[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.

                          ____________________