[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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