[Congressional Record Volume 158, Number 27 (Friday, February 17, 2012)]
[Senate]
[Pages S886-S888]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JESSE M. FURMAN TO BE UNITED STATES DISTRICT JUDGE FOR 
                   THE SOUTHERN DISTRICT OF NEW YORK

  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 Jesse M. 
Furman, of New York, to be United States District Judge for the 
Southern District of New York.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
cloture motion on this nomination is withdrawn.
  There is now 2 minutes equally divided prior to a vote on the 
nomination.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I appreciate the fact that the filibuster 
has

[[Page S887]]

been dropped on this very good man. This nomination has taken months to 
get here. I would urge everybody to vote for it.
  Mr. LEAHY. Mr. President, I commend the majority leader for pressing 
forward to obtain a vote on the nomination of Jesse Furman, finally 
bringing to an end the 5-month Republican filibuster of this 
nomination. It should not have taken five months and the filing of a 
cloture petition to secure a vote on this superbly qualified, consensus 
nominee. When the Judiciary Committee voted on this nomination last 
September, it had the support of every Democrat and ever Republican on 
the Committee. Yesterday, I spoke, again, of the dangers posed by this 
Republican filibuster of a consensus Federal district court nominee. I 
am glad Senate Republicans have backed away from their misguided 
effort.
  The extended delay in considering the Furman nomination has not only 
been damaging to the Federal District Court of New York, but also to 
the people it serves. This has also led to some extreme groups on the 
far right making scurrilous attacks on the reputation of this good man. 
I trust that no Senator will credit the mischaracterizations of Mr. 
Furman's record. His role in filing an amicus brief in a First 
Amendment case in the Supreme Court on behalf of the Anti-Defamation 
League when he was in private practice has been misquoted and 
mischaracterized to the point where you have to wonder if it is 
intentional. Of course, no lawyer should be disqualified from being a 
judge for advocating on behalf of client. Were the Senate to go down 
that road, we would disqualify many outstanding lawyers capable of 
being excellent judges. Senate Republicans filibustered Judge Jack 
McConnell of Rhode Island because he represented parents and children 
exposed to health risks by lead in paint. That error should not be 
repeated.
  I am glad the Senate is finally voting on this nomination. With 21 
judicial nominations approved by the Senate Judiciary Committee 
awaiting a final vote, with one out of every 10 Federal judgeships 
vacant throughout the country, and with the Senate still more than 40 
confirmations behind the pace we set with President Bush, the Senate 
cannot afford this continuing obstruction and delay of judicial 
confirmations. This filibuster, like the filibuster of Judge Adalberto 
Jordan that we finally ended earlier this week and others, bring 
derision upon the Senate, are a colossal waste of the time, and harm 
our Federal courts and the American people seeking justice.
  I, again, urge Senate Republicans to abandon the damaging tactics 
that led to this unnecessary 5-month filibuster of the Furman 
nomination, the shameful 4-month and 2-day filibuster of the Jordan 
nomination, and to abandon their continued stalling of 20 additional 
judicial nominees ready for final consideration and confirmation. I, 
again, urge Senate Republicans to join with us to restore the Senate's 
longstanding practice of considering and confirming consensus nominees 
without extended delays. The American people deserve no less.
  Mr. GRASSLEY. Mr. President, today we turn to the nomination Jesse M. 
Furman, to be U.S. district judge for the Southern District of New 
York. Mr. Furman was reported out of the Judiciary Committee last fall 
by voice vote.
  When we considered his nomination last year, a few items of concern 
were raised. These issues included writings he made while in college on 
gun control and an amicus brief he drafted opposing a religious club's 
access to school facilities for meetings.
  Based on his hearing testimony and responses to written questions, I 
was willing to allow Mr. Furman's nomination to move to the full Senate 
for consideration.
  In the interim, conditions have changed which require me to give a 
closer scrutiny to Mr. Furman's record and to the confirmation process 
in general.
  Generally, I am willing to give the President's nominees the benefit 
of the doubt when the nominee on the surface meets the requirements I 
have previously outlined. But as I indicated over the past few weeks, 
we are not operating under normal circumstances. The atmosphere the 
President has created with his disregard for Constitutional principles 
has made it difficult to give his nominees any benefit of the doubt. 
Given that I did have some doubts about Mr. Furman's record, I oppose 
his confirmation.
  Mr. LEAHY. I yield to the Senator from New York.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank the chairman and the Judiciary 
Committee for reporting Jesse Furman out without dissent. Furman is a 
truly excellent figure. He clerked for the Supreme Court, has the 
support of all the clerks with whom he served, including those from 
Scalia and Rehnquist, on both sides of the aisle.
  He worked for Attorney General Mukasey and clerked for Mr. Mukasey. 
He is truly a moderate. He could be nominated just as easily in the 
grand tradition of judicial integrity by someone from this side of the 
aisle or that side of the aisle.
  If we cannot approve Mr. Furman and have a close-to-unanimous vote on 
him, I do not know on whom we can because he is such an excellent, 
thoughtful, and moderate judge. So I hope all of my colleagues on both 
sides of the aisle will vote for him. It may begin to mark a new wave, 
at least, in dealing with district court judges.
  Mrs. GILLIBRAND. Mr. President, I would like to offer my support for 
the confirmation of a highly qualified and accomplished New Yorker, 
Jesse Furman who has been nominated by President Obama to serve the 
United States District Court for the Southern District of New York.
  Jesse is currently the Assistant United States Attorney in the 
Southern District of New York where he has served as Deputy Chief 
Appellate Attorney since 2009. Previously, he worked in the Office of 
the Attorney General at the Department of Justice where he served as 
Counselor to the Attorney General. He has also worked in the law firm 
of Wiggin & Dana. From 2002 2003, he clerked for the Honorable David H. 
Souter of the Supreme Court and from 1999 2000 for the Honorable Jose 
A. Cabranes of the United States Court of Appeals for the Second 
Circuit. He also served as a law clerk for the Honorable Michael B. 
Mukasey of the United States District Court for the Southern District 
of New York.
  Jesse received his law degree from Yale Law School in 1998 and his 
bachelor's degree from Harvard University in 1994 where he graduated 
summa cum laude. He also served as a Henry Fellow at Oxford University.
  Because of Jesse's extensive legal career, I am more than confident 
that he has the experience to serve the Southern District of New York 
with great competence and fairness.
  While Jesse is more than qualified to be appointed to a judgeship, 
his confirmation has been delayed for 5 months by Senate Republicans. 
What makes this puzzling is the fact that Jesse's nomination was 
reported unanimously by the Judiciary Committee without opposition from 
a single member of the Committee. Not a single member. This is the 
ninth judicial nominee that Majority Leader Reid has had to file 
cloture on to end a Republican filibuster and secure an up or down 
vote. It should be noted that Senate Republicans have yet to explain 
why they refused to consent to Jesse's nomination.
  In addition, Jesse's nomination is supported by numerous 
conservatives including former United States Attorney General under 
G.W. Bush Michael Mukasey who stated: ``My view of him is perhaps best 
reflected in the fact that he is the first person I sought to hire 
after I was confirmed as Attorney General . . . his advice was 
unerringly sound and his help indispensable.''
  Furthermore, former Supreme Court clerks who served at the same time 
as Mr. Furman, including clerks for conservative Justices such as Chief 
Justice Rehnquist, Justice Thomas, and Justice Scalia stated that: 
``Mr. Furman has brought tremendous intellectual rigor, an open mind, 
and good common sense.''
  I want to remind my colleagues that Senate Democrats worked to 
confirm 100 of President Bush's judicial nominees in 17 months. 
Blocking Jesse's nomination is highly unusual and incredibly 
disappointing and quite frankly, irresponsible.
  I want to thank Chairman Leahy for his leadership on the Judiciary 
Committee in the effort to confirm highly

[[Page S888]]

qualified individuals such as Jesse Furman. Jesse's commitment to 
upholding fairness within our legal system is well regarded and highly 
respected. I strongly support his nomination and believe that if 
confirmed, Jesse will be an excellent Judge to serve on the United 
States District Court for the Southern District of New York and I urge 
my colleagues to vote favorably for his confirmation.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Republican leader is 
recognized.
  Mr. McCONNELL. Mr. President, I yield back the remainder of our time.
  The ACTING PRESIDENT pro tempore. All time is yielded back.
  The question is, Will the Senate advise and consent to the nomination 
of Jesse M. Furman, of New York to be United States District Judge for 
the Southern District of New York?


 =========================== NOTE =========================== 

  
  On page S888, February 17, 2012, the Record reads: . . . advise 
and consent to the nomination of Jesee M. Furman . . .
  
  The online Record has been corrected to read: . . . advise and 
consent to the nomination of Jesse M. Furman . . .


 ========================= END NOTE ========================= 

  Mr. TOOMEY. 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 legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. 
Bingaman) is necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Illinois (Mr. Kirk), the Senator from Kansas (Mr. Roberts), and 
the Senator from Louisiana (Mr. Vitter).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 62, nays 34, as follows:

                       [Rollcall Vote No. 21 Ex.]

                                YEAS--62

     Akaka
     Alexander
     Baucus
     Begich
     Bennet
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Corker
     Durbin
     Feinstein
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--34

     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Enzi
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     Lugar
     McConnell
     Moran
     Paul
     Portman
     Risch
     Rubio
     Shelby
     Thune
     Toomey
     Wicker

                             NOT VOTING--4

     Bingaman
     Kirk
     Roberts
     Vitter
  The nomination was confirmed.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
motion to reconsider is considered made and laid upon the table. The 
President will be immediately notified of the Senate's action.

                          ____________________