reported 
by the Senate Judiciary Committee was entitled to an up-or-down vote, 
Senate Republicans have refused consent for up-or-down votes on nominee 
after nominee. Since the filibuster of Judge Hamilton, they have 
required the Majority Leader to file cloture on other highly qualified 
circuit court nominees, indeed on a quarter of the 16 circuit court 
nominees the Senate has been allowed to consider.
  No Senator could claim the circumstances surrounding the filibusters 
of President Obama's circuit court nominations to be extraordinary. 
Republicans filibustered the nomination of Judge Barbara Keenan, a 
nominee with nearly 30 years of judicial experience, and the first 
woman to hold a number of important judicial roles in Virginia. She was 
then confirmed 99-0 as the first woman from Virginia to serve on the 
Fourth Circuit Court of Appeals. They filibustered the nomination of 
Judge Thomas Vanaskie, whose 16 years of a experience as a Federal 
district court judge in Pennsylvania are now being put to good use on 
the Third Circuit. They filibustered Judge Denny Chin of the Second 
Circuit, who also had 16 years of experience as a Federal district 
court judge. He is now the only active Asian Pacific American judge to 
serve on a Federal appellate court, and his nomination was confirmed 
unanimously.
  Senate Republicans' tactics reached a new low as they obstructed 
consideration of district court nominations. The blockade of these 
nominations is a dramatic departure from the traditional practice of 
considering district court nominations expeditiously and with deference 
to home state Senators. Among these nominations were Louis Butler of 
Wisconsin, Edward Chen of California, and John McConnell of Rhode 
Island. These nominees were reported by the Committee several times 
with strong support from their home State Senators who know the 
nominees and the needs of the courts in their States best. All three 
were pending for months on the Senate Calendar. In fact, Justice Butler 
and Judge Chen were first reported by the Judiciary Committee over a 
year ago. Obstruction of these district court nominations is 
unprecedented.
  Since 1945, the Judiciary Committee has reported more than 2,100 
district court nominees to the Senate. Out of these 2,100 nominees, 
only 5 have been reported by party-line votes, and 4 of the 5 occurred 
in this Congress. Less than 20 of the 2,100 nominees faced any 
opposition in Committee. Since 1949, cloture motions have been filed on 
only three district court nominations. All three nominations were 
confirmed, and in fact two of the cloture petitions were withdrawn. 
This year Republican opposition to the Butler, Chen and McConnell 
nominations would have required clotures on all three, meaning that in 
1 year they would have matched the number of cloture motions filed on 
district court nominees over the past 62 years.
  These nominees are outstanding Americans who do us a great service by 
their willingness to serve on our Federal courts. Justice Louis Butler, 
Jr., was nominated to fill an emergency vacancy on the U.S. District 
Court for the Western District of Wisconsin. He has 16 years of 
judicial experience at the municipal and State court level and was the 
first African American to serve on the Wisconsin Supreme Court. He has 
the strong support of both of his home State Senators and he earned the 
highest possible rating, unanimously well qualified, from the Standing 
Committee on the Federal Judiciary of the American Bar Association, 
ABA.
  Judge Edward Chen was nominated to fill an emergency vacancy on the 
U.S. District Court for the Northern District of California. He has 
served that court as a Magistrate Judge for the last nine years and has 
accrued an impeccable record of fairness and impartiality. He would 
have been only the second Asian American to serve as a Federal Judge in 
the 150-year history of that District. He was also the first Asian 
American to serve the District as a Magistrate Judge. Judge Chen earned 
the highest possible rating, unanimously well qualified, from the ABA's 
Standing Committee on the Federal Judiciary, and he has the strong 
support of both of his home State Senators.
  Jack McConnell was nominated to serve as a Federal district court 
judge in Rhode Island. With more than 25

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years of experience as a lawyer in private practice, Mr. McConnell has 
the strong support of both Senators from Rhode Island. Individuals and 
organizations from across the political spectrum in that state have 
called for Mr. McConnell's confirmation. The Providence
  Journal endorsed his nomination by saying that he ``in his legal work 
and community leadership has shown that he has the legal intelligence, 
character, compassion, and independence to be a distinguished jurist.'' 
A two-thirds majority of the Judiciary Committee, including Senator 
Graham, voted to favorably report Mr. McConnell's nomination for 
confirmation.
  The Senate should also have been able to have a debate and a vote on 
the nomination of Goodwin Liu of California to the Ninth Circuit Court 
of Appeals. He is a professor at the University of California, 
Berkeley, School of Law, and was nominated by President Obama to fill 
an emergency vacancy on the Ninth Circuit. An acclaimed scholar and a 
nationally recognized expert on constitutional law and educational law 
and policy, Professor Liu earned the highest possible rating, 
unanimously well qualified, from the ABA's Standing Committee on the 
Federal Judiciary. He is a former Supreme Court clerk and a Rhodes 
Scholar who would be only the second, active Asian Pacific American 
judge to serve on a Federal appellate court. Both of Professor Liu's 
home state Senators support his nomination.
  The conservative, Republican-appointed Chief Judge of the Ninth 
Circuit to which Professor Liu has been nominated has written the 
Senate to inform us of crushing caseloads and the urgent need for new 
judges. Justice Anthony Kennedy this August warned the Ninth Circuit 
Judicial Conference about the threat posed by skyrocketing judicial 
vacancies in California and throughout the country. He noted that, ``if 
judicial excellence is cast upon a sea of congressional indifference, 
the rule of law is imperiled.''
  Rather than following a partisan playbook, I wish Republican Senators 
had listened to the cross-section of people and organizations from 
across the political spectrum that have written in strong support of 
Professor Liu's qualifications to serve on the Ninth Circuit. These 
former prosecutors and judges, presidents of universities, renowned 
academics, distinguished practitioners, advocacy groups, and district 
attorneys believe Professor Liu would make an excellent Federal judge. 
So do I.
  I reviewed the record of each of these nominees targeted for 
Republican opposition and carefully considered their character, 
background, and qualifications. I believe they each would have been 
confirmed by the Senate. That they will not be conservative activist 
judges should not disqualify them from consideration by the Senate or 
from serving on the Federal bench.
  In addition to these nominees, there has been a destructive tact in 
which Senate Republicans have systematically delayed votes on consensus 
nominations. The length of time nominations were stalled before a final 
Senate vote is the product of that systematic delay. The fact is that 
nominations have taken on average six times as long before final Senate 
consideration after being reported from the Judiciary Committee, when 
comparing the confirmations in the first two years of the Bush and 
Obama administrations. Several consensus nominations that were 
eventually confirmed unanimously required cloture petitions to be filed 
just to be considered. Other evidence is the fact that more than a 
dozen consensus judicial nominations that have been through the entire 
process are being denied a final vote as the Senate adjourns. I know of 
no precedent for this. Indeed, in the lame duck session at the end of 
President Bush's second year in office, we proceeded to report and 
confirm controversial circuit court nominees. That the Senate is not 
being allowed to consider consensus nominees awaiting a final vote is a 
shame and an unnecessary burden on them and their families and for the 
courts and people they would serve.
  It is a travesty that all of the well-qualified nominees favorably 
reported by the Judiciary Committee could not be confirmed before this 
Congress adjourns. That is what we did when we confirmed 100 judicial 
nominees of President Bush in 2001 and 2002. All 100 of the nominees 
reported favorably by the Judiciary Committee received Senate votes and 
were confirmed, all 100. They include 20 during the lameduck session 
that year and circuit court nominees reported after the election. This 
year even consensus nominees are not being allowed to be considered.
  When the Senate returns for the 112th Congress I hope that all 
Senators will learn from the mounting judicial vacancies and failure to 
make progress in this Congress. I hope that we can follow a path toward 
restoring the Senate's longstanding traditions of expeditiously 
considering nominations and reject the obstruction that blocked 
progress. We must do better to address the needs of the Federal courts 
and the American people who depend on them for justice.

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