[Congressional Record Volume 157, Number 195 (Saturday, December 17, 2011)]
[Senate]
[Pages S8769-S8773]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE CALENDAR
Mr. REID. I ask unanimous consent that the Senate proceed to
executive session to consider the following nominations: Calendar Nos.
421, 503, 529, 530, 531, 532, 533, 534, 535, with the exception of COL
Bradley D. Spacy; then 536, 537, 538, 539, 540, and all nominations
placed on the Secretary's desk; that the nominations be confirmed en
bloc; that the motions to reconsider be considered made and laid upon
the table with no intervening action or debate; that no further motions
be in order to any of the nominations; that any related statements be
printed in the Record; that President Obama be immediately notified of
the Senate's action and the Senate then resume legislative session.
The PRESIDING OFFICER. Without objection, it is so ordered.
The nominations considered and confirmed are as follows:
department of state
Joyce A. Barr, of Washington, a Career Member of the Senior
Foreign Service, Class of Minister-Counselor, to be Assistant
Secretary of State (Administration).
Michael Anthony McFaul, of California, to be Ambassador
Extraordinary and Plenipotentiary of the United States of
America to the Russian Federation.
department of defense
Brad Carson, of Oklahoma, to be General Counsel of the
Department of the Army.
Michael A. Sheehan, of New Jersey, to be an Assistant
Secretary of Defense.
in the air force
The following named officer for appointment in the Reserve
of the Air Force to the grade indicated under title 10,
U.S.C., section 12203:
To be brigadier general
Col. Merle D. Hart
The following named officer for appointment in the United
States Air Force to the grade indicated while assigned to a
position of importance and responsibility under title 10,
U.S.C., section 601:
To be lieutenant general
Lt. Gen. Frank Gorenc
The following named officer for appointment in the Reserve
of the Air Force to the grade indicated under title 10,
U.S.C., section 12203:
To be brigadier general
Col. Brian E. Dominguez
The following Air National Guard of the United States
officer for appointment in the Reserve of the Air Force to
the grade indicated under title 10, U.S.C., section 12203 and
12212:
To be brigadier general
Col. John P. Currenti
The following named officers for appointment in the United
States Air Force to the grade indicated under title 10,
U.S.C., section 624:
To be brigadier general
Colonel John D. Bansemer
Colonel David B. Been
Colonel Michael T. Brewer
Colonel Thomas A. Bussiere
Colonel Clinton E. Crosier
Colonel Albert M. Elton, II
Colonel Michael A. Fantini
Colonel Timothy G. Fay
Colonel Edward A. Fienga
Colonel Steven D. Garland
Colonel Thomas W. Geary
Colonel Cedric D. George
Colonel Blaine D. Holt
Colonel Scott A. Howell
Colonel Ronald L. Huntley
Colonel Allen J. Jamerson
Colonel James C. Johnson
Colonel Mark D. Kelly
Colonel Scott A. Kindsvater
Colonel Donald E. Kirkland
Colonel Bruce H. McClintock
Colonel Martha A. Meeker
Colonel John E. Michel
Colonel Charles L. Moore, Jr.
Colonel Gregory S. Otey
Colonel John T. Quintas
Colonel Michael D. Rothstein
Colonel Kevin B. Schneider
Colonel Scott F. Smith
Colonel Ferdinand B. Stoss
Colonel Jacqueline D. Van Ovost
Colonel James C. Vechery
Colonel Christoher P. Weggeman
Colonel Kevin B. Wooton
Colonel Sarah E. Zabel
in the army
The following named officer for appointment in the United
States Army to the grade indicated under title 10, U.S.C.,
section 624:
To be major general
Brig. Gen. Michael J. Lally, III
The following named officers for appointment in the United
States Army to the grade indicated under title 10, U.S.C.,
section 624:
To be brigadier general
Colonel John W. Baker
Colonel Margaret W. Burcham
Colonel Richard D. Clarke, Jr.
Colonel Roger L. Cloutier, Jr.
Colonel Timothy R. Coffin
Colonel Peggy C. Combs
Colonel Bruce T. Crawford
Colonel Jason T. Evans
Colonel Stephen E. Farmen
Colonel John G. Ferrari
Colonel Kimberly Field
Colonel Duane A. Gamble
Colonel Ryan F. Gonsalves
Colonel Wayne W. Grigsby, Jr.
Colonel Steven R. Grove
Colonel William B. Hickman
Colonel Christoher P. Hughes
Colonel Daniel P. Hughes
Colonel Daniel L. Karbler
Colonel Ronald F. Lewis
Colonel James B. Linder
Colonel Michael D. Lundy
Colonel David K. MacEwen
Colonel Todd B. McCaffrey
Colonel Paul M. Nakasone
Colonel Paul A. Ostrowski
Colonel Laura J. Richardson
Colonel Steven A. Shapiro
Colonel James E. Simpson
Colonel Mark R. Stammer
[[Page S8770]]
Colonel Michael C. Wehr
Colonel Eric P. Wendt
The following named officer for appointment in the United
States Army to the grade indicated under title 10, U.S.C.,
section 624:
To be major general
Brig. Gen. Lynn A. Collyar
The following named officer for appointment in the United
States Army to the grade indicated while assigned to a
position of importance and responsibility under title 10,
U.S.C., section 601:
To be lieutenant general
Maj. Gen. Mary A. Legere
The following named officer for appointment to the grade
indicated in the Army Nurse Corps under title 10, U.S.C.,
sections 3064 and 3069(b):
To be major general
Col. Jimmie O. Keenan
Nominations Placed on the Secretary's Desk
in the air force
PN1093 AIR FORCE nominations (14) beginning CHRISTINE L.
BLICEBAUM, and ending ABNER PERRY V. VALENZUELA, which
nominations were received by the Senate and appeared in the
Congressional Record of November 1, 2011.
PN1097 AIR FORCE nominations (16) beginning JOEL O.
ALMOSARA, and ending ANNETTE J. WILLIAMSON, which nominations
were received by the Senate and appeared in the Congressional
Record of November 1, 2011.
PN1145 AIR FORCE nominations (99) beginning KEITH ALLEN
ALLBRITTEN, and ending GREGORY S. WOODROW, which nominations
were received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1146 AIR FORCE nominations (4) beginning CHRISTON MICHAEL
GIBB, and ending THAD M. REDDICK, which nominations were
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
in the army
PN1147 ARMY nominations (4) beginning MICHAEL S. FUNK, and
ending JOHN W. RUEGER, which nominations were received by the
Senate and appeared in the Congressional Record of November
30, 2011.
PN1148 ARMY nominations (2) beginning JARROD W. HUDSON, and
ending CHARLES B. WAGENBLAST, which nominations were received
by the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1149 ARMY nomination of Kari L. Crawford, which was
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1150 ARMY nominations (3) beginning HENRY H. BEAULIEU,
and ending ERIC K. LITTLE, which nominations were received by
the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1151 ARMY nominations (246) beginning DONALD B. ABSHER,
and ending IRENE M. ZOPPI, which nominations were received by
the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1152 ARMY nominations (61) beginning JAMES S. ARANYI, and
ending MARK A. YOUNG, which nominations were received by the
Senate and appeared in the Congressional Record of November
30, 2011.
PN1153 ARMY nominations (166) beginning MITCHELL J. ABEL,
and ending THOMAS M. ZUBIK, which nominations were received
by the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1154 ARMY nominations (2) beginning NANCY L. DAVIS, and
ending SHEILA VILLINES, which nominations were received by
the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1155 ARMY nomination of Genevieve L. Costello, which was
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1156 ARMY nominations (2) beginning ROBERT J. NEWSOM, and
ending RICHARD Y. YOON, which nominations were received by
the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1157 ARMY nominations (2) beginning RICHARD A. DANIELS,
and ending STEPHEN M. LANGLOIS, which nominations were
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1158 ARMY nominations (2) beginning ARTHUR E. RABENHORST,
and ending STEVEN J. SVABEK, which nominations were received
by the Senate and appeared in the Congressional Record of
November 30, 2011.
PN1159 ARMY nomination of Harvey D. Hudson, which was
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1160 ARMY nomination of William H. Carothers, which was
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1178 ARMY nominations (95) beginning TODD S. ALBRIGHT,
and ending D001765, which nominations were received by the
Senate and appeared in the Congressional Record of December
5, 2011.
PN1179 ARMY nominations (21) beginning LARRINGTON R.
CONNELL, and ending RICARDO J. VENDRELL, which nominations
were received by the Senate and appeared in the Congressional
Record of December 5, 2011.
foreign service
PN969 FOREIGN SERVICE nominations (151) beginning John Ross
Beyrle, and ending Daniel J. Weber, which nominations were
received by the Senate and appeared in the Congressional
Record of September 15, 2011.
PN1005 FOREIGN SERVICE nominations (201) beginning Timothy
M. Bashor, and ending Rafaela Zuidema, which nominations were
received by the Senate and appeared in the Congressional
Record of October 3, 2011.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
PN1176 NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
nominations (16) beginning Benjamin M. Lacour, and ending
Brian D. Prestcott, which nominations were received by the
Senate and appeared in the Congressional Record of December
5, 2011.
in the navy
PN916 NAVY nomination of Andrew K. Ledford, which was
received by the Senate and appeared in the Congressional
Record of September 6, 2011.
PN1161 NAVY nomination of Matthew R. Loe, which was
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1162 NAVY nomination of Thomas P. English, which was
received by the Senate and appeared in the Congressional
Record of November 30, 2011.
PN1163 NAVY nominations (46) beginning RICHARD A. ACKERMAN,
and ending ADAM I. ZAKER, which nominations were received by
the Senate and appeared in the Congressional Record of
November 30, 2011.
public health service
PN1112 PUBLIC HEALTH SERVICE nominations (178) beginning
Jose G. Bal, and ending Kendra J. Vieira, which nominations
were received by the Senate and appeared in the Congressional
Record of November 8, 2011.
Mr. LEAHY. Mr. President, with the conclusion of the first session of
the 112th Congress, the Senate Republican leadership has cost us the
opportunity to take long overdue steps to address the serious vacancies
crisis on Federal courts throughout the country. With one out of every
ten Federal judgeships vacant we can and should be doing all that we
can to consider and confirm judicial nominations without unnecessary
delays. Regrettably, Senate Republicans have chosen instead to continue
their tactics of unexplained delay and obstruction and to repeat their
damaging decision at the end of last year to refuse to consent to votes
on even consensus judicial nominations. Such delaying tactics are a
disservice to the American people. The Senate should fulfill its
constitutional duty and ensure the ability of our Federal courts to
provide justice to Americans around the country.
There are 21 judicial nominees awaiting final Senate action, all but
two of them reported with significant bipartisan support, 16 of them
unanimously. That means nearly every judicial nomination can and should
be confirmed before the Senate adjourns. Yet, the Senate's Republican
leadership is repeating the terrible practice at the end of last year
in which 19 judicial nominees were blocked by Republicans and stalled
at the end of the year. It then took until June to take action on 17 of
those nominees.
The recent filibuster of the D.C. Circuit nomination of Caitlin
Halligan, a highly-regarded appellate advocate with the kind of
impeccable credentials in both public service and private practice that
make her unquestionably qualified to serve on the D.C. Circuit, set a
new and damaging standard. By refusing to consent to votes on consensus
nominees before the end of the session, Senate Republicans are setting
another damaging standard that will make it difficult for future
Presidents of either party to fill judicial vacancies.
I am speaking about the kinds of qualified, consensus nominees who in
past years would have been considered and confirmed by the Senate
within days of being reported with the support of every Democrat and
every Republican on the Judiciary Committee. Yet, due to Republican
refusal to give consent, it will take many months for the Senate to
confirm them to start serving on the Federal bench. Meanwhile, millions
of Americans who are served by the Federal courts in those districts
and circuits are left with overburdened courts and unneceesary delays
in having their cases determined.
All of these consensus nominees have been through an extensive
evaluation process before being reported to the Senate for final
approval. Senator Grassley and I have ensured all of these nominees
were fully considered by the Judiciary Committee after a
[[Page S8771]]
thorough, fair process, including completing our extensive
questionnaire and questioning at a hearing. Before each of these
nominees was selected by the President, the White House worked with the
nominees' home state Senators who support them, the FBI completed an
extensive background review, and each nominee was reviewed by the
American Bar Association's Standing Committee on the Federal Judiciary.
When the nominations have been approved by the Judiciary Committee
after this thorough process, there is no reason for the Senate failing
to vote on them before the end of the session.
It is wrong to dismiss the delays resulting from the Senate
Republicans' obstruction as merely political tit for tat. This is a new
and damaging tactic Senate Republicans have devised. They are stalling
action on noncontroversial nominees. Meanwhile, millions of Americans
across the country who are harmed by delays in overburdened courts bear
the cost of this obstruction. Nearly half of all Americans live in
districts or circuits that have a judicial vacancy that could be filled
today if Senate Republicans just agreed to vote on the nominations now
pending on the Senate Executive Calendar. It is wrong to delay votes on
these qualified, consensus judicial nominees. The Senate should be
helping to fill these multiple, extended judicial vacancies before
adjourning.
Our courts need qualified Federal judges, not vacancies, if they are
to reduce the excessive wait times that burden litigants seeking their
day in court. It is unacceptable for hardworking Americans who are
seeking their day in court to suffer unnecessary delays. When an
injured plaintiff sues to help cover the cost of his or her medical
expenses, that plaintiff should not have to wait for three years before
a judge hears the case. When two small business owners disagree over a
contract, they should not have to wait years for a court to resolve
their dispute.
With almost one in nine Federal judgeships currently vacant, the
Senate should have come together to address the serious judicial
vacancies crisis on Federal courts around the country. Bill Robinson,
the president of the American Bar Association, warned recently in a
letter to Senate leaders that excessive vacancies and high caseloads
``deprive . . . our federal courts of the capacity to deliver timely
justice in civil matters and has real consequences for the financial
well-being of businesses and for individual litigants whose lives are
put on hold pending resolution of their disputes.'' Justice Scalia,
Justice Kennedy and Chief Justice Roberts have also warned of the
serious problems created by persistent judicial vacancies. This is an
issue affecting hardworking Americans who are denied justice when their
cases are delayed by overburdened courts.
If caseloads were really a concern of Republican Senators, as they
contended when they filibustered the nomination last week of Caitlin
Halligan to the D.C. Circuit, they would not have blocked us from
voting to confirm consensus nominees to fill judicial emergency
vacancies. They would have consented to consider the nomination of
Judge Adalberto Jordan of Florida which was reported unanimously on
October to fill a judicial emergency vacancy on the Eleventh Circuit.
He is a well-respected Federal judge and his nomination is strongly
supported by Florida's Republican Senator, Mr. Rubio. Yet, despite the
judicial emergency Republicans continue to delay consideration of that
nomination. If they were really concerned with caseloads, they would
have consented to move forward to confirm Judge Jacqueline Nguyen of
California, a well-qualified nominee to fill a judicial emergency
vacancy on the Ninth Circuit, the busiest Federal appeals court in the
country, with judges called upon to handle double the caseload of the
other Federal circuit courts. Her nomination was reported unanimously
by the Judiciary Committee and needs only a final vote by the Senate.
Judge Nguyen is nominated to fill the judicial emergency vacancy that
remains after the Republican filibuster of Goodwin Liu.
If they cared about caseloads, they should also have consented to
votes on the nominations of David Nuffer to the District of Utah,
Michael Fitzgerald to the Central District of California, Gregg Costa
to the Southern District of Texas, and David Guaderrama to the Western
District of Texas, all nominations to fill judicial emergency
vacancies. Instead, those vacancies will not be filled for several more
months.
If Republican Senators were concerned about ensuring that our courts
have the judges they need to administer justice for the American
people, they would not have refused consent for the Senate to consider
these consensus judicial nominees. The secret holds and obstructive
blocks remind me of the Republican pocket filibusters that blocked more
than 60 of President Clinton's judicial nominations from Senate
consideration. When I became Chairman in 2001 and made the Committee
blue slip process public for the first time and worked to confirm 100
judicial nominees of a conservative Republican President in 17 months,
I hoped we had gotten past these partisan tactics. I am disappointed
after working for more than a decade to restore transparency and
fairness to the process of considering judicial nominations that we see
the Senate Republicans again using anonymous holds to block progress at
filling judicial vacancies.
The actions of the Senate Republican leadership today to block action
on 18 qualified, consensus judicial nominations mirrors their action
last year when they stalled consideration of 19 judicial nominations
that had been reported by the Judiciary Committee and were ready for
final Senate action at the end of last year. That was an abusive
exercise in unnecessary delay that I believe was without precedent with
respect to such consensus nominees. In contrast, Democratic Senators
proceeded to up or down votes on all 100 of President Bush's judicial
nominations reported by the Judiciary Committee during his first two
years in office, and all 100 were confirmed before the end of the 107th
Congress.
I had hoped and urged that such damaging obstruction not be repeated.
I had urged that before we adjourned the Senate at least consider the
18 judicial nominees voted on by the Judiciary Committee who are by any
measure consensus nominees. With vacancies continuing at harmfully high
levels, the American people and our Federal courts cannot afford these
unnecessary and damaging delays. It took until June of this year,
halfway into 2011, to consider and confirm 17 of the nominations that
could and should have been considered before the end of 2010. Yet
Senate Republicans are employing the same destructive tactics.
For the second year in a row, Republicans have rejected the Senate's
traditional longstanding practice of considering all of the consensus
nominations before the end of the Senate session, setting a standard
that before they did it last year was without precedent. We consented
to consider all of the consensus nominations at the end of President
Reagan's third year in office and President George H.W. Bush's third
year in office, when no judicial nominations were left pending on the
Senate Calendar. That is what we did at the end of the 1995 session,
President Clinton's third year in office, when only a single nomination
was left pending on the Senate calendar.
That is also what we did at the end of President George W. Bush's
third year. Although some judicial nominations were left pending, they
were among the most controversial, extreme and ideological of President
Bush's nominees. They had previously been debated extensively by the
Senate. The standard then was that noncontroversial judicial nominees
reported by the Judiciary Committee were confirmed by the Senate before
the end of the year. That is the standard we should have followed this
year. Had we done so, another 18 judges would have been confirmed.
The Senate remains far behind where we should be in considering
President Obama's judicial nominations. Nearly 3 years into his first
term, the Senate has confirmed a lower percentage of President Obama's
judicial nominees than those of any President in the last 35 years. The
Senate has confirmed just over 70 percent of President Obama's circuit
and district nominees, with more than one in four not confirmed. In
stark contrast, the Senate confirmed nearly 87 percent of President
George W. Bush's nominees, nearly 9 out of every 10 nominees he sent to
the Senate over two terms. That was a
[[Page S8772]]
higher percentage of judicial nominees confirmed than President Clinton
achieved and is far higher than President Obama's nominees.
Despite Senate Democrats joining Senate Republicans in confirming a
high percentage of President Bush's judicial nominees, Republican
Senators continue to point to the handful of President Bush's nominees
who were not confirmed to justify their across the board delays and
obstruction of President Obama's nominees. During their filibuster last
week of Caitlin Halligan, President Obama's first nominee to fill the
9th seat on the D.C. Circuit, we heard several Republicans seek to
justify the misguided filibuster by pointing to the fact that Peter
Keisler was not confirmed to fill the 11th seat on that same court.
Their selective recollection omits that the Senate did confirm four of
President Bush's D.C. Circuit nominees, twice filling the 10th seat and
once the 11th.
In her recent column on the New York Times website, Linda Greenhouse
wrote about how low the judicial confirmation process has sunk with the
Caitlin Halligan filibuster and the disparate treatment of President
Obama's nominees. She wrote:
But it seems to me that this tit-for-tat goes only so far.
President Bush succeeded in putting four decidedly
conservative nominees on the D.C. Circuit. Three remain there
today: Janice Rogers Brown, Thomas B. Griffith, and Brett M.
Kavanaugh. The fourth was John G. Roberts Jr. It was his
seat, which Chief Justice Roberts vacated on Sept. 29, 2005,
to which Ms. Halligan was nominated. True, the Republicans
didn't get everything they wanted. But they seem determined
to make sure that President Obama gets nothing.
I ask unanimous consent that a copy of Ms. Greenhouse's column be
printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, if it so ordered.
(See exhibit 1.)
Mr. LEAHY. Mr. President, we remain well behind the pace set by the
Senate during President Bush's first term. By the end of his first
term, the Senate had confirmed 205 district and circuit nominees, had
already confirmed 168 by this point in his third year, and had lowered
judicial vacancies to 46. In contrast, the Senate has confirmed only
124 of President Obama's district and circuit nominees, leaving
judicial vacancies at more than 80. The vacancy rate remains nearly
double what it had been reduced to by this point in the Bush
administration. Senate action on the 18 consensus judicial nominations
pending before the Senate as it ends it session would have gone a long
way to helping resolve the longstanding judicial vacancies that are
delaying justice for so many Americans in our Federal courts across the
country.
When the Senate returns in January, I hope that Senate Republicans
will abandon these destructive practices and join with us to confirm
the qualified, consensus judicial nominations they have stalled. This
cycle of unnecessary delays must end.
Exhibit 1
[From the New York Times, Dec. 14, 2011]
Rock Bottom
(By Linda Greenhouse)
Now that another highly qualified judicial nominee has been
left as road kill, the question is how much lower can the
confirmation process sink.
I'm referring to the defeat, by filibuster, last week of
Caitlin J. Halligan, President Obama's nominee to the United
States Court of Appeals for the District of Columbia Circuit.
I last wrote about Ms. Halligan back in April, at which point
her nomination had been pending for more than six months. Now
it's dead, on a nearly party-line vote, the Democratic
leadership having fallen six votes short of the 60 needed to
invoke cloture.
The only Republican to break ranks was Senator Lisa
Murkowski of Alaska, who won reelection as a write-in
candidate and so owes nothing to her Republican bosses. No
such independence was shown by the two Republican senators
from Maine, Olympia J. Snowe and Susan Collins, so-called
moderates whose efforts to explain their votes against
permitting Ms. Caitlin's nomination to come to a vote (a
simple majority would have approved it) were so contorted as
to be barely comprehensible. (Senator Collins mumbled
something about needing to shrink the appeals court, failing
to note that the Republicans invoked no such workload-related
compunctions when they filled not only the ninth seat, to
which Ms. Halligan was nominated, but the tenth as well.
There are now three vacancies on the 11-member court.)
Back in May, Senator Murkowski was also the only Republican
to vote to end the filibuster against Goodwin Liu, whom
President Obama had nominated to the United States Court of
Appeals for the Ninth Circuit, in San Francisco. (Now Justice
Liu, the former Berkeley law professor may have the last
laugh; Gov. Jerry Brown promptly named him to the California
Supreme Court.) At 41, Mr. Liu, a Rhodes scholar and former
Supreme Court law clerk, is a leading progressive legal
scholar of his generation. Although the Republicans came up
with other rationales for opposing him, including his Senate
Judiciary Committee testimony six years ago against the
Supreme Court confirmation of Samuel A. Alito Jr., the actual
reason was that they couldn't stand the thought of a young,
super smart, energetic liberal sitting on the appeals court,
in the launch position to become the first Asian-American on
the Supreme Court.
Mr. Liu is a friend of mine. I applauded his nomination and
was distressed at its fate. But since I don't believe that
judges are simply umpires who call balls and strikes, I get
the role of ideology in evaluating judicial nominees. What I
don't get is what happened to Ms.Halligan, whom I've met only
once or twice. She has no ideological markings other than
those that identify her with the mainstream of the New York
legal establishment, within which, following a clerkship with
Justice Stephen G. Breyer, she has made a spectacularly
successful career in both the public and private sectors. She
was solicitor general of New York State; head of the
appellate practice at a major law firm; and is now general
counsel to the Manhattan district attorney. She has argued
before the Supreme Court five times. Her 45th birthday was
Dec. 14.
This was not a fight over ideology. It was an effort to
keep the president from filling a seat on what is not just
another appeals court. The D.C. Circuit is not just a federal
court but a national one, with jurisdiction over federal
regulatory initiatives and habeas corpus appeals by
Guantanamo detainees. Next month, it will hear a potential
landmark case on the constitutionality of the Voting Rights
Act. Its caseload may not be huge, but its cases tend to be
dense, tough and vitally important.
When pressed on their treatment of Ms. Halligan,
Republicans typically invoke President George W. Bush's two
nominees whom the Democrats blocked from the D.C. Circuit,
Peter D. Keisler and Miguel A. Estrada, both highly qualified
and both prominent conservatives. (The classy Mr. Estrada
wrote to the Judiciary Committee in support of Ms. Halligan,
as did two dozen other members of leading law firms.)
But it seems to me that this tit-for-tat goes only so far.
President Bush succeeded in putting four decidedly
conservative nominees on the D.C. Circuit. Three remain there
today: Janice Rogers Brown, Thomas B. Griffith, and Brett M.
Kavanaugh. the fourth was John G. Roberts Jr. It was his
seat, which Chief Justice Roberts vacated on Sept. 29, 2005,
to which Ms. Halligan was nominated. True, the Republicans
didn't get everything they wanted. But they seem determined
to make sure that President Obama gets nothing.
Across the federal judiciary, confirmation has been
proceeding at a slow crawl. This week, the Judiciary
Committee held a scheduled confirmation hearing that could
have accommodated five nominees. But because Republican
senators claimed not to be finished reading the F.B.I. files
of four of the nominees, only one, Paul J. Watford, nominated
for the Ninth Circuit, was able to appear for his hearing.
Nominees who clear the committee without opposition have to
wait months for a floor vote because the Republicans won't
agree to a speedier schedule. Of 21 nominees now awaiting
floor votes, 18 had no committee opposition, but only a
handful, at most, will get a vote before the Senate recesses
for the year.
Just when news on the judicial front could not get more
discouraging, I came across something truly bizarre, a
position paper by the new front-runner among Republican
presidential candidates, Newt Gingrich. Under the title
``Bringing the Courts Back Under the Constitution,'' Mr.
Gingrich launches a 28-page attack on ``lawless judges'' who
need to be reined in ``if we are going to retain American
freedoms and American identity.''
The document, he writes, ``serves as political notice to
the public and to the legislative and judicial branches that
a Gingrich administration will reject the theory of judicial
supremacy and will reject passivity as a response to Supreme
Court rulings that ignore executive and legislative concerns
and which seek to institute policy changes that more properly
rest with Congress.'' By rejecting passivity, Mr. Gingrich
means impeaching judges for ``unconstitutional'' rulings or,
failing to muster the two-thirds majority necessary for
impeachment, simply abolishing their positions.
Much of the document is a grab bag of long familiar right-
wing talking points (Judges who acknowledge foreign law? A
threat to ``American sovereignty!'') It is also just plain
sloppy, misspelling Justice Ruth Bader Ginsburg's name
throughout. But truly head-spinning is the tenuous hold that
this screed, from a onetime history professor, has on
American history.
Mr. Gingrich writes that the contemporary ``power grab by
the Supreme Court'' is a ``modern phenomenon and a dramatic
break from all previous American history.'' (Anyone remember
the court's response to the
[[Page S8773]]
New Deal?) Rebuking the court for substituting its will for
that of Congress is downright strange, given that it is the
Republicans who have run to the federal courts, imploring
judges to strike down the Congressionally enacted Affordable
Care Act.
Perhaps strangest of all is Mr. Gingrich's attack on Cooper
v. Aaron, the court's celebrated response to the Little Rock
school crisis of 1958. The unanimous opinion, signed
individually by all nine justices for emphasis, held that
Arkansas and all other states were bound by the court's
interpretation of the equal protection guarantee four years
earlier in Brown v. Board of Education. Cooper v. Aaron was,
as Justice Breyer writes in his recent book, ``Making Our
Democracy Work,'' essential in its time and part of the
``hard-earned victory for the rule of law'' that the Little
Rock story became. Newt Gingrich is unmoved. Cooper v.
Aaron's assertion of the Supreme Court's authority, he
writes, was ``factually and historically false.''
Thinking back to Ms. Halligan's failed nomination, I
actually don't disagree with everything in Mr. Gingrich's
manifesto. Four words in boldface type on page 20 caught my
attention: ``Electing the right Senators.''
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