[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.''

                          ____________________