[Congressional Record Volume 158, Number 43 (Thursday, March 15, 2012)]
[Senate]
[Pages S1711-S1714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF GINA MARIE GROH TO BE UNITED STATES DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF WEST VIRGINIA
______
NOMINATION OF MICHAEL WALTER FITZGERALD TO BE UNITED STATES DISTRICT
JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nominations,
which the clerk will report.
The assistant bill clerk read the nominations of Gina Marie Groh, of
West Virginia, to be United States District Judge for the Northern
District of West Virginia; and Michael Walter Fitzgerald, of
California, to be United States District Judge for the Central District
of California.
The PRESIDING OFFICER. Under the previous order, there will be 15
minutes for debate equally divided in the usual form.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, what is the order? I had understood I was
to be recognized at 1:45. Am I incorrect?
The PRESIDING OFFICER. There will be 15 minutes for debate equally
divided in the usual form.
Mr. LEAHY. I am pleased that the Majority Leader and the Republican
leader came to an understanding yesterday and a path forward so that we
can finally consider the two judicial nominations the Senate will vote
on today. With a judicial vacancies crisis that has lasted years, and
nearly one in 10 judgeships across the Nation vacant, the Senate needs
to continue to work to have a positive impact and reduce judicial
vacancies significantly before the end of the year.
In light of the agreement reached between the leaders, the Senate
will finally be allowed to consider the nomination of Judge Gina Groh
of West Virginia. Judge Gina Groh currently serves as a Circuit Judge
in the 23rd Judicial Circuit for the State of West Virginia, the first
female circuit judge in the eastern panhandle region of West Virginia.
She is one of only three women serving as a circuit judge throughout
the state. Judge Groh was nominated to the state court in 2006 on the
recommendation of a bipartisan merit selection panel, and won a
successful retention election in 2008. Prior to joining the bench,
Judge Groh served for eight years as state prosecutor and nine years in
private practice. Her nomination, which has the support of both of West
Virginia's Senators, Senator Rockefeller and Senator Manchin, and was
reported with the support of every Democrat and every Republican on the
Judiciary Committee last October. She has been waiting for this
confirmation vote for more than five months while her nomination has
been stalled along with so many others.
The Senate will also finally be able to consider the nomination of
Michael Fitzgerald to fill a judicial emergency vacancy in the Central
District of California. His nomination has the strong support of his
home state Senators, Senators Feinstein and Boxer. If confirmed, Mr.
Fitzgerald will be the first openly gay man confirmed to the Federal
bench in the state of California. Mr. Fitzgerald has worked in private
practice for more than two decades, and before that, served as a
Federal prosecutor. The ABA's Standing Committee on the Federal
Judiciary unanimously rated him ``well qualified'' to serve on the U.S.
District Court, its highest possible rating. His nomination was
reported unanimously by the Judiciary Committee last November. He has
been waiting four and one half months for this vote.
Unlike the 57 of President Bush's District Court nominations
confirmed within a week of being reported by the Judiciary Committee
during President Bush's first term, these qualified, consensus nominees
have been needlessly stalled from final consideration. The application
of the ``new standard'' the junior Senator from Utah conceded
Republicans are applying to President Obama's nominees continues to
hurt the people of West Virginia and California, who should not have to
wait any longer for judges to fill these important Federal trial court
vacancies.
The nominations of Judge Groh and Mr. Fitzgerald are two of the 22
circuit and district court nominations ready for Senate consideration
and a final confirmation vote. They were all reported favorably by the
Judiciary Committee after thorough review. All but a handful are by any
measure consensus nominations. There was never any good reason for the
Senate not to proceed to votes on these nominations. It should not have
taken cloture petitions to get agreement to schedule votes on these
qualified, consensus judicial nominations. In addition to the two
nominations we consider today, another 10 of the nominations on which
agreement has now been reached have been stalled for months and were
reported last year.
Among the nominees included in the leaders' agreement are two
outstanding
[[Page S1712]]
women nominated to fill vacancies on important circuit courts that have
been delayed since last year--Stephanie Dawn Thacker of West Virginia,
nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of
California, nominated to fill one of the many judicial emergency
vacancies on the Ninth Circuit. Ms. Thacker, an experienced litigator
and prosecutor, has the strong support of her home state Senators,
Senators Rockefeller and Manchin. Judge Nguyen, whose family fled to
the United States in 1975 after the fall of South Vietnam, was
confirmed unanimously to the district court in 2009 and would become
the first Asian Pacific American woman to serve on a U.S. Court of
Appeals. Both were reported unanimously by the Judiciary Committee last
year and both should be confirmed by the Senate without additional
damaging delays.
All 22 of the nominees awaiting a vote by the Senate are qualified
judicial nominees. They are nominees whose judicial philosophy is well
within the mainstream. These are all nominees supported by their home
state Senators, both Republican and Democratic. The consequence of
these months of delays is borne by the nearly 160 million Americans who
live in districts and circuits with vacancies that could be filled as
soon as Senate Republicans agree to up or down votes on the 22 judicial
nominations currently before the Senate awaiting a confirmation vote.
We must continue with the pattern set by yesterday's agreement to
make progress beyond the 14 nominations in that agreement and beyond
the 22 nominations currently on the calendar. There are another eight
judicial nominees working who have had hearings and are working their
way through the Committee process. In addition, there are another 11
nominations on which the Committee should be holding additional
hearings during the next several weeks. By working steadily and by
continuing the resumption of the regular consideration of judicial
nominations I hope the understanding between the leaders signals, we
can do as we did in 2004 and 2008 to ensure that the Federal courts
have the judges they need to provide justice for all Americans without
needless delay. In those presidential election years, we worked
together to reduce judicial vacancies to the lowest levels in decades.
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 turn to
their courts for justice 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 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.
We 100 Senators stand in the shoes of over 300 million Americans. It
is good to see the Senate agreeing to end the partisan stalling and
schedule votes on these long-delayed and much-needed judges.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, this week the judicial confirmation
process was a bit off track. The 17 threatened cloture motion votes
were unnecessary. I am pleased the majority leader determined to not
move forward with that plan.
The Senate has now returned to its regular order of processing
judicial nominations in a careful and deliberate manner--just exactly
what we ought to do when we are talking about confirming people to
lifetime appointments. This means nominees are called up, debated, and
voted upon, just as we have been doing. In fact, we have done that 131
times for President Obama's judicial nominees. Of course, on rare
occasions, as within the traditional rules and practices of the Senate,
there will be difficulty in moving forward with consent to proceed on
just a very few.
So I view what happened yesterday not as some deal but as a rejection
of a political stunt in favor of returning to regular order, as we are
doing today. I have worked with the chairman and members of the
Judiciary Committee, as well as my colleagues throughout the Senate, to
ensure nominees are treated fairly, and I will continue to do so.
In the meantime, I am pleased the Senate has turned to the JOBS bill.
It is imperative that the Senate keep its focus on what the people back
at the grassroots level think we ought to be working on--jobs, the
economy, energy, and other critical issues facing our Nation.
Today we turn to two judicial nominations under regular order and the
procedure of the Senate: Gina Groh, who is nominated to be a U.S.
district judge for the Northern District of West Virginia, and Michael
Fitzgerald, who is nominated to be a U.S. district judge for the
Central District of California.
Earlier this week, I heard remarks blaming the judicial vacancy rate
on Republican obstructions. What was failed to be discussed--not even
mentioned--was that 44 of the judicial vacancies have no nominee. Of
the 35 judicial vacancies designated as judicial emergencies, the
President has failed to submit a nomination for 19 of those seats. So
what about the other 16? What about the other 39 of the 83 I just
mentioned? It is a fact of life; we can't proceed to process judicial
nominations if the President doesn't send them to us. So the President
needs to hurry if he wants to get some consideration.
That has been the pattern for most of this administration--failure or
delay in submitting nominations to the Senate. For example, look at the
nomination of Gina Groh, a nomination we are considering today. Yes,
her nomination has been before the Senate for 5 months, but this seat
became vacant in December 2006. President Bush submitted a nomination
for this seat on May 24, 2007. That nominee never even had a hearing
but languished in committee for 19 months before being returned to the
President. This is just 1 of 53 nominees of President Bush's who were
subjected to what some have characterized as a ``pocket filibuster'' or
otherwise went unconfirmed.
Even after President Obama's election, it took until May 19, 2011,
for him to nominate Ms. Groh. The President took 848 days to submit the
nomination--nearly 2 years and 4 months. I have to ask, Where was the
nomination? Where was the outrage of the other party during all of this
time of dillydallying around at the White House?
Again, we are moving forward under regular order and procedures of
the Senate. This year, we have been in session for about 28 days,
including today. During that time, we have confirmed nine judges. That
is an average of about one confirmation for every 3 days. With the
confirmation today, the Senate will have confirmed 72 percent of
President Obama's judicial nominations.
Gina Marie Groh is nominated to be United States District Judge for
the Northern District of West Virginia. Judge Groh graduated summa cum
laude with a B.A. from Shepherd University in 1986, and with a J.D.
from West Virginia University College of Law in 1989. From 1989 to
1998, she worked as a litigation associate for three separate firms.
From 1989 to 1991, she was with Steptoe & Johnson and then she moved to
Mell, Brownwell & Baker, where she worked until 1995. Finally she
worked at Semmes, Bowen, & Semmes until 1998. During this period, her
practice primarily involved civil litigation, including workers
compensation and personal injury defense.
From 1998 to 2006, she served as an Assistant Prosecuting Attorney.
She served in this capacity with the Berkeley County Prosecuting
Attorney's Office until 2002 and then with the Jefferson County
Prosecuting Attorney's Office. As an assistant prosecutor, she
primarily prosecuted felony cases on behalf of the State of West
Virginia. While with the Jefferson County Attorney's Office, she also
represented the county government in civil matters. While an assistant
county prosecutor, she estimates she tried about 500 cases to verdict.
In December 2006, Governor Manchin appointed Judge Groh as a circuit
judge in the 23rd Judicial Circuit of West Virginia. In November 2008
she was elected to the same position. As a judge serving on a court of
general jurisdiction, she presides over a variety of civil and criminal
cases and manages the grand jury in Morgan and Jefferson counties,
which meets three
[[Page S1713]]
times per year in each county. She estimates that she has presided over
93 cases that have either gone to verdict or judgment. In addition, she
has issued orders in over 3,400 cases.
Michael Fitzgerald is nominated to be United States District Judge
for the Central District of California. He is a 1981 graduate of
Harvard University and received his J.D. in 1985 from the University of
California, Berkley--Boalt Hall--School of Law. After graduating from
law school, Mr. Fitzgerald clerked for the Honorable Irving R. Kaufman
on the United States Court of Appeals for the Second Circuit.
From 1986 1987, he was an associate at O'Donnell & Gordon where he
represented individuals and small companies in civil litigation. In
1988, he became an Assistant United States Attorney where he served on
the Organized Crime and Drug Enforcement Task Force/Major. With the
task force he primarily prosecuted cocaine rings. He also worked with a
money laundering task force comprised of IRS criminal agents and Los
Angeles Police Department narcotics officers. From 1991 1995 he worked
as an associate at Heller, Ehrman, White & McAuliffe LLP, on commercial
litigation.
In 1995, Mr. Fitzgerald joined the Law Offices of Robert L. Corbin,
P.C. as an associate attorney, and became a partner in 1998, when the
firm was renamed Corbin, Fitzgerald & Athey LLP. Initially he
represented small businesses and individuals in small to medium-sized
civil cases, as well as a variety of criminal cases in Los Angeles
Superior Court. He also was involved in federal civil and criminal
cases. For the past six years, the focus of his firm has been
representing clients who are under investigation by federal agencies.
These investigations have concerned securities, defense contracting,
environmental law, health care, antitrust, tax and financial crisis.
Mr. Fitzgerald reports that he has appeared in court regularly for
most of his career. However, since 2004, he has only appeared in court
occasionally. He has tried 26 cases to verdict.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, when I hear concerns that the Republican
delays are all the fault of President Obama, it sort of makes me think
of some of the dialogue from the movie ``Casablanca''. I should tell my
colleagues that there are 83 vacancies, sure. Several of them are
without a nomination because this President is trying to work with home
State Senators, including 24 vacancies involving a Republican home
State Senator who hasn't agreed to anybody. There are seven nominations
on which the Senate Judiciary Committee cannot proceed because
Republican Senators haven't returned blue slips indicating their
support. We had somebody else who we were going to consider in
Committee. Two Republican Senators had returned blue slips; they
withdrew them and we had to take that name off the agenda.
So we try to protect Republicans' rights in the committee and,
suddenly, we are at fault because they are blocking people who have
gone through unanimously. Well, none of these complaints would give any
excuse for failure to move on nominees that went through with every
single Republican, every single Democrat voting for them.
Instead of being voted on in a week, as 57 did during President
Bush's first term, these nominees sit here for month after month after
month.
Mrs. FEINSTEIN. Mr. President, I rise to speak today on the
nomination of Michael Walter Fitzgerald, a highly qualified nominee to
the United States District Court for the Central District of
California.
The vacancy Mr. Fitzgerald would fill has been declared a judicial
emergency by the Judicial Conference of the United States. The Central
District is the ninth-busiest court in the country in terms of filings
per judgeship, and it has several vacancies that need to be filled.
I wish it had not taken four and a half months to see Mr. Fitzgerald
confirmed, but I am very grateful that the Senate is able to make
progress on his nomination today.
I urge my colleagues to support this nomination.
Mr. Fitzgerald was born in Los Angeles in 1959 and attended
California's public schools. He received a scholarship to attend
Harvard College, from which he graduated magna cum laude in 1981.
After graduating from Harvard, Mr. Fitzgerald taught at Anaheim High
School. He then attended Boalt Hall Law School at the University of
California, Berkeley, where he was managing editor of the Industrial
Relations Law Journal and graduated Order of the Coif in 1985.
Following law school, he clerked for Judge Irving R. Kaufman on the
U.S. Court of Appeals for the Second Circuit.
Mr. Fitzgerald has over 25 years of experience practicing law. After
one year in private practice he became an Assistant United States
Attorney in the Central District of California, where he served from
1988 through 1991.
During that time, he served on the Organized Crime and Drug
Enforcement Task Force and with the Major Narcotics Section. He led an
investigation that resulted in the seizure of 2,241 pounds of cocaine
and the conviction of a major drug trafficking kingpin.
Since his service as a federal prosecutor, Mr. Fitzgerald has worked
as an attorney in private practice, first at the law firm Heller Ehrman
White & McAuliffe and now at Corbin, Fitzgerald, and Athey LLP.
He has represented plaintiffs and defendants in civil cases, as well
as criminal defendants. He also has represented major corporations and
corporate officials in investigations by the Securities and Exchange
Commission and the Department of Justice. For example, he represented a
senior Boeing manager in a Federal grand jury investigation, as well as
Bank of America.
He also has been active in pro bono work. For example, Mr. Fitzgerald
represented an FBI special agent, Frank Buttino, who had security
clearance revoked after his sexual orientation was revealed to his FBI
superiors. The case resulted in a settlement, in which the FBI revoked
its policy of treating sexual orientation as a negative factor in
security clearance determinations.
Mr. Fitzgerald also served as a deputy counsel on the Rampart
Independent Review Panel, which was appointed by the Los Angeles Police
Commission to investigate a major corruption scandal in the Rampart
Division of the Los Angeles Police Department. He also served as a
counsel to the Special Advisor to the Webster Commission, which
investigated the L.A.P.D.'s response to the L.A. riots in 1992.
In short, Mr. Fitzgerald has an impressive record--strong academic
credentials, an appellate clerkship, service as a Federal prosecutor,
and over two decades in private practice.
Mr. Fitzgerald is also the first openly gay nominee to a California
Federal Court--an important milestone on the road to equality.
I am confident he will be a superb addition to the district court,
and I urge my colleagues to support his nomination.
Mr. LEAHY. Mr. President, I believe we have reached the time for the
vote. Am I correct?
The PRESIDING OFFICER (Mr. Sanders). The Senator is correct.
The question is, Will the Senate advise and consent to the nomination
of Gina Marie Groh, of West Virginia, to be United States District
Judge for the Northern District of West Virginia?
Mr. LEAHY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant bill clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander), the Senator from Utah (Mr. Hatch), and
the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 95, nays 2, as follows:
[Rollcall Vote No. 49 Ex.]
YEAS--95
Akaka
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
[[Page S1714]]
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
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
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--2
DeMint
Lee
NOT VOTING--3
Alexander
Hatch
Kirk
The nomination was confirmed.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Mr. President, first of all, we had a good week. We have
worked together on issues and gotten a lot done. We have one more vote.
That will be the last vote this week. The next vote will be Tuesday
before the caucus.
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the nomination of Michael Walter
Fitzgerald, of California, to be U.S. District Judge for the Central
District of California.
Mr. REID. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. 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 Tennessee (Mr. Alexander), the Senator from Utah (Mr. Hatch), and
the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea.''
The result was announced--yeas 91, nays 6, as follows:
[Rollcall Vote No. 50 Ex.]
YEAS--91
Akaka
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Heller
Hoeven
Hutchison
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--6
Blunt
DeMint
Inhofe
Lee
Paul
Vitter
NOT VOTING--3
Alexander
Hatch
Kirk
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motions to
reconsider are considered made and laid upon the table.
The President will be immediately notified of the Senate's action.
____________________