[Congressional Record Volume 158, Number 9 (Monday, January 23, 2012)]
[Senate]
[Pages S15-S16]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           GERRARD NOMINATION

  Mr. NELSON of Nebraska. I rise to speak on behalf of an outstanding 
Nebraskan, State Supreme Court Justice John Gerrard. His nomination to 
fill a vacancy on the U.S. District Court for Nebraska is now before 
the Senate.
  John Gerrard has built an exceptional record in private practice and 
on the Nebraska Supreme Court and will do an exemplary job as a U.S. 
district judge for the District of Nebraska. I have known him for more 
than 20 years and believe he has the experience, the intellect, and the 
temperament needed on our Federal bench. I cannot think of anyone 
better qualified than John Gerrard.
  I was very pleased the President nominated him. I have welcomed my 
colleague Senator Johann's strong support, and I believe the Senate 
should confirm him for the position of a U.S. district court judge.
  John Gerrard, a native of Schuyler, NE, has served as a private 
attorney, a city attorney, counsel to several public school districts 
in Nebraska, and he has an outstanding public record as a judge. In 
private practice, Judge Gerrard tried dozens of cases, both civil and 
criminal, to verdicts in State and Federal courts. He was highly 
respected as a trial attorney earning an ``AV'' Martindale-Hubbell 
rating from his colleagues. He was elected to the American Board of 
Trial Advocates by his peers.
  During my tenure as Governor, I appointed him, in 1995, to the 
Nebraska Supreme Court. Nebraska voters have shown their confidence in 
him by retaining him in office three times: in 1998, 2004, and 2010. He 
has consistently received top ratings by the Nebraska State Bar 
Association in its biennial judicial evaluations, particularly in the 
areas of legal analysis, judicial temperament, and fair treatment of 
litigants and their lawyers.
  Furthermore, the Nebraska judicial system gave him its Distinguished 
Judge for Improvement of Judicial System Award in 2006. This was in 
recognition of his work as cochair of the system's Minority Justice 
Committee and the Interpreter Advisory Committee, as well as leading 
initiatives promoting racial and ethnic fairness under the law.
  Also, in 2008, the Nebraska State Bar Foundation gave him its Legal 
Pioneer Award. This was for making the courts more user friendly for 
citizens from all cultures by utilizing technology and other means to 
improve both understanding and participation in the courts. I would 
note that on the Nebraska Supreme Court, Judge Gerrard has authored 
more than 450 opinions, and he is widely considered a leader on that 
court.
  Judge Gerrard is held in the highest regard by both the bench and the 
bar in Nebraska, and the American Bar Association has deemed him 
``unanimously well qualified'' to serve as a U.S. district judge. Judge 
Gerrard maintains the same even temperament off the bench as he does on 
the bench. Clearly, he is an exemplary person who has contributed much 
to our society.
  Furthermore, he and his wife Nancy have been married for 34 years and 
have raised four exceptional children. I would also note that during my 
years as Governor, I appointed 81 judges in the State of Nebraska, 
including the Nebraska State Supreme Court. Since I have been in the 
Senate, I voted on numerous judicial nominees. In all cases, I have 
supported candidates for the judiciary who convinced me they would 
follow the law and would not manipulate it to promote a personal or 
activist agenda. This is a critical test for me and it is relevant 
concerning Justice Gerrard. I am convinced he would not allow personal 
beliefs to interfere with his judicial duties, nor would he bring an 
activist agenda to the Federal bench. He has proven this beyond a doubt 
with his disciplined approach to the law over the last 16\1/2\ years as 
a judge on the Nebraska Supreme Court.
  Questions, however, have been raised to Justice Gerrard on those 
points, and I would like to address them now. He has been asked whether 
a matter may be constitutional one day and not the next based on a 
changing legal landscape. He has answered for the record that the U.S. 
Supreme Court and the circuit courts set the binding precedent on 
whether a matter is constitutional, which he would follow as a district 
judge.
  He has stated a Federal district court judge can conclude the law has 
changed only by legislation or by a ruling by a higher court. Justice 
Gerrard has a clear understanding of the limitations of a Federal 
district court judge. He has demonstrated that understanding in the 
deference he has given to the legislative branch and to higher court 
precedent during his years on the Nebraska Supreme Court.
  He has also been asked specifically whether he has personal beliefs 
that would make him unable to carry out the death penalty. Again, he 
has answered, for the record, that he does not. More to the point, 
Nebraska carried out the death penalty while I was

[[Page S16]]

Governor and Justice Gerrard was serving on the Nebraska Supreme Court. 
As a matter of fact, the court has concurred in establishing an 
execution date to take place this March 6 in the State of Nebraska.
  Issuing and executing a death sentence is one of the most solemn 
responsibilities the judicial and executive branches are entrusted 
with. In every instance, Justice Gerrard has ruled on the death 
penalty, he has been balanced, even-handed and, most important, 
faithful to the Constitution. In fact, Judge Gerrard has confirmed for 
the record that the U.S. Supreme Court and the Nebraska Supreme Court 
have repeatedly held that the death penalty is an acceptable punishment 
as long as the laws for imposing it are followed and the constitutional 
limitations imposed by the U.S. Supreme Court are respected.
  Finally, Judge Gerrard has stated, and the record shows, he has voted 
to confirm a number of sentences and convictions of those sentenced to 
death, and he has authored more than one State court opinion upholding 
the constitutionality of Nebraska's death penalty law. In my view, 
Judge Gerrard's answers and his clear record more than adequately 
address any concerns about his ability or willingness to both apply the 
law with impartiality and to carry out the law effectively .
  To sum up, John Gerrard deserves to be confirmed by the Senate 
because he has an outstanding legal record, he possesses the proper 
temperament needed on the Federal bench, and he will follow legal 
precedent to carry out the law rather than interpret as he sees it. He 
has been and will be an impartial judge, not an activist. So I urge his 
confirmation by my colleagues.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. JOHANNS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. JOHANNS. Mr. President, I am very pleased today to rise in 
support of a man who has proven himself worthy to serve as a Federal 
judge on the U.S. district court.
  Justice John Gerrard has experience, integrity, and respect for the 
Constitution--all of which are necessary for someone serving on our 
Federal bench.
  He has earned the respect and the admiration of the people of 
Nebraska. He consistently receives top ratings from the Nebraska State 
Bar Association, and the people of Nebraska have expressed their 
confidence in him not once, not twice, but three times, voting to 
retain him on the bench.
  Justice Gerrard has authored hundreds of opinions throughout his 16 
years as a member of the Nebraska Supreme Court. These decisions reveal 
with clarity his philosophy regarding the powers and limitations of a 
judge. They reflect his commitment to adhere to the Constitution and 
the laws of our great Nation.
  When asked about judicial restraint after his nomination to the U.S. 
district court, Justice Gerrard responded:

       I firmly believe that a judge should rely on the admissible 
     evidence and applicable law (and nothing else) when rendering 
     a decision.

  He further responded:

       I do not believe a judge should consider his or her own 
     values or policy preferences in determining what the law 
     means--and I have never done so at any time in my judicial 
     career.

  This unequivocal statement says a lot. Justice Gerrard knows that his 
more than 450 opinions are a matter of public record and that they are 
open to everyone's scrutiny. He has welcomed that. He has welcomed it 
with humility.
  You will not hear him boast about being the youngest person ever 
appointed to my home State's high court, nor will you hear him boast 
about his successful years as a private attorney and city attorney--and 
they were successful. He is absolutely unassuming. He is reflective and 
he is articulate. He speaks with great reverence about the oath he took 
to uphold the Constitution.
  I did not know Justice Gerrard prior to his appointment to the 
Nebraska Supreme Court, but he quickly developed a reputation as a 
disciplined judge who renders very well researched opinions.
  I believe Justice John Gerrard is a worthy member to join the U.S. 
district court, and so I stand here today urging my colleagues to vote 
in favor of his confirmation.
  I would also like to take a moment to talk about the process that 
brought us here this afternoon. In this regard, I would like to offer 
my appreciation and thanks to my colleague from Nebraska, the senior 
Senator, Ben Nelson. Senator Nelson called me before this nomination 
was made and asked for my input. I took that opportunity to sit down 
with Judge Gerrard and to talk to him. After our meeting and knowing 
what I knew about the justice, it was my decision to support his 
nomination to the U.S. district court. In fact, I would say, if I had 
total control of this nomination, I would do it all over again.
  This is a fine man. This is a man who I hope will have strong 
bipartisan support this afternoon when we vote on making him a U.S. 
district judge. He is a good man, and he deserves a strong bipartisan 
vote. He is going to adhere to the laws of our Nation with integrity, 
humility, and a strict adherence to the law.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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