[Congressional Record Volume 158, Number 22 (Thursday, February 9, 2012)]
[Senate]
[Pages S417-S420]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF CATHY ANN BENCIVENGO TO BE A UNITED STATES DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to consider the following
nomination, which the clerk will report.
The assistant legislative clerk read the nomination of Cathy Ann
Bencivengo, of California, to be United States District Judge for the
Southern District of California.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be 30 minutes of debate, equally divided, prior to a vote on the
nomination, with the time already consumed counting toward the
majority's portion.
The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I rise to speak on behalf of the
nomination of magistrate judge Cathy Ann Bencivengo to the position of
district judge for the Southern District of California.
Judge Bencivengo will fill a judicial emergency vacancy in a judicial
district along the southwest border that has one of the highest and
most rapidly increasing criminal caseloads in the country.
The Southern District of California includes San Diego and Imperial
Counties. It borders Mexico, and it consequently has a large
immigration caseload. It ranks fourth in the country in terms of
criminal case filings per authorized judgeship.
The district's former chief judge, Irma Gonzalez, wrote me a letter
urging Judge Bencivengo's confirmation and highlighting the felony
caseload crisis in the district. As Chief Judge Gonzalez explained,
since 2008 criminal case filings in the district have increased by 42
percent and civil case filings by 25 percent. In the past fiscal year
alone, criminal cases had risen 17 percent up to the time of her
letter. It is, in fact, a judicial emergency.
The ACTING PRESIDENT pro tempore. The Senator is advised the previous
allotted time has expired.
Mrs. FEINSTEIN. I ask unanimous consent to speak for 7 minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. Let me tell everyone a little about Judge Bencivengo.
She is a consensus nominee who was approved by the Judiciary Committee
by a voice vote. That does not often happen. There was no objection
from any colleague on any side of the aisle.
She was recommended to me by a bipartisan judicial selection
committee which I have established in California to advise me in
recommending judicial nominees to the President. This committee reviews
judicial candidates based on their legal skill, reputation, experience,
temperament, and overall commitment to excellence.
Judge Bencivengo has been a U.S. magistrate judge in San Diego for
the last 6 years, and she has earned an outstanding reputation in that
judicial role.
Throughout my advisory committee's process, Judge Bencivengo has
actually set herself apart as a person who would be truly exceptional.
She was born in New Jersey. She began her undergraduate career at
Rutgers. She earned a bachelor's in journalism and political science
and a master's from Rutgers as well.
She worked for a leading American corporation--Johnson & Johnson--in
New Brunswick. She then attended the University of Michigan Law School,
where she excelled, graduating magna cum laude, and was inducted into
the Order of the Coif.
After law school, she joined the San Diego firm of Gray Cary, which
later became part of a major international law firm. She became a
founding member of the firm's patent litigation group. Her knowledge of
patent law, which she honed in law school and in private practice, made
her a valued resource for her colleagues and clients, so she quickly
rose through the ranks at her firm. She was selected as the national
cochair of her firm's patent litigation group, a role in which she
managed 70 patent attorneys.
In 2005, she became a magistrate judge, a role in which she has
served as a serious and thoughtful jurist. Since her appointment, she
has published 180 opinions, over 190 reports and recommendations, over
1,800 orders on nondispositive motions, and roughly 800 of her orders
involved felony criminal cases.
[[Page S418]]
She has substantial expertise in patent law, which will be welcome in
the district, which is part of a new Federal judicial program designed
to assign more patent cases to judges who are experts in the field of
patent law. So she will be helpful.
Judge Bencivengo has received high praise from any number of people.
I know of no opposition to her confirmation. I think this advice and
consent process will yield a very good, seasoned San Diego magistrate
judge for the district court, and I am very proud to recommend her and
to have had unanimous consent of the Judiciary Committee for her
confirmation.
I see Senator Lee on the floor. Perhaps I could ask unanimous consent
that when Senator Lee concludes, and if there is time remaining, I be
recognized to speak for a couple minutes as in morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Utah.
Mr. LEE. Mr. President, I ask unanimous consent to speak for a period
of up to 7 minutes.
The ACTING PRESIDENT pro tempore. The Senator has that time.
Mr. LEE. Mr. President, I rise in opposition to this nomination. I do
so not because of the qualifications of this particular nominee, but
instead I do so in defense of the U.S. Constitution.
In opposing President Obama's appointments, I have repeatedly made
clear this is a constitutional issue. Each time I have spoken--and I
have done so on numerous occasions--I have set forth in detail the
reasons why I believe on a legal basis, on a constitutional basis, why
President Obama's recent purported recess appointments are
unprecedented and unconstitutional. I have also made absolutely clear
that my opposition to President Obama's appointments is not partisan
and that I will hold a Republican President equally accountable
whenever any Republican President makes a similarly unconstitutional
claim of power.
This President has enjoyed my cooperation up to this point. I voted
for many, if not most, of his nominees. That cooperation cannot
continue--not in the same way he has enjoyed it up to this point. In
light of the fact he has disrespected our authority within this body,
he has disrespected the Constitution.
Unfortunately, many of my colleagues have refused to engage on the
real substance of this issue. Instead, they have repeatedly changed the
subject to partisan politics, the nominations process, and Richard
Cordray's qualifications to head the CFPB. Even worse, and despite my
repeatedly making clear I intend to hold any Republican President to
the same standard to protect the institutional and constitutional
prerogatives of the Senate rather than the interests of any political
party--given those are at stake--the Democrats, including the President
himself, have accused me of playing politics. I wish to be clear again:
This is not the case. I am here to defend the constitutional
prerogatives of the Senate and the separation of powers and the system
of checks and balances that are at the heart of our constitutional
system.
The Senate's advice-and-consent role is grounded in the
Constitution's system of checks and balances. In Federalist 51, James
Madison wrote:
. . . the great security against a gradual concentration of
the several powers in the same [branch of government],
consists in giving to those who administer each [branch] the
necessary constitutional means and personal motives to resist
encroachments of the others.
Among those constitutional means is the Senate's ability to withhold
its consent for a nominee, forcing the President to work with Congress
to address that body's concerns.
The key conclusion of the Department of Justice's Office of Legal
Counsel memorandum, on which President Obama relied in making these
recess appointments, is that the President may unilaterally decide and
conclude that the Senate's pro forma sessions somehow do not constitute
sessions of the Senate for purposes relevant to the recess appointments
clause, in clause 3 of article II, section 2. If allowed to stand, this
deeply flawed assertion would upend an important element of the
Constitution's separation of powers. Under the procedures set forth by
the Constitution, it is for the Senate, not for the President, to
determine when the Senate is in session. Indeed, the Constitution
expressly grants the Senate that prerogative, the power to ``determine
the Rules of its Proceedings.''
Commenting on this very provision in his authoritative constitutional
treatise, Joseph Story noted:
[t]he humblest assembly of men is understood to possess
[the power to make its own rules,] and it would be absurd to
deprive the councils of the nation of a like authority.
Yet this is precisely the result of President Obama's attempt to tell
the Senate when it is or is not in recess.
I am saddened some of my colleagues in the Senate are not more
jealous of this body's rightful constitutional, institutional
prerogatives. As they well know, the Constitution's protections do not
belong to any one party, and its structural separation of powers is
meant to protect against the abuses of present and future Presidents of
both parties. Acquiescing to the President in the moment may result in
temporary political gain for the President's party, but relinquishing
this important piece of the Senate's constitutional role has lasting
consequences for Republicans and Democrats alike.
It is on this basis, and because of the oath I have taken to uphold
the Constitution of the United States, that I find myself dutybound to
oppose this nomination. I strongly urge my colleagues on both sides of
the aisle to take seriously their obligation both to the Constitution
and to the institutional prerogatives of the Senate and to do the same.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I would like to briefly respond to
Senator Lee's comments.
I understand the reasons for which he is opposing this nominee. I
would again point out that, in my opinion, based on what I heard the
distinguished Senator say, it has nothing to do with the nominee. It
has to do with a peripheral issue. I would hope a majority of the
Senate would understand this is a totally noncontroversial, totally
capable, totally qualified, and totally good nominee. To hold her
confirmation hostage is something that doesn't redound well on this
body.
This is a judicial emergency in the Southern District of California,
and we need to get this judge approved. So while I appreciate the
Senator's comments--I think most of us are well aware of the feelings
on the other side--I think somehow, some way, we have to come together
and prevent what is happening. And what is happening is, if I don't get
my way on something, I am going to hold up appointments, I am going to
hold up confirmations, and I am going to do whatever I can to show I
have power to disrupt this body.
In essence, the body can be disrupted. We know that. There are very
strong minority rights in the Senate rules of order. But at the same
time, we have an obligation to see that qualified people who want to
serve in this government--in this case in the judicial arm, in the
Federal Court system--have an opportunity to do so, and where there is
real danger in terms of overly high caseloads, we can respond and get
qualified nominees in place.
I appreciate what the Senator had to say. I understand it. But I
appeal to this body: Please vote to approve Cathy Bencivengo to the
Southern District of California.
Mr. LEAHY. Mr. President, today, the Senate will finally vote on the
nomination of Judge Cathy Bencivengo to fill a vacancy on the the U.S.
District Court for the Southern District of California, where she has
served as a Magistrate Judge since 2005. An experienced judge and
lawyer, with 17 years in private practice before becoming a Magistrate
Judge, Judge Bencivengo received the highest possible rating from the
ABA's Standing Committee on the Federal Judiciary, unanimously ``well
qualified.'' Her nomination, which has the strong support of her home
state Senators, Senators Feinstein and Boxer, was reported unanimously
by the Judiciary Committee on October 6. Yet, despite the support of
every Member of the Judiciary Committee, Democratic and Republican, and
despite vacancies across the country in nearly one out of every 10
Federal judgeships, it has taken over 4
[[Page S419]]
months for Senate Republicans to consent to a vote on Judge
Bencivengo's nomination.
I thank the Majority Leader for securing today's vote. There is no
reason or explanation why the Senate Republican leadership will not
consent to vote on the other 18 judicial nominations waiting for final
Senate action. All but three of them were reported by the Judiciary
Committee without opposition, just like Judge Bencivengo's nomination.
Earlier this week I urged Senate Republicans to join with Democrats
and take long overdue steps to remedy the serious vacancies crisis on
Federal courts throughout the country. Consenting to vote on a single
judicial nomination, only the third such vote we have had this year, is
not much in the way of progress.
There is no reason or explanation for why Senate Republicans continue
to block a vote on the nomination of Jesse Furman to fill a vacancy on
the Southern District of New York. His nomination was voted out of the
Judiciary Committee on September 15, nearly 5 months ago, without
opposition from a single member of the Committee and a month before the
nomination being considered today. Mr. Furman, an experienced Federal
prosecutor who served as Counselor to Attorney General Michael Mukasey
for 2 years during the Bush administration, is a nominee with an
impressive background and bipartisan support. We should have voted on
his nomination many months ago, and certainly before the end of the
last session. Senate Republicans have now skipped over that nomination
and stalled it for almost 5 months.
Senate Republicans continue to block even judicial nominations with
home State support from Republican Senators. Republican Senator Marco
Rubio and Democratic Senator Bill Nelson of Florida both introduced
Judge Adalberto Jordan of Florida to the Judiciary Committee when we
held his confirmation hearing last September for his nomination to fill
a judicial emergency vacancy on the Eleventh Circuit, and both strongly
support his nomination.
Judge Jordan is an experienced jurist who has served as a judge for
the Southern District of Florida since 1999. If confirmed, Judge Jordan
will be the first Cuban-born judge to serve on the Eleventh Circuit,
which covers Florida, Georgia and Alabama. Born in Havana, Cuba, Judge
Jordan immigrated to the United States at age 6, going on to graduate
summa cum laude from the University of Miami law school. After law
school, he clerked for Judge Thomas A. Clark on the Eleventh Circuit,
the court to which he is now nominationed, and for Justice Sandra Day
O'Connor, a President Reagan appointee to the United States Supreme
Court. Judge Jordan has been a prosecutor in the Southern District of
Florida, serving as Deputy Chief and then Chief of the Appellate
Division. Judge Jordan has been a professor, since 1990 teaching at his
alma mater, the University of Miami School of Law, as well as the
Florida International University College of Law. It is no suprrise that
the ABA's Standing Committee on the Federal Judiciary unanimously rated
Judge Jordan ``well qualified'' to serve on the Eleventh Circuit, the
highest possible rating from its non-partisan peer review. It is also
no surprise that his nomination was reported unanimously by the
Judiciary Committee nearly 4 months ago. The surprise is that Senate
Republicans continue to stall action on this nomination for no good
reason.
Judge Jordan is the kind of consensus judicial nominee that should be
welcomed as one of the many examples of President Obama reaching out to
work with Republican and Democratic home State senators and the kind of
superbly qualified nominee we should all encourage to serve on the
distinguished bench of Federal appeals court judges. In the past the
Senate would have voted on his nomination within days or weeks of its
being reported unanimously by the Judiciary Committee. Yet Republicans
refused to consent to a vote on Judge Jordan's nomination before the
end of the last session and it has been stalled on the Senate Calenadar
for nearly 4 months. When we finally do vote on Judge Jordan's
nomination I am certain he will be confirmed with broad bipartisan
support, perhaps unanimously. There is no good reason the Senate is not
voting to confirm Judge Jordan today.
If caseloads were really a concern of Republican Senators, as they
contended when they filibustered the nomination last December of
Caitlin Halligan to the D.C. Circuit, they would not continue to block
us from voting on Judge Jordan's nomination to fill a judicial
emergency vacancy on the Eleventh Circuit, one of the busier circuits
in the country. They would not continue to block a vote on the
nomination of Judge Jacqueline Nguyen, reported last December to fill a
judicial emergency vacancy on the Ninth Circuit, the busiest Federal
appeals court in the country. They would consent to vote on the
nomination of Paul Watford, a well-qualified nominee to fill another
judicial emeregency on the Ninth Circuit. They would stop blocking us
from voting on the nominations of David Nuffer to fill a judicial
emergency vacancy on the District of Utah, Michael Fitzgerald to fill a
judicial emergency vacancy on the Central District of California,
Miranda Du to fill a judicial emergency vacancy on the District of
Nevada, Gregg Costa to fill a judicial emeregency vacancy on the
Southern District of Texas, and David Guaderrama to fill a judicial
emergency vacancy on the Western District of Texas.
Of the 19 judicial nominations now awaiting a final vote by the
Senate, 16 were reported by the Judiciary Committee with the support of
every Senator on the Committee, Democratic and Republican. Month after
month and year after year, Senate Republicans find excuses to delay
confirmation of consensus judicial nominees for no good reason. These
delays are a disservice to the American people. They prevent the Senate
from fulfilling its constitutional duty. And they are damaging to the
ability of our Federal courts to provide justice to Americans around
the country.
The cost of this across-the-board Republican obstruction is borne by
the American people. More than half of all Americans, nearly 160
million, 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 that have been reported favorably by the Judiciary
Committee. It is wrong to delay votes on these qualified, consensus
judicial nominees. The Senate should fill these numerous, extended
judicial vacancies, not delay final action for no good reason.
By nearly any measure we are well behind where we should be. Three
years into President Obama's 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. This is in stark contrast to the
nearly 87 percent of President George W. Bush's nominees who were
confirmed, nearly nine out of every 10 nominees he sent to the Senate.
We remain well behind the pace set by the Senate during President
Bush's first term. By this date in President Bush's first term, the
Senate had confirmed 170 Federal circuit and district court nominations
on the way to 205, and had lowered judicial vacancies to 46. By the
time Americans went to the polls in November 2004, we had reduced
vacancies to 28 nationwide, the lowest level in the last 20 years. In
contrast, the Senate has confirmed only 125 of President Obama's
district and circuit nominees, and judicial vacancies remain over 85.
The vacancy rate is double what it was at this point in the Bush
administration.
I, again, urge Senate Republicans to abandon their obstructionist
tactics and do as Senate Democrats did when we worked to confirm 100 of
President Bush's judicial nominees in 17 months. I urge them to work to
reduce judicial vacancies as we did by considering and confirming
President Bush's judicial nominations late into the Presidential
election years of 2004 and 2008, reducing the vacancy rates in those
years to their lowest levels in decades. That is the only way we have a
chance to make up some of the ground we have lost and to address the
serious and extended crisis in judicial vacancies.
I congratulate Judge Bencivengo on her confirmation today and hope
that
[[Page S420]]
we can soon take up the rest of the 18 judicial nominations still
awaiting a Senate vote.
Mr. GRASSLEY. Mr. President, today the Senate is considering the
nomination of Cathy Ann Bencivengo to be U.S. district judge for the
Southern District of California. I support this nomination which will
fill the vacancy that has been created by Judge Jeffrey Miller taking
senior status. I would also note that this vacancy has been designated
as a judicial emergency.
After today, the Senate will have confirmed 126 nominees to our
article III courts. I would note that even as we continue to reduce
judicial vacancies, the majority of vacancies have no nominee. In fact,
46 of 86 vacancies have no nomination. Furthermore, 18 of the 33 seats
designated judicial emergencies have no nominee. So when I hear
comments about ``unprecedented'' vacancy rates, I would ask my
colleagues and the other interested parties to look first to the White
House. The fact is, the Senate is doing its job in providing advice and
consent to the President's judicial nominees.
Judge Cathy Ann Bencivengo presently serves as a U.S. magistrate
judge for the Southern District of California. She was appointed to
that court in 2005.
She received a bachelor of arts from the Rutgers University in 1980,
a masters from Rutgers in 1981, and her juris doctorate from University
of Michigan Law School in 1988.
Upon graduating law school, Judge Bencivengo became an associate at
the law firm DLA Piper. There, she worked as a civil litigator,
primarily handling intellectual property cases. In 1996, she became a
partner at DLA Piper. She also was the national cochair of patent
litigation for DLA Piper from 1993 to 2005.
In 1994, Judge Bencivengo was appointed as a judge pro tem for the
San Diego Small Claims Court. She served there until 2006, volunteering
approximately six times a year and hearing judgments on about 100
cases.
Since becoming a magistrate judge in 2005, Judge Bencivengo has
presided over two cases that have gone to final verdict.
The American Bar Association Standing Committee on the Federal
Judiciary has rated Judge Bencivengo with a unanimous ``well-
qualified'' rating.
Mrs. BOXER: Mr. President, I am proud to vote for the confirmation of
Magistrate Judge Cathy Ann Bencivengo to the U.S. District Court for
the Southern District of California. Judge Bencivengo was recommended
to the President by my colleague, Senator Feinstein, and will be a
great addition to the Federal bench.
Judge Bencivengo will bring to the bench her broad experience as a
skilled lawyer and a Federal magistrate. A graduate of Rutgers
University and the University of Michigan Law School, Judge Bencivengo
served as a partner and the National Co-Chair of Patent Litigation
Group for the international law firm of DLA Piper. In 2005, she
received an appointment to become a Magistrate Judge for the Southern
District of California, where she has authored more than 170 opinions.
I congratulate Judge Bencivengo and her family on this important day,
and urge my colleagues in the Senate to join in voting to confirm this
highly qualified nominee to the Federal bench.
I yield the floor, and I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FEINSTEIN. 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.
The question is, Shall the Senate advise and consent to the
nomination of Cathy Ann Bencivengo, of California, to be United States
District Judge for the Southern District of California.
Mrs. FEINSTEIN. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Illinois (Mr. Kirk), the Senator from Kansas (Mr. Moran), the
Senator from Kansas (Mr. Roberts), and the Senator from Mississippi
(Mr. Wicker).
The PRESIDING OFFICER (Mr. Sanders). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 90, nays 6, as follows:
[Rollcall Vote No. 16 Ex.]
YEAS--90
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wyden
NAYS--6
Crapo
DeMint
Lee
Paul
Risch
Shelby
NOT VOTING--4
Kirk
Moran
Roberts
Wicker
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table. The President
shall be immediately notified of the Senate's action.
____________________