[Congressional Record Volume 157, Number 69 (Wednesday, May 18, 2011)]
[Senate]
[Page S3102]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          CARNEY CONFIRMATION

  Mr. RUBIO. Madam President, on May 17, 2011, the Senate considered 
the nomination of Susan Carney to serve as a Judge on the Second 
Circuit Court of Appeals. I voted against her nomination and want to 
explain my vote.
  The qualifications of a judicial nominee are critically important. 
Susan Carney received her A.B. in 1973 and her J.D. in 1977 from 
Harvard, graduating both times with honors. Following law school she 
clerked on the First Circuit. She then worked in private practice in 
Washington from 1979 until 1986. After several years of self-
employment, she became affiliated with another Washington law firm in 
1994 before becoming associate general counsel of the Peace Corps in 
1996. Since 1998 she has worked in Yale University's General Counsel's 
Office; she has been deputy general counsel since 2001.
  I question whether Ms. Carney has the proper experience to serve as 
an appellate judge. She has no litigation experience in the last 15 
years. She has never tried any cases to verdict, judgment, or final 
decision. There is nothing in her background that will provide this 
body with any information as to how she will view the law and what she 
may or may not be inclined to do as an appellate court judge.
  When examining a nominee, especially a nominee for the circuit court 
of appeals, I am looking for evidence in the nominee's history that 
will establish that the nominee is a constitutionalist. Someone who 
takes the original, public meaning of the text of the Constitution and 
our laws seriously and does not look for excuses to depart from it and 
read into it what he or she wants.
  In making a determination as to whether to vote for a nominee, I look 
for evidence that the nominee meets Chief Justice John Roberts' analogy 
of a baseball umpire, someone who doesn't bend the rules for the game, 
but just calls them as he sees them; someone who offers no favoritism 
depending on who is at bat.
  All Americans should expect Members of U.S. Senate to carefully 
explore and guard against judicial nominees who are activists. Judges 
who interpret the Constitution and laws in light of his or her personal 
preferences or how he or she thinks they ought to have been written 
should not be on the bench. We should guard against a nominee who would 
elevate ``empathy'' over what the rule of law requires.
  The only information that has been produced about Ms. Carney's 
potential judicial inclinations is that she was a supporter of pro-
abortion groups such as NOW, NARAL, and Planned Parenthood. This 
nominee has little legal and no judicial history to rely upon. The 
burden of proof to show that the nominee will be a fair and impartial 
judge falls on the nominee. There is nothing in the record that would 
allow me to conclude that Ms. Carney will always be fair and impartial 
or that she will not elevate empathy over the rule of law. What I 
believe we should seek is a fair judge should be neutral and rule the 
same way according to the laws as written regardless of who is before 
the court.
  Senators Sessions, Coburn, and Lee voted against this nomination in 
committee. The Republican members of the ABA committee that review 
nominees found Ms. Carney unqualified.
  A review of Ms. Carney's record lacks any indicia as to how she would 
rule or how she would handle her role in this critical position. In my 
view, the burden of proof falls to the nominee and despite the support 
this nomination garnered from my colleagues, I do not believe that Ms. 
Carney met this burden. Given the higher scrutiny associated with 
consideration of nominees to the circuit courts of appeal, this 
nominee's limited record coupled with her history of supporting liberal 
organizations and because the nominee has the burden of establishing 
fidelity to constitutional principles, I voted against this nomination.

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