[Congressional Record Volume 157, Number 153 (Thursday, October 13, 2011)]
[Senate]
[Pages S6489-S6494]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
The Economy
Mr. DURBIN. Mr. President, the events of this week are an indication
that much needs to be done in Washington to deal with the state of our
economy. With 14 million Americans out of work, it is high time that
both political parties find a way to develop a plan to move this
country forward and to create jobs.
When the President spoke to Congress a little over 4 years ago, he
laid out at least the foundation of a plan and later provided the
details. But time and again, President Obama has said to the Republican
leadership: I am open to your ideas. Bring them forward. Let's put them
in a combined effort to make America a stronger nation and to find our
way out of this recession.
Unfortunately, we have not heard suggestions from the other side. We
had an important vote Tuesday night. Sadly, the Republican filibuster
prevailed. Republicans, because they did not want to move the
President's bill to consideration on the floor of the Senate, voted--
every single one of them--against President Obama's efforts to put
America back to work. I do not think that is going to be a position
which is easily defended back home. Whether one agrees or disagrees
with President Obama, the American people expect Democrats and
Republicans to enter a dialog to help this country. We have to give on
the Democratic side, and they should be prepared to give on the
Republican side, and let's try to find some common ground. There are
too many instances where we fight to a face-off and then leave.
The suggestion that yesterday's efforts to pass three free-trade
agreements with South Korea, Panama, and Colombia are going to turn the
economy around, I am not sure of being close to accurate. I supported
two of those trade agreements, and I think they will help create jobs
and business opportunities in America in the longer run but in the near
term not likely so.
What we need to do is to work on what has been proven to be
successful to move this economy forward. Let's start with the basics.
Working families struggle from paycheck to paycheck. Many families do
not have enough money to get by. They are using food pantries and other
help to survive in this very tough economy. So President Obama said the
first thing we need to do is to give a payroll tax cut to working
families so they have more money to meet their needs. What it boils
down to in Illinois, where the average income is about $53,000 a year,
is the equivalent of about $1,600 a year in tax cuts for working
families. That is about $130 a month, which many Senators may not
notice but people who are struggling to fill the gas tank and put the
kids in school can use $130 a month.
The President thinks that is an important part of getting America
back on its feet and back to work, and I support it. That was one of
the elements that was stopped by the Republican filibuster on Tuesday
night.
The second proposal of the President is that we give tax breaks to
businesses, particularly small businesses, to create an incentive for
them to hire the unemployed, starting with our returning veterans. It
is an embarrassment to think these men and women went overseas and
risked their lives fighting an enemy and now have to come home and
fight for a job. We ought to be standing by them, helping them to get
to work, and that is one of the elements in the President's bill that
was also defeated by the Republican filibuster on Tuesday night.
The President went on to say we ought to be investing our money in
America. If we put people to work, let's build something that has long-
term value. One of those he suggested was school modernization. I
visited some schools around my State, and I am sure in the State of
Colorado and other places there are plenty of school districts
struggling because the tax base has been eroded by declining real
estate values and these districts need a helping hand. When I went to
Martin Grove and visited a middle school there, I found great teachers
doing the best they could in classrooms where the tiles were falling
from the ceiling and where the boiler room should be labeled an antique
shop because it was a 50- or 60-year-old operation that was kept
together with $150,000 of repairs each year. We ought to buy new
equipment and install it in American schools so they can serve us for
many years to come.
The same holds true in investing in our infrastructure, whether it is
highways, bridges or airports. Make no mistake, our competitors around
the world are building their infrastructure to beat the United States,
and those who want us to retreat in this battle are going to be
saddened by the consequences if they have their way. President Obama
said invest this money in putting Americans to work to build our
infrastructure, rebuild our schools, build our neighborhoods in a way
that serves us for years to come.
The President is also sensitive to the fact that in many parts of
America, including Illinois, there are school districts and towns that
have had to lay off teachers and firefighters and policemen. It doesn't
make us any safer, and it doesn't make our schools any more effective.
Part of the President's jobs package is to make sure, for those
teachers as well as policemen and firefighters, at least some of their
jobs will be saved. In Illinois, over 14,000 of those jobs will be
saved by the President's bill.
What really brings this bill to a screeching halt in the debate is
the fact the President said we should pay for this. Let's come up with
the money that is going to pay for the things I just described. And his
proposal is a simple one. It says those who make over $1 million a year
will pay a surtax of 5.6 percent--over $1 million a year in income.
That is over $20,000 a week in income. These folks would pay a 5.6-
percent surtax, and that surtax would pay for the jobs bill.
[[Page S6490]]
If the jobs bill works, and I believe it will, I guarantee a thriving
American economy will be to the benefit of those same wealthy people.
So asking them to sacrifice a little in this surtax is not too much to
ask.
Unfortunately, although some 59 percent of Republicans support this
millionaires' surtax, not one of them serves in the Senate. We need to
have a bipartisan effort to make sure this is paid for in a reasonable
way. The alternative we have heard from the other side that mounted
this filibuster against President Obama's jobs bill is, we ought to
return to the old way of doing things: tax cuts for wealthy people--not
new burdens but tax cuts for wealthy people.
They argue the people who make over $1 million a year are the job
creators. That is a phrase they use, ``job creators.'' A survey came
out yesterday from the Government Accountability Office, and what it
said was 1 percent of those making over $1 million a year actually own
small businesses. Most of them are investors. Although there is, I am
sure, a worthy calling in being an investor, they are not the job
creators they are described to be.
So I say to my friends on the other side of the aisle, this notion of
protecting those making over $1 million a year at the expense of a jobs
program to move America forward is backwards. We have to come together,
and I hope we can start as early as next week. We have to find
provisions in this jobs bill we can agree on.
I hope the Republicans would agree we should modernize our schools
and build our infrastructure in this country. I hope they agree we
should not shortchange our schools and our communities when they need
teachers and policemen and firefighters. I hope they would agree that
it is a national priority to put our returning veterans to work. I
certainly think that should be a bipartisan issue.
But the filibuster this week that stopped the President's jobs bill
has stopped the discussion. The trade bills yesterday will not make up
the difference. We have to focus on putting Americans to work with
good-paying jobs right here in our Nation, creating new consumer demand
for goods and services which will help businesses at every single
level. The President has put his proposal forward and has challenged
our friends on the other side of the aisle to step up and put their
proposals forward.
My suspicion is that most people in America would be delighted to see
a breakthrough in Washington, DC, where Democrats and Republicans
actually sat down at the same table and tried to work out a plan to put
America back to work. We can do this. In order to do it we have to give
on both sides. We have to forget about the election that is going to
occur in November 2012 and focus on the state of America's economy
right now in October 2011. If we put aside the campaign considerations
and focus on the economy, I think we can get a lot done. I trust that
there are some on the other side of the aisle who feel the same way. I
hope they will break from their leadership on their filibuster and join
us in this effort.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Blumenthal). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I wish to speak for a few moments on the
nomination of Alison Nathan to be the United States District Court
Judge for the Southern District of New York. This is a highly important
position. It is one of the more prestigious courts in the country that
handles the Nation's most complex cases. It is my observation, having
practiced for over 15 years full time trying cases before Federal
judges, that this position is of extreme importance and you need good
judgment, good experience, good integrity, proven stability before you
give a person a lifetime appointment to such a position. It is an
important matter.
I overwhelmingly vote for the nominees of the President. I believe in
giving the President deference in those nominations. However, I do
believe we need to hold Presidents accountable and to scrutinize the
nominations in a fair way and not hesitate to push back and say no if a
nominee does not meet those requirements that are necessary to be a
good judge.
I believe Ms. Nathan is one of a number of President Obama's nominees
who believes that American judges should look to foreign law in
deciding cases. She has other indications that suggest she is not
committed in a deep and understanding way to the oath Federal judges
take. That oath is that you serve under the Constitution and under the
laws of the United States. That is so simple and so basic that it goes
almost without saying, but it is a part of the historic oath judges
take. I believe that oath and commitment to serving under the U.S.
Constitution, under the U.S. laws, is critical to the entire foundation
of the American rule of law. It is so magnificent. We have the greatest
legal system in the world. By and large our Federal judges are
excellent and it is a strength both for liberty and civil rights and
economic prosperity that we maintain a judiciary at a high level.
One of the things that causes me concern--there are several, but this
one I will mention--is her belief that American judges should look to
foreign law in deciding cases. This is not a little bitty matter. It is
a matter of real national import. It offends people. Some people,
nonlawyers, get offended. They think they should not do that. They are
right, but just because people are upset about it and get angry about
it doesn't mean it is not a deep, legitimate concern and can be a
disqualifying factor as to whether a person should be on the bench.
What law do they follow? The U.S. law or foreign law?
In a book chapter published less than 2 years ago, Ms. Nathan
suggested that the cases leading up to the Supreme Court case of Roper
v. Simmons, which was a death penalty case, showed legal progress. In
Roper the Court held it is unconstitutional to impose a death penalty
even for the most heinous crime if the defendant is under the age of 18
years.
As a matter of policy, I am not sure we should be executing people
under 18, although a lot of people think that certain crimes are so bad
they ought to be executed. We can disagree. That is a political
decision. The question is, does the Constitution prohibit that? I
suggest it does not. But if it does, it ought to be interpreted in
light of its own words and the laws of the United States, its own
import of the Constitution of the United States. Ms. Nathan seemed to
commend the decision, however, on a different basis in her chapter. She
commended it for ``elaborating upon relevant international and foreign
law sources and defending the relevance of the Court's consideration of
those sources.''
When describing Justice Kennedy's change of opinion on the issue--he
reversed himself--she said it was ``a change that can be attributed to
the international human rights advocacy and scholarship that had taken
place outside the courtroom walls.''
She also praised the Roper attorneys for their ``strategic and savvy
reference to international norms in litigating the case.''
She asserted that the strategy's ``effectiveness holds promise and
lessons for future advancement of international law.''
She went further and suggested the reason the Supreme Court does not
look to foreign law more often is because the Justices simply do not
understand international law arguments--she has been practicing law
about 10 years, or 9 at the time she wrote this, so she knows more
about the issues related to international law than the Justices who
have been on the bench for decades, many of them constitutional
professors--rather than demonstrating a knowledge that the judge must
serve under the U.S. Constitution and U.S. law and recognizing that
foreign law has no place in deciding what our Constitution means.
She stated:
As these trends [in international law] continue, surely the
Court will increase its understanding and
`internationalization' of international human rights law
arguments.
She then concluded:
The presence of the Chinese judicial delegation at the
Supreme Court on the day of
[[Page S6491]]
the Roper arguments wonderfully symbolized the rich dialogue
between international and constitutional norms.
So what she is calling for there is a dialog, presumably between
international law and constitutional norms--pretty plain in her
writing--not just an off-the-cuff comment but in a serious book
expressing her philosophy and approach to law.
I am troubled by that. I believe judges have to be bound by the law
and the Constitution. They are not free to impose their view. Justice
Scalia and others have criticized--devastated--this international law
argument. In my view, the debate that has gone forward in circles
including the academy and law schools has clearly been a victory for
the people who understand it is our Constitution that governs. We
didn't adopt the laws of China, if they were ever enforced, which they
are not except by the government when it suits them. We didn't adopt
laws in France. We didn't adopt laws in Italy or Brazil or Yugoslavia.
That is not what binds us. That is not what judges serve under. They
serve under our law.
I think it is a dangerous philosophy. It strikes at the heart of what
the Anglo-American rule of law is all about--that law is adopted by the
people of the United States and that is the law judges must enforce--
laws passed by the people of the United States.
Reliance on foreign law, I believe, has been shown to be nothing more
than a tool that activist judges who seek to reach outcomes they desire
utilize. It is a way to get out from under the meaning of U.S. law. Why
else would one cite it? If they cannot find a basis for their decisions
in American law and legal tradition, they look to the laws and norms of
foreign countries to justify their decisions. As Justice Scalia aptly
described it--and he has hammered this theory--courts employing foreign
law, including his own court--the U.S. Supreme Court--are merely
``look[ing] over the heads of the crowd and pick[ing] out its
friends.''
What did he mean by that? He means the law, the foundation principles
of deciding cases. If they don't like what they find in the United
States, they look out over their heads and they find somebody in Italy
or Spain or China or wherever, and they say: We need to interpret our
law in light of what they do in Germany. How bogus is that as an
intellectual legal argument?
Judges who engage in this type of activism violate their judicial
oath, I believe. The oath is to serve under our Constitution, our laws.
It requires judges to evaluate cases in that fashion--not the laws of
other countries. Other countries don't have the same legal heritage we
have. They don't value the same liberties and the same fundamental
freedoms that are enshrined in our Constitution. The decisions of
foreign courts have absolutely no bearing on a decision of a judge in a
U.S. court, and nominees who disagree with that fundamentally can
disqualify themselves from the bench.
It is very hard for me to believe I should vote to confirm a nominee
who is not committed to following our law, who believes they have a
right to scrutinize the world, find some law in some other country and
bring it home and use that law so they can achieve a result they wanted
in the case.
There are a number of other concerns I have with Ms. Nathan's record,
not the least of which are her views on an individual's right to bear
arms. We have a constitutional amendment on the right to keep and bear
arms. The right to keep and bear arms should not be abridged. That is
an odd thing, compared to France or Germany or Red China. But it is our
law and we expect judges to follow it whether they like it or not. That
is what our Constitution says.
Suffice it to say, I believe her record evidences an activist
viewpoint. Perhaps if she had more legal experience, she would have a
better understanding of the role of a judge. She only just became a
lawyer in 2000--11 years ago--and has had limited time in a courtroom.
Evidently, the American Bar Association recognizes this. The ABA
gives ratings to judges, and a minority of the members of that
committee--not the majority but a minority--rate her ``not qualified.''
Frankly, they are a pretty liberal group, so I don't know if it is so
much her views on some of these issues, but probably an actual
evaluation of the kind of experience and background she brings and
whether she would be qualified to sit on an important Federal district
court--the Southern District of New York, one of the premier trial
benches in the world, and even in America--and I think it is a matter
we should consider.
This is a very serious shortcoming for a number of reasons.
Litigating in court is valuable experience. It provides insights to
someone who would be a judge. It helps make them a better judge if they
have had that experience. It gives them a strong understanding that
words have meaning and consequences. When we see people get prosecuted
for perjury or we see million-dollar contracts decided this way or that
way based on the plain meaning of words, we learn to respect words.
Some of these people out of law schools, with their activist
philosophy, seem to think a judge has a right to allow their empathy
and their feelings to intervene and decide cases based on something
other than the words of the contract or the words of the Constitution.
It is a threat to American law. Indeed, it is what President Obama has
said a number of times. He believes judges should allow their empathy
to help them decide cases.
What is empathy? It is their personal views. Whom do we have empathy
for? It depends on whom one likes before they come on the bench. So
they are deciding cases based on factors other than the objective facts
of the case. I believe the practice of law is a real legal testing
ground, in which people can prove their judgment integrity over time.
It also provides a maturing experience, where a person learns the
import of decisions in how cases turn out and how it impacts their
clients.
Let me just say that seasoned lawyers develop reputations. When we
have seen them in court many times and they have had experience there,
people know if they have good judgment. People know if they are solid.
We know they are men and women of integrity. They have that opportunity
to establish a reputation. Both the short period of time that Ms.
Nathan has spent actually practicing law and some of the troubling
positions she has taken over the years justifiably raise serious
questions about her understanding of the role of a judge in our system.
Finally, I would note that Concerned Women For America, the Family
Research Council, and the Judicial Action Group oppose this nomination.
In a letter sent to all Senators today, Concerned Women For America
noted that Ms. Nathan's:
. . . biases are so ingrained and so much the main thrust of
her career that it is not rational to believe that she will
suddenly change once confirmed as a judge. Rather it is
reasonable to conclude she would use her position to
implement her own political ideology.
I have reached the view that the facts as I have noted--her open
defense of the idea that judges can use sources other than our law to
decide cases and her lack of experience and proven record of good
judgment and legal skill, the fact that a minority of the ABA Standing
Committee on the Federal Judiciary found her not qualified to serve on
the bench, justifies a vote in opposition to this nomination. I will
not block the nomination. We will have an up-or-down vote. But I do
think in my best judgment--and that is all I have, my best judgment--
after reviewing her resume, looking at how thin her experience is, and
her positions on a number of issues, indicates to me that she has the
real potential to be an activist judge, not faithful to the law. For
that reason, I will vote no.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. BOOZMAN. Mr. President, I agree with the Senator from Alabama. In
Arkansas, it is so important that we get good judges nominated and
confirmed, and that is why I rise in support of Susan Hickey's
nomination as U.S. district judge for the Western District of Arkansas.
Judge Hickey's distinguished career interests reflect her pursuit to
serve the interests of justice. As an attorney and now as a circuit
judge in my home State of Arkansas, she has earned the respect of the
Arkansas legal community and proven she is devoted to fulfilling this
important role in our judicial system.
[[Page S6492]]
I am confident Judge Hickey's extensive experience with the legal
system will serve her well on the Federal bench. Her confirmation will
fill the seat of retired Judge Harry Barnes, whom she clerked for
before her appointment as circuit judge in the Thirteenth Judicial
District. She also worked in a private law firm following her
graduation from the University of Arkansas School of Law and also
served as an in-house counsel for Murphy Oil.
Judge Hickey has strong bipartisan support for good reason: She has
established herself as a dedicated public servant who possesses a
strong work ethic and commitment to a fair and impartial legal system.
Her experience and impartial demeanor and reputation amongst her peers
give me faith that Judge Hickey will do a great job as the U.S.
district judge for the Western District of Arkansas. When she was
nominated for this position, Arkansans from all across the State
expressed their support for her confirmation.
I am honored to recommend that the Senate confirm Judge Susan Hickey
as a U.S. district judge for the Western District of Arkansas. I am
confident her experience and judicial temperament make her the right
person to serve Arkansas as a district judge.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Mr. President, I wish to thank my colleague for being here
today and expressing his support for Susan Hickey to be a new Federal
district court judge in the Western District of Arkansas. She has a
strong record in our State. She is exactly what we need in a Federal
judge. The fact that we have both home State Senators, one Democrat and
one Republican, supportive of the nomination begins to speak volumes
about the kind of person and the kind of reputation Susan Hickey has.
She has been in both the public sector and private sector. She has
worked inhouse with an oil company, as Senator Boozman said. But she
has also law-clerked for a very solid and well-respected Federal judge.
She is now a State court judge in Arkansas at the State trial court
level. She has handled 313 felony criminal cases since she has been on
the bench. She brings a lot of experience, and she is exactly the kind
of person we need to be on the Federal bench.
When I look at a judge candidate, a judge nominee, I always have
three sets of criteria: One, are they qualified? Certainly, she is. She
brings very strong qualifications and experience to this position.
Second, can she be fair and impartial? I think that is something that
comes up with Susan Hickey over and over and over. From her local bar
down in south Arkansas, from the people in the community, the folks who
have dealt with her, they all say she is an extremely fair person, and
they have no doubt she will be impartial as she puts on that Federal
district court robe.
Then, my third criterion, does she have the proper judicial
temperament? That, obviously, is subjective because that comes down to
their personality and their style. But we want a Federal judge who has
great demeanor, who is very good with the law, but also very good with
lawyers because, obviously, in a trial court they have a lot of type A
personalities in the court, and they have to give the proper appearance
to the jury. That is critically important for a district court judge.
So I would say, absolutely, yes, she has the right judicial
temperament.
So I would strongly encourage all of my colleagues to vote favorably
for Susan Hickey. Like I said, she has handled 1,690 total matters in
the Federal courts since she has been a law clerk there.
Mr. President, 313 total felony cases have been disposed of in her
trial court in south Arkansas down in El Dorado. She has a lot of very
solid legal experience. The bottom line is, she is just a good person,
and people like her and respect her and they trust her.
I think when our Founding Fathers put together the Federal judiciary,
this was the kind of person they wanted. She reflects the values and
the attitudes of that part of the State. She is smart. She is hard
working. She is going to be fair. Really, we could not ask a whole lot
more for any Federal judge in any district, and, certainly, she is
going to do a great job down there.
So I am proud to be joined by my friend and colleague from Arkansas
to support this nomination. If we support her, and if we confirm her
today, we will be joining thousands and thousands of people in south
Arkansas who have supported her. We have had hundreds, I know, express
support for her in my office. I am certain Senator Boozman has had many
support her in his office as well.
I encourage my colleagues to give her very strong consideration. She
has been rated unanimously ``qualified'' by the American Bar
Association.
There, again, in that both home State Senators support her, the
American Bar Association supports her, the Arkansas bar--not the
association because they do not do those types of endorsements--but
every lawyer I have talked to who knows Susan Hickey thinks she will do
an outstanding job, I would like to ask my colleagues to vote for her
nomination and I appreciate their consideration.
With that, Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, I rise to speak today in support of two
excellent nominees for the bench from the Southern District of New
York. These two women, Alison Nathan and Katherine Forrest, have
different backgrounds, but each in her own way represents the best the
New York bar has to offer.
Katherine Forrest is a young lawyer but an extraordinarily
accomplished lawyer whose practice has been particularly well suited to
the needs of litigants in the Southern District. She was born in New
York City, received her BA from Wesleyan University, and her law degree
from NYU Law School, one of the best in the country. She has spent the
majority of her career in private practice at the prestigious, top-line
firm of Cravath, Swaine & Moore, where she was on the National A List
of Practitioners. She was named one of the American Lawyer's ``Top 50
Litigators Under 45.'' She currently serves as a Deputy Assistant
Attorney General in the Antitrust Division of the Department of
Justice, where I know she is very well regarded and has served with
great distinction. I look forward to Ms. Forrest's transition from
position of service to our country to the other.
I also rise in support of Alison Nathan. I would like to counter some
of the arguments that have been made against her on the floor here
today.
First, Alison Nathan has tremendous legal experience, albeit that she
is young. She is a gifted young lawyer whom New Yorkers would be
fortunate to have on the bench, hopefully for a long time. Although she
is a native of Philadelphia, she has called New York City her home for
some time. She graduated at the top of her class from both Cornell
University and Cornell Law School, where she was editor-in-chief of the
Cornell Law Review. She worked as a litigator for 4 years at the
preeminent firm of WilmerHale and has also served in two of the three
branches of government. Ms. Nathan clerked for Ninth Circuit Court of
Appeals Judge Betty Fletcher and then for Supreme Court Justice John
Paul Stevens. Recently, she served with distinction as a Special
Assistant to President Obama and an Associate White House Counsel. She
is currently special counsel to the solicitor general of New York. Now,
that is a world of experience. It is hard to find better experience
from somebody being nominated to the bench.
Some of my colleagues have said: Well, her rating from the ABA was
not as good and that was based on experience. That is what the ABA
does. They claim, these colleagues, that Ms. Nathan lacks the
experience to be confirmed as a judge because only a majority of the
ABA rated her qualified, while a minority rated her not qualified.
[[Page S6493]]
However, Ms. Nathan has the same qualification ratings as Bush
administration judges whom this body confirmed. Specifically, the
Senate confirmed 33 of President Bush's nominees with ratings equal to
Ms. Nathan, including Mark Fuller and Keith Watkins of Alabama,
Virginia Hopkins of the Northern District of Alabama, Paul Cassell of
Utah, Frederick Martone of Arizona, and David Bury of Arizona. Are we
going to have a different standard for Ali Nathan than for other
judges? I sure hope not.
Then some have brought up only recently--actually, very recently--the
thought that Ms. Nathan would apply foreign law to our own laws. It is
patently false to say that Ms. Nathan has suggested or that she
believes it is appropriate for U.S. judges to rely on foreign law or
that she herself would ever consider doing so. To the contrary. In
response to written questions from Senator Grassley, she said
explicitly:
If I were confirmed as a United States District Court
Judge, foreign law would have no relevance to my
interpretation of the U.S. Constitution.
Let's go through that quote again. This is in reference to a question
from Senator Grassley:
If I were confirmed as a United States District Court
Judge, foreign law would have no relevance--
``No relevance,'' my emphasis--
to my interpretation of the U.S. Constitution.
My colleagues are also wrong in their suggestion that Ms. Nathan has
in the past either relied on foreign law herself or suggested that
courts should do so. In the Baze vs. Rees case, she merely described
the fact that others, including a law school clinic and Human Rights
Watch, had argued in their own briefs that international law could be
considered when dealing with questions of pain and suffering.
Similarly, in her analysis of the Roper case, Ms. Nathan made an
observation about what the Supreme Court had done--specifically, that
the Supreme Court had cited foreign law as nondispositive support for
their conclusion about the national consensus in the United States
about the death penalty. That my colleagues jumped from these two
instances in which Ms. Nathan described other peoples' opinions to
conclusions about Ms. Nathan's own belief leads me to ask, are judicial
candidates not allowed to describe the arguments that others have made?
That would be rather absurd. I cannot imagine it is the outcome my
colleagues would want, but it is the one to which their arguments
naturally lead.
Finally, on national security, where again some from the outside who
have criticized Ms. Nathan have brought up national security, here is
what she has said:
I think it is important for a Federal district judge to
follow the Supreme Court. It is important to our national
security for there to be judges who follow the law in this
area--
National security--
to the extent questions come before them and that Congress
acts as it has in this area.
That is good reason that she is supported by all of the law clerks
she served with, including those of Justices Thomas, Scalia, Kennedy,
and O'Connor. And obviously those Justices are not Justices who agree
with some of the other Justices on the Court, but their law clerks
uniformly supported Ali Nathan.
So I would urge my colleagues to support Ali Nathan. She will be an
outstanding addition to the bench in the Southern District of New York,
as well as Katherine Forrest, who will also be an outstanding addition.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sanders.) The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Alison J. Nathan, of New York, to be United States District Judge
for the Southern District of New York?
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from North Carolina (Mrs.
Hagan), the Senator from Iowa (Mr. Harkin), the Senator from
Connecticut (Mr. Lieberman), the Senator from West Virginia (Mr.
Manchin), and the Senator from Michigan (Ms. Stabenow) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Oklahoma (Mr. Coburn), the Senator from Indiana (Mr. Lugar), and
the Senator from Louisiana (Mr. Vitter).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 48, nays 44, as follows:
[Rollcall Vote No. 164 Ex.]
YEAS--48
Akaka
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--44
Alexander
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hatch
Heller
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Kyl
Lee
McCain
McConnell
Moran
Murkowski
Paul
Portman
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Thune
Toomey
Wicker
NOT VOTING--8
Coburn
Hagan
Harkin
Lieberman
Lugar
Manchin
Stabenow
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Susan Owens Hickey, of Arkansas, to be
United States District Judge for the Western District of Arkansas?
The Senator from Vermont.
Mr. LEAHY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer),
the Senator from North Carolina (Mrs. Hagan), the Senator from Iowa
(Mr. Harkin), the Senator from Connecticut (Mr. Lieberman), the Senator
from West Virginia (Mr. Manchin), and the Senator from Michigan (Ms.
Stabenow) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Oklahoma (Mr. Coburn), the Senator from Indiana (Mr. Lugar), and
the Senator from Louisiana (Mr. Vitter).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
wishing to vote?
The result was announced--yeas 83, nays 8, as follows:
[Rollcall Vote No. 165 Ex.]
YEAS--83
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Snowe
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--8
Burr
DeMint
Grassley
Kyl
Lee
McCain
Paul
Shelby
[[Page S6494]]
NOT VOTING--9
Boxer
Coburn
Hagan
Harkin
Lieberman
Lugar
Manchin
Stabenow
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Katherine B. Forrest, of New York, to be
United States District Judge for the Southern District of New York?
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motions to
reconsider are considered made and laid upon the table and the
President will be immediately notified of the Senate's action.
____________________