[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.

                          ____________________