[Congressional Record Volume 157, Number 89 (Tuesday, June 21, 2011)]
[Senate]
[Pages S3946-S3952]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF MICHAEL H. SIMON TO BE UNITED STATES DISTRICT JUDGE FOR
THE DISTRICT OF OREGON
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nomination,
which the clerk will report.
The assistant legislative clerk read the nomination of Michael H.
Simon, of Oregon, to be United States District Judge for the District
of Oregon.
The PRESIDING OFFICER. Under the previous order, there will be 1 hour
of debate on the nomination, equally divided in the usual form.
Mr. LEAHY. Mr. President, today the Senate will finally consider the
nomination of Michael Simon to fill a judicial emergency vacancy on the
District
[[Page S3947]]
Court for the District of Oregon. Mr. Simon, the head of litigation at
the Portland office of Perkins Coie, is one of the most highly regarded
lawyers in the country. He spent 5 years as a trial attorney at the
Department of Justice during the Reagan administration, including a
stint as a Federal prosecutor, and 3 years as a volunteer judge pro tem
on an Oregon county court. Mr. Simon's nomination has had the strong
support of his home State Senators, Senator Wyden and Senator Merkley,
since he was nominated nearly a year ago and has twice been reported by
the Judiciary Committee with significant bipartisan support. I mention
that because, traditionally, someone like this would go through almost
the first day after he was reported.
I thank the majority leader and the Republican leader for finally
scheduling this vote. It is most unfortunate that the Republicans
objected to considering this nomination when it was reported last year.
That meant that we had to spend more time and taxpayer money to
consider it a second time in the Judiciary Committee, and the
nomination had to be reported again earlier this year. It should not
have taken more than 4 months since the committee reported Mr. Simon's
nomination for a second time for the Senate Republican leadership to
finally consent to debate and a vote.
This is, finally, the last of the judicial nominations reported last
year that could and in my view should have been considered then. Now,
after 6 months of unnecessary delay, the people of the District of
Oregon may finally see a longstanding judicial vacancy filled by a
highly qualified nominee who has always had bipartisan support from the
days he was working for the Reagan administration. The Senate may
finally be able, 6 months into this year, to start to focus on nominees
who had hearings and were considered by the Judiciary Committee this
year. There are currently 16 judicial nominees who were reported
unanimously by the Judiciary Committee over the last several months who
are still awaiting final Senate consideration and confirmation. They
include nominees with the support of Republican home State Senators and
nominees for judicial emergency vacancies. These delays mean that
judicial vacancies around the country remain well above what they
should and could be. With current vacancies hovering around 90 and many
more upcoming, the Senate is being prevented from solving the vacancies
crisis that the Chief Justice, President, Attorney General and judges
around the country have urged us to end.
When we take nominations considered 1 year and then delay them into
the next year, it is wrong to say that you are ``moving right along.''
I have served with Presidents Ford, Carter, Reagan, the first President
Bush, Clinton, the second President Bush, and now President Obama.
During all that time, whether Democrats or Republicans were in the
majority, no President had to put up with these unseemly delays, except
for President Obama.
The delay in considering this nomination is only the latest
demonstration that those on the other side who say the majority leader
can simply call up nominations are wrong. Senators know it is not true.
If that were true, nominees like Mr. Simon would have been considered
and voted on last year.
Some Senators may seek to avoid responsibility for the Senate's
historically slow pace of confirming judicial nominations and claim
their hands are clean, but they know the Senate is a body that requires
consent to avoid extensive delays. They know that if there is no
consent, it takes the burdensome requirement of invoking cloture in
order to end a filibuster and have a vote. Moving forward to address
the ongoing judicial vacancy crisis--and it is a crisis--requires
cooperation. It requires the minority to work together with the
majority and set aside partisan differences for the good of the
American people.
Last week, the Senate was able to get consent to confirm the first
two judicial nominees since May 17, even though almost a score of
qualified nominees has been awaiting final confirmation since that
date. In addition to the Simon nomination, there are 19 judicial
nominations currently pending on the Senate's Executive Calendar. Of
those, 16 are, by anyone's definition, consensus nominees. Seven of
them were nominated to fill judicial emergency vacancies. Sixteen
nominees were unanimously approved by every Republican and every
Democratic Senator on the Judiciary Committee after thorough review,
and an additional nominee was reported with only one Senator in
opposition. All are supported by their home State Senators, Republicans
and Democrats.
These are the kinds of nominees who in past years would have been
confirmed within days of being reported to the Senate. Instead,
extended delays now burden every nomination before the Republican
leadership finally consents, if it does, to take up nominations. Mr.
Simon's nomination was first reported with bipartisan support last
December. Three district court nominations reported unanimously by the
Committee in early April remain stalled before the Senate, Paul Oetken
and Paul Engelmayer of New York, and Romana Manglona of the Mariana
Islands. All of these consensus nominations would easily have been
confirmed if the majority leader was not blocked from bringing them up.
We should not need to file cloture to vote on these kinds of consensus
nominees, but that is what has been required by the Senate Republican
minority. Incidentally, when we have filed for cloture on these
nominees, for many of them we got a vote and they passed
overwhelmingly.
We should have regular votes on President Obama's highly qualified
nominees instead of more delays. We should also restore the Senate's
tradition--a tradition I can speak to as one who has been in the Senate
for 37 years--of working to clear the calendar of pending nominations
before a recess. Contrast that traditional practice with what the
Senate did before the Memorial Day recess, when no judicial nominees
were confirmed. With vacancies still totaling more than 90 on Federal
courts throughout the country, and with nearly two dozen future
vacancies on the horizon, there is no time to delay consideration of
these nominations. If we were to take positive action just on the
nominees who received unanimous support in committee, vacancies could
be reduced below 80 for the first time since the beginning of President
Obama's administration.
With judicial vacancies continuing at crisis levels, affecting the
ability of courts to provide justice to Americans around the country, I
have been urging the Senate to vote on the judicial nominations
reported favorably by the Judiciary Committee and pending on the
Senate's Executive Calendar. My efforts have not yielded much success
or sense of urgency. Nor have the statements by the Chief Justice of
the United States, the Attorney General of the United States, the
Federal Bar Association and a number of Federal judges across the
country.
Those who delay or prevent the filling of these vacancies must
understand they are delaying and preventing the administration of
justice. We can pass all the bills we want to protect American
taxpayers from fraud and other crimes, but you cannot lock up criminals
or recover ill-gotten gains if you do not have judges. The mounting
backlogs of civil and criminal cases are growing larger.
I think of the first 2 years of the last President Bush's term in
office. During the 7 months that Republicans had the majority, they did
not bother to hold a hearing on President Bush's nominees. But in the
17 months that the Democrats were in charge, the Democrats held
hearings and confirmed 100 of his nominees. To their credit, in the
following 24 months, the Republicans confirmed 105.
Ah, for those days.
Our ability to make progress regarding nominations has been hampered
by the creation of what I consider to be misplaced controversy over
many nominees' records. As with the long-delayed nomination of Judge
Edward Chen, the supposed ``controversy'' that has delayed and
obstructed the nomination of Michael Simon is the result of some
Senators seeking to impose a partisan litmus test in place of our sworn
constitutional duty to offer advice and consent on nominations. That
Mr. Simon filed amicus briefs on behalf of the ACLU and several Jewish
organizations in cases involving the First Amendment, discrimination
against gay and lesbian individuals, and the rights of religious
minorities does not
[[Page S3948]]
render him unfit to be a judge. Our legal system is an adversary
system, predicated upon legal advocacy for both sides. Certainly
defending civil liberties is no vice. Since when do we impose a litmus
test for nominees that they can never have been legal advocates? If we
were to do that, we would have no judges. Almost every nominee who had
been a practicing lawyer would be disqualified by one side or the
other.
I had hoped when 11 Republican Senators joined in voting to end a
filibuster against Judge Jack McConnell of Rhode Island that the Senate
was moving away from the narrow, partisan attacks on judicial
nominations that have slowed us from making progress since President
Obama took office. Yet the successful Republican filibuster of the
nomination of Professor Goodwin Liu to the Ninth Circuit was one of the
most disappointing votes I have seen in the U.S. Senate. There were no
``extraordinary circumstances'' or justification for this partisan
filibuster of a good man and brilliant nominee.
In the wake of the filibuster, newspapers around the country decried
the Senate for denying Professor Liu the up-or-down vote that
Republican Senators argued just a few years ago every nominee was
entitled to have when there was a Republican in the White House. The
New York Times editorialized that the standard of ``extraordinary
circumstances'' for filibustering nominees ``is meaningless if senators
are going to define someone like Mr. Liu as a legal extremist.''
The editorial continued:
He is, not surprisingly, a liberal thinker who is
nonetheless squarely in the legal mainstream, having even
received the support of strong conservatives, including
Kenneth Starr and Clint Bolick.
The New York Times also described the filibuster of Professor Liu as
``payback'' making it ``harder to fill benches during this
administration and many more to come.''
The Denver Post wrote in an editorial:
The Senate filibuster last week of federal appellate court
candidate Goodwin Liu wasn't just a defeat for the president
who nominated him. It signifies the dissolution of a truce
that had been struck years earlier in which senators had
generally agreed not to hold hostage qualified judicial
candidates from the opposing political party. It is a shame
it has come to this.
The San Francisco Chronicle editorialized:
Fair-minded people who have looked at Liu's record and
determined that he has the intellect and temperament to be a
superb appellate judge include prominent conservatives
Richard Painter, chief ethics lawyer in the Bush White House,
and Whitewater prosecutor Ken Starr. But neither fair play
nor intellectual honesty carried the day in the Senate, where
Liu's nomination remained bottled up through the efforts of
multiple Republicans who had opined (in the Bush years) that
it was unconstitutional for senators to deprive a judicial
nominee of an up-or-down vote.
In an editorial entitled, ``Trashing of Court Nominees Must End,''
the Iowa City Press-Citizen wrote:
What is most disturbing about Thursday's Senate vote is not
the fact that the Senate rejected this nominee, but how it
was done: by a filibuster. In other words, the Republicans
used the Senate rules to prevent a simple up-or-down vote on
the Liu nomination.
I ask unanimous consent that copies of these editorials be printed in
the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. The question for me about Mr. Simon is the same question I
have asked about Judge Chen, Professor Liu, and every judicial nominee,
whether nominated by a Democrat or a Republican President: whether he
or she will have judicial independence. I don't care what their
politics are. I don't care what party they belong to. I don't care who
they have represented in the past. All I want to know is: Will they
have judicial independence? Do they understand the role of a judge and
how that differs from the role of an advocate?
The judge has to protect everybody in their courtroom, on both sides.
There is no question that Michael Simon is going to have judicial
independence. So I hope Senators today will set aside their partisan
litmus test and join me in supporting this fine nomination.
Exhibit 1
[From the New York Times, May 22, 2011]
Breaking Faith
``I will not vote to deny a vote to a Democratic
president's judicial nominee just because the nominee may
have views more liberal than mine.''
That was Senator Lamar Alexander, Republican of Tennessee,
promising in 2003 not to filibuster judicial nominees for
reasons of ideology. But on Thursday, Mr. Alexander, along
with 41 other Senate Republicans, voted to filibuster one of
President Obama's judicial nominees for that very reason--
breaking a promise and kindling yet another row over a
president's right to appoint like-minded judges.
The fight was over Goodwin Liu, a Berkeley law professor
nominated by the president for a seat on the Ninth Circuit
Court of Appeals. He lost on a vote of 52 to 43, short of the
60-vote requirement demanded by Republicans.
He became the first Obama nominee to be successfully
filibustered, and the only nominee since 2005. That year, a
Senate ``Gang of 14'' agreed that such nominees should be
allowed an up-or-down majority vote except in extraordinary
circumstances.
The group was correct in preserving the right to filibuster
the most extreme candidates, but the agreement is meaningless
if senators are going to define someone like Mr. Liu as a
legal extremist. He is, not surprisingly, a liberal thinker
who is nonetheless squarely in the legal mainstream, having
even received the support of strong conservatives, including
Kenneth Starr and Clint Bolick.
What, specifically, made him so extraordinary that he was
not worthy of an up-or-down vote? The Republican argument
against him is laughably thin. ``He believes the Constitution
is a fluid, evolving document,'' said Jeff Sessions of
Alabama. John Cornyn of Texas falsely accused Mr. Liu of
holding the ``ridiculous view that our Constitution somehow
guarantees a European-style welfare state.''
But other Republicans were more forthcoming about the real
reason for the blockade: Mr. Liu dared to criticize Justice
Samuel Alito Jr. as harshly conservative before he was
confirmed to the Supreme Court. The filibuster apparently was
payback, and the Republican eagerness for revenge has broken
faith and a clear understanding on the Senate floor. That
will make it harder to fill benches during this
administration and many more to come.
____
[From denverpost.com, May 28, 2011]
Editorial: So Much for the Gang of 14 Truce
The Senate filibuster last week of federal appellate court
candidate Goodwin Liu wasn't just a defeat for the president
who nominated him.
It signifies the dissolution of a truce that had been
struck years earlier in which senators had generally agreed
not to hold hostage qualified judicial candidates from the
opposing political party.
It is a shame it has come to this.
Republicans may be celebrating the defeat of President
Obama's nominee, who on Wednesday officially withdrew his
nomination to the 9th U.S. Circuit Court of Appeals; however,
it's an action that surely will come back to bite them.
Democrats are unlikely to forget. In fact, Senate Judiciary
Chairman Patrick Leahy, D-Vt., told reporters before the vote
that a Liu filibuster would mean Democrats would do the same
to the next Republican president's nominees.
It would be regrettable if that were to happen. The so-
called Gang of 14 had in 2005 joined forces to avert a
showdown on judicial candidates nominated by then-President
Bush.
Seven Republican and seven Democratic senators, cleaving to
the ``advise and consent'' role of senators as enumerated in
the U.S. Constitution, agreed not to filibuster or block
qualified judicial candidates unless ``extraordinary
circumstances'' were in play.
There was, at the time, little consensus as to what
constituted ``extraordinary circumstances'' and assuredly
even less agreement now.
At the time of the compromise, which then-Sen. Ken Salazar
of Colorado took part in crafting, several senators said they
would know extraordinary circumstances when they saw them.
The Republican filibuster of Liu, a University of
California-Berkeley law professor, will set precedents as to
how extraordinary circumstances will be defined. (Colorado's
U.S. Sens. Michael Bennet and Mark Udall, both Democrats,
voted against a filibuster.)
Extraordinary circumstances, it seems, will come to mean a
candidate who holds views that are ideologically repugnant.
That is a dangerous standard.
Liu is a liberal and far more so than other prominent
judicial nominees President Obama has sent to the Senate for
confirmation.
We aren't crazy about some of Liu's positions either, but
he is qualified for the job. The American Bar Association,
which independently evaluates judicial nominees, gave him
their highest ranking: unanimously well-qualified.
We have long favored an up-or-down vote on judicial
candidates, and this is no exception. Elections have
consequences, and those
[[Page S3949]]
include the president getting to choose judicial candidates,
even if they are controversial.
A return to the so-called judge wars in an effort to block
the president's power to fill vacancies on the federal bench
ultimately will serve neither party.
____
[From SFGate.com, May 20, 2011]
Shame on GOP Senators Who Blocked Goodwin Liu
Senate Republicans, dripping with partisanship and
hypocrisy, blocked an up-or-down vote Thursday on the
nomination of UC Berkeley law Professor Goodwin Liu to the
Ninth U.S. Circuit Court of Appeals in San Francisco.
Their argument that Liu is a leftist ideologue does not
hold up to scrutiny. Instead, the continuing filibuster of
Liu's nomination carries the distinct scent of political
retribution.
Fair-minded people who have looked at Liu's record and
determined that he has the intellect and temperament to be a
superb appellate judge include prominent conservatives
Richard Painter, chief ethics lawyer in the Bush White House,
and Whitewater prosecutor Ken Starr.
But neither fair play nor intellectual honesty carried the
day in the Senate, where Liu's nomination remained bottled up
through the efforts of multiple Republicans who had opined
(in the Bush years) that it was unconstitutional for senators
to deprive a judicial nominee of an up-or-down vote. The
obstructionists included Sens. John McCain, R-Ariz., and
Lindsey Graham, R-S.C., who were among a group of 14 senators
who had pledged that they would filibuster a nominee only in
``extraordinary circumstances.''
Both McCain and Graham suggested, unconvincingly, that Liu
was sufficiently out of the mainstream to merit such extreme
action. Graham specifically mentioned Liu's ``outrageous
attack'' on Samuel Alito during his Supreme Court
confirmation hearings in 2006. But, again, on closer
inspection, Liu's point-by-point dissection of Alito's record
was meticulously documented with facts.
Another undercurrent at play is a GOP fear that the 40-
year-old Liu, with his sharp intellect and appealing manner,
might be a candidate to become the first Asian American on
the Supreme Court. The gamesmanship against this well-
qualified nominee is a disgrace to the Senate and a
disservice to the judiciary.
____
[From Press--citizen.com, May 23, 2011]
Trashing of Court Nominees Must End
The judicial confirmation wars just got a fresh supply of
ammunition. The U.S. Senate on Thursday failed to muster the
votes needed to move forward on the confirmation of a nominee
for a federal judgeship.
That almost certainly ended the Obama administration's two-
year struggle to win confirmation for Goodwin Liu to the 9th
Circuit U.S. Court of Appeals.
The rejection also shattered any hope that partisan battles
over confirmations might finally end. Democrats outraged over
this loss will no doubt remember this and look for an
opportunity for payback. This has been the story since 1987,
when Senate Democrats led the effort to defeat Robert Bork,
Ronald Reagan's nominee to the U.S. Supreme Court. Since
then, both parties have been guilty of trashing the potential
judicial careers of clearly fit nominees: Republicans
skewering Democratic presidents' nominees; Democrats
returning the favor for Republican presidents.
Sadly, Sen. Chuck Grassley, R-LA, played a role in
defeating the Liu nomination. This is especially
disappointing since, as the ranking Republican on the Senate
Judiciary Committee--which vets judicial nominees--Grassley
could have helped set a new tone on confirmations. He has
done just the opposite.
Grassley has consistently opposed Liu's confirmation
because, he has said, the professor and associate dean at the
University of California-Berkley Law School is has made
numerous controversial statements in his writings and
speeches that express an ``activist judicial philosophy'' and
because has no prior judicial experience. In a prepared
statement, Grassley said ``Liu holds a view of the
Constitution that can only be described as an activist
judicial philosophy'' and if appointed to the court, ``he
will bring a personal agenda and political ideology into the
courtroom.''
That is one opinion, and Grassley is certainly entitled to
it. Others--including several conservative Republican
lawyers, including former Whitewater prosecutor Kenneth Starr
and two former lawyers in the Bush administration--disagree.
Liu was given a unanimous ``well qualified'' endorsement from
the American Bar Association, and his resume bristles with
sterling academic and professional credentials. Liu would
have been the first Asian-American judge on the 9th Circuit
Court.
What is most disturbing about Thursday's Senate vote is not
the fact that the Senate rejected this nominee, but how it
was done: by a filibuster. In other words, the Republicans
used the Senate rules to prevent a simple up-or-down vote on
the Liu nomination. The effort to end the filibuster fell
eight votes short of the 60 needed. But had the 52 senators
who voted for cloture voted for confirmation, Liu would be
headed for the bench.
This is the very same tactic Republicans (including
Grassley) rightly condemned when Democrats filibustered to
block Republican nominees. They said that all presidential
nominees deserve an up-or-down vote, and they were right
then.
How soon they forget.
Alas, Democrats who are outraged by Thursday's move will
not forget, and this mindless back-and-forth battle over
judges will continue, probably forever. It is a sad day for
the courts, for bipartisanship in the Senate and for the
nation.
Mr. GRASSLEY. Today, the Senate will consider the nomination of
Michael Simon, nominated to be a U.S. district judge for the District
of Oregon. This nominee was reported out of Judiciary Committee with
four votes in opposition. I am one of those who opposed the nominee and
would like to detail my reasons for doing so.
Mr. Simon received his B.A. summa cum laude from the University of
California, Los Angeles, in 1978, and J.D. cum laude from Harvard Law
School in 1981. He began his legal career as a trial attorney with the
Antitrust Division of the Justice Department.
In 1985, he spent 6 months as special assistant U.S. attorney for the
Eastern District of Virginia and argued one appeal before the Fourth
Circuit. Mr. Simon joined a large law firm as an associate in 1986.
Since 1990, he has been a partner and the head of litigation for the
firm's Portland office.
Throughout his career, Mr. Simon has advocated on behalf of the
American Civil Liberties Union of Oregon as a pro bono attorney. But
his involvement in the ACLU goes beyond mere representation of a
client. Mr. Simon has been a member of the ACLU of Oregon since 1986.
He is an active member of their Lawyers' Committee and served as a
board member from 1997 to the year 2004, the vice president for
legislation 1997 to 1998, and vice president for litigation from 2000
to 2004.
I recognize that judicial nominees should not be evaluated solely on
client lists or memberships, that would be very unfair. However, these
are relevant bits of information about a nominee.
Listen to the words of one of my Democratic colleagues, who inferred
that the ACLU is beyond a moderate and mainstream approach. This was
stated during the debate on judges nominated by President Bush:
If you look at the records of these judges and you put
scales, left to right, 10 being the most liberal and 1 being
the most conservative, these judges are ``ones'', to be
charitable. When Bill Clinton nominated judges, he nominated
mainly sixes and sevens, people who tended to be a little
more liberal, but were moderate and mainstream--very few
legal aid lawyers or ACLU charter members, much more
prosecutors and partners in law firms.
My colleague recognized that ACLU lawyers were beyond moderate and
mainstream. I would complete his analysis and rank this organization as
very liberal.
In Mr. Simon's case, there has been concern about whether or not he
shares the far out views of the ACUL. On this question, Mr. Simon
refuses to provide a clear answer. At his hearing he stated that ``we
do not necessarily agree with all of the positions taken by the
American Civil Liberties Union.'' When asked in follow-up questions to
describe the legal or policy position with which he disagrees, he
argued that his advice to the ACLU was confidential and subject to the
attorney-client privilege. In a second round of questions, committee
members clarified they were not asking about advice to a client, but
policy positions with which he disagreed. This was met with ``I am not
at liberty to describe the legal or policy positions advocated by the
ACLU with which I disagree.''
The ACLU does hold very liberal views, and Mr. Simon has been the
voice for those views. For example, Mr. Simon wrote a letter to the
Tillamook County Courthouse in Oregon expressing the ACLU's concern
with religious Christmas signs and decorations. The letter encouraged
the county to repeal its resolution that deemed the county a ``Merry
Christmas County.''
On issue after issue, Mr. Simon refused to disassociate himself from
legal and policy positions held by the ACLU, that are far outside the
mainstream. This includes the legalization of drugs, the
unconstitutionality of the death penalty, the unconstitutionality of
the Pledge of Allegiance, the ACLU's opposition to tax exemptions for
churches and extreme views regarding separation of church and state.
[[Page S3950]]
Mr. Simon's views on the war on terrorism and a liberal view on civil
liberties are troubling to me. In a speech in 2007, Mr. Simon argued
that Americans' civil liberties have been threatened because of
measures undertaken following 9/11. In his speech, he said that ``our
thinking would be clearer and our solutions more effective if we stop
thinking about--and stop calling--terrorism a `war' or a `crime,' ''
and argued that calling military action against terrorism a ``war''
``implies that a military conquest is the best tool for this fight''
and that terminology ``may limit more creative and even more successful
techniques to promote and protect our security.''
Perhaps Mr. Simon agrees with the Attorney General who, in a recent
speech, asserted that ``our most effective terror-fighting weapon'' is
our article III [civil] court system. I certainly disagree with that
assertion, and I think most national security experts, our military,
and most Americans would disagree as well.
Mr. Simon appears to approach constitutional theory with an activist
slant. In remarks before a conference sponsored by the Oregon Lawyers
Chapter of the American Constitution Society on May 23, 2007, Mr. Simon
stated:
There is also support for the conclusion that the Founders
did not believe that their intentions and understanding
should bind future generations. That may be the only real
`original intent' of the Founders.
That quotation makes me wonder, if the Constitution wasn't going to
have any hold on future generations, why did the drafters spend so much
time during that summer of 1787--and even longer periods of time--
getting the Constitution adopted. That seems to be the implication of
what he says there.
It is no surprise, then, that Mr. Simon has a hostile view of
religion in the public square. He continued in those remarks, ``There
is also support for the proposition that the concept of `separation of
church and state' was an `unfolding and evolving' idea at the time of
the Founders. . . .''
Mr. Simon appears to demand an absolute wall of separation between
church and state, as opposed to the U.S. Government promoting a
specific religion. He has argued against religious displays on public
land, against religious visitors to schools, against a coach praying
with his football players. I assume that means even if you're praying
that they don't get injured. Mr. Simon has argued that it is
unconstitutional under the establishment clause to teach intelligent
design in public school science classes.
Based on his views regarding the war on terror, his activist approach
to constitutional interpretation, his hostility to religion in the
public square, and his remarks and advocacy of ideas which indicate a
legal view that is outside the mainstream, I will oppose this
nomination. I ask my colleagues to do likewise.
Mr. LEAHY. Mr. President, I see my two friends--the two outstanding
and distinguished Senators from the State of Oregon--and I yield the
floor to them.
The PRESIDING OFFICER. The junior Senator from Oregon.
Mr. MERKLEY. Mr. President, I thank the chairman of the Judiciary
Committee for his comments and perspective on judicial independence. It
is extremely important in having a court system that can both be
effective and reflect the faith of the citizens of this Nation that
they have a system of true justice.
I rise in support of the nomination of Michael Simon to the post of
U.S. District Judge for the District Court of Oregon. Quite simply,
Michael Simon is a man of enormous integrity, intellectual breadth and
depth, and good old-fashioned common sense and decency. Michael Simon
has earned a reputation as a top lawyer in commercial litigation,
appellate law, and constitutional law. He is respected nationally. He
is eminently qualified for this seat.
After graduating summa cum laude from UCLA, he attended Harvard Law
School, where he graduated cum laude. He began his legal career in the
Department of Justice's antitrust division, where he served as a trial
attorney for 5 years. During this time, he also volunteered for and
served as a special assistant U.S. Attorney for the Eastern District of
Virginia.
Mr. Simon is currently a partner at Perkins Coie in Portland, where
he has worked since 1986 and earned a reputation as one of the
Northwest's real legal stars. He has engaged in extensive pro bono work
and has volunteered for many nonprofit organizations. He has served as
an adjunct faculty member at Lewis & Clark Law School, teaching
antitrust law, drawing on his earlier life experience. He has also
served as a pro tem judge on the Multnomah County Circuit Court.
In the courts, Michael has made his name as a staunch defender of
consumer protection, antitrust laws, and the first amendment. He has
found the time to be deeply involved in his community, displaying a
commitment to voluntarism, civic participation, and public service.
For years, Michael has been a leader of the Classroom Law Project, a
nonprofit that prepares youths to become active, engaged and informed
participants in our democratic society. Serving as president, and then
as a board member, he has helped bring a love of civics and democracy
to thousands of public school students across Oregon.
In addition to his service in government and civic organizations, Mr.
Simon has been an active member of the Jewish community in Portland. He
is a familiar and beloved face at his temple, Beth Israel, and has
served on the boards of the American Jewish Committee and the Jewish
Federation of Greater Portland.
In short, Michael Simon exemplifies the traits that every Federal
district judge should possess--a brilliant legal mind and a heart
dedicated to service, fairness, and community.
The U.S. District Court of Oregon has historically had a reputation
as a place of efficient and fair courts led by outstanding professional
jurists. I know Michael Simon will uphold this tradition. He will be an
outstanding judge who will continue the district's tradition of
fairness and commitment to public service, and he will fill a critical
vacancy in this district.
Michael Simon is an excellent nominee, and I urge all my colleagues
to reflect on his record and his capacity in multiple dimensions
throughout his life that brings a seasoned judgment and the
independence of mind to the judicial system. I urge my colleagues to
support his nomination.
I thank the Chair.
The PRESIDING OFFICER. The senior Senator from Oregon.
Mr. WYDEN. Mr. President, Senator Merkley has said it very well this
morning. I had a chance to speak about Michael Simon yesterday, and I
want to make a few additional remarks this morning.
After the retirement of Senator Hatfield, whom we all know is still
beloved by many here in the Senate, I have had a chance to work with
our former colleague Senator Gordon Smith and now with Senator Merkley
to send to both Republican and Democratic Presidents some outstanding
men and women for their consideration for the District Court in Oregon.
Today, Senator Merkley and I send to the Senate for its consideration
another outstanding individual--someone who is going to take his place
with the other leaders who have been named to the district court of
Oregon.
Michael Simon is one of those persons who, when you look at what kind
of jurist you want to have, meets all the essential tests. He is a
thoughtful man, he is a fair man, and he is an individual who always
wants to have all the facts in front of him before he makes a reasoned
judgment. When I look at his background--and Senator Merkley has laid
out several of the areas that were special and that we are especially
proud of, his work in the private sector at Perkins Coie--I come
particularly to his work in consumer protection and the antitrust
field, because it highlights the kind of person Michael Simon is.
He made one of his most notable contributions to strengthening
consumer protection law working on behalf of the Department of Justice
on the case of the United States v. American Airlines, and he
successfully argued then for extending the reach of the Sherman Act to
include monopolization and attempted monopolization.
This is not a partisan issue. This is the kind of issue that helps
all Americans--all Americans, regardless of their political philosophy
or party they belong--to benefit from the fruits of a more competitive
American marketplace.
[[Page S3951]]
Michael Simon's work in that area benefits each and every one of us
every single day.
Second, as I talked about yesterday, and Senator Merkley has
described eloquently this morning, we are very proud of Michael Simon's
championing work as a volunteer. I can tell you, that it seems as
though virtually every good cause that comes across my desk at home
seems to have Michael Simon's name on it urging that Oregonians
participate and volunteer their time.
We are especially proud of his work on behalf of children. His work
with the Classroom Law Project, his work at the Waverly Children's
Home, where he was past head of the board of directors, these kinds of
positions are ones where you make a difference. These kinds of
positions give Mr. Simon a chance to teach not just right and wrong to
young people but a chance to give them the kind of background about the
rule of law and the rights and responsibilities we want to instill in
our children. That is why we are very proud to bring to the attention
of the Senate his work with Oregon's youngsters.
Finally, I want to stress the immediacy of the need for the Senate to
confirm Michael Simon today. This seat has been vacant for 664 days. It
is just 1 of 36 judicial emergencies. As it stands, there are nearly 90
Federal court vacancies, some of which have been empty for more than 3
years. Judicial emergencies are not just some sort of Washington phrase
to throw around on the floor of the Senate. They are actually an
emergency defined by the Chief Justice of the United States, John
Roberts. And to earn this designation, filings must exceed 600 per
judge in district courts and 700 per judge in circuit courts.
Justice delayed is justice denied. Until the Senate begins to move
expeditiously to fill these vacancies, justice will continue to be
denied to thousands of Americans who deserve due process.
Both Senator Merkley and I are very grateful to Senator Leahy and
Senator Grassley, the majority leader Senator Reid, and the minority
leader Mr. McConnell for their work to bring this nomination to the
floor.
I hope colleagues who have questions about Michael Simon will come to
Senator Merkley and myself. We will stay on the floor and be available
to colleagues to answer any questions.
But this is a good and decent man who possesses all of the requisite
qualities we would like in a jurist, whether it is his work in the
private sector, whether it is his pioneering work in the field of
extending the reach of the Sherman Act to deal with monopolies. This is
a person who will reflect great credit on the District Court of Oregon
and on the legal system of our country.
I hope all our colleagues will support Michael Simon today.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Panetta Nomination
Mr. CHAMBLISS. Mr. President, I rise to support the nomination of
Leon Panetta to be the 23rd Secretary of Defense. Director Panetta has
a long history of government and private sector service and experience,
including service in the U.S. Army.
Director Panetta served ably for eight terms as a member of the U.S.
House of Representatives, rising to be chairman of the House Budget
Committee. He left that position to be President Clinton's Director of
the Office of Management and Budget and later served 2\1/2\ years as
President Clinton's Chief of Staff, which is where I got to know him
well. He then spent 10 years codirecting a foundation with his wife
that seeks to instill in young men and women the virtues and values of
public service. Knowing Director Panetta, this comes as no surprise. In
February 2009, he became the 19th Director of the Central Intelligence
Agency, and it is in this capacity where I have had the opportunity to
work very closely with him over the last several years and consider him
a close friend.
Director Panetta has been an outstanding leader of the Central
Intelligence Agency, and it is bittersweet to see him leave. Director
Panetta is a true leader in every sense of the word. He understands how
Capitol Hill works since he served in Congress for 16 years. He has
always shown the Senate Select Committee on Intelligence, which is the
committee that oversees his organization, the right kind of deference
and responded to our questions and concerns promptly and directly.
Although he leaves the CIA, he is not leaving the administration and
I am quite pleased that I will continue to have the opportunity to work
with him as Secretary of Defense. I think he has the right
qualifications for his new job. He understands budgets, and in this
time of economic austerity we need someone with that knowledge and his
ability to understand and manage the resources of a huge organization
such as the Department of Defense.
In his current capacity as Director of the CIA, he has also worked
and built strong partnerships with the Department of Defense, having
been involved in the planning and execution of numerous joint
operations, including of course the most recent operation against Osama
bin Laden. He will continue this strong partnership in his new
position, and I know he will continue to ensure that these two
organizations work closely together and cooperate successfully in the
interest of our national security and for the safety of our country.
Director Panetta has a very challenging job ahead of him. The United
States is involved in three major military operations overseas, as well
as countless smaller ones. Budgets are extremely tight, and they are
only going to get tighter. However, no country has the global interests
and global responsibilities that the United States has, and for that
reason we need a military that can protect those interests and carry
out those responsibilities. Director Panetta will need to decide how we
do that and will also help decide what, if anything, the United States
can and needs to stop doing.
He will also need to take responsibility for shaping our military to
be prepared for the future. For the last decade, our military has
necessarily been focused on fighting and winning the conflicts we are
in; namely, Iraq and Afghanistan. We continue to meet that challenge,
and I am very optimistic that we, with the Afghan people, will prevail
against insurgents in Afghanistan, just as we prevailed with the Iraqi
people against insurgents in Iraq. However, we can't take our eyes off
the future. As a nation, we have a very poor record of predicting where
our next conflict will come from.
I have heard it said that when Secretary McNamara had his
confirmation hearing to be Secretary of Defense in 1961, no one asked
him a question about a country called Vietnam. And when Secretary
Rumsfeld had his confirmation hearing in 2001, no one asked him about
Afghanistan. But, in both cases, those were the issues that would
dominate their tenure as Secretary of Defense.
If I might say, Director Panetta, if a new global hot spot dominates
your tenure as Secretary of Defense, there is a good chance that it
will be one that no one asked you about at your confirmation hearing.
For this reason, our Armed Forces need to be prepared to fight
conflicts that are unlike our current ones. We cannot, and should not,
assume that the next war will be like the current one. We need to be
prepared for both high-end and low-end conflict. We need to be prepared
not just so that we can fight and win these conflicts but so we can
deter potential adversaries and not have to fight in the first place.
I know Leon Panetta realizes that, and I know he will continue to be
committed to ensuring our military is as prepared as possible to meet
whatever challenges may come our country's way. That will not be easy,
and it will take a man of his ability to do this successfully and in a
way that takes into account our current fiscal situation. However, I
believe the President has chosen the right man for the job.
I support Leon Panetta's nomination to be the next Secretary of
Defense, and I encourage my colleagues to support that nomination as
well.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, let me first say I thought the statement
from the distinguished Senator from Georgia was spot on, and I
particularly appreciated his point that when we confirm Leon Panetta to
head Defense, no one can possibly predict what kind of challenges he
will face there. But this is the kind of person who, because of ability
and background, is up to any kind
[[Page S3952]]
of challenges that are thrown to him. So I want to associate myself
with my colleague from Georgia.
Mr. President, I would suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WYDEN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. Mr. President, I ask unanimous consent to yield back the
remainder of the time and I ask for the yeas and nays.
The PRESIDING OFFICER. Without objection, it is so ordered.
Is there a sufficient second? There appears to be a sufficient
second.
The question is, Will the Senate advise and consent to the nomination
of Michael H. Simon, of Oregon, to be United States District Judge for
the District of Oregon? On this question, the yeas and nays have been
ordered, and the clerk will call the roll.
The bill clerk called the roll.
Mr. KYL. The following Senator is necessarily absent: the Senator
from New Hampshire (Ms. Ayotte).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 64, nays 35, as follows:
[Rollcall Vote No. 92 Ex.]
YEAS--64
Akaka
Alexander
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Coons
Cornyn
Durbin
Feinstein
Franken
Gillibrand
Graham
Hagan
Harkin
Inouye
Johnson (SD)
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--35
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Corker
Crapo
DeMint
Enzi
Grassley
Hatch
Heller
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Lee
McConnell
Moran
Paul
Portman
Risch
Roberts
Rubio
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NOT VOTING--1
Ayotte
The nomination was confirmed.
____________________