[Congressional Record Volume 158, Number 51 (Wednesday, March 28, 2012)]
[Senate]
[Pages S2149-S2154]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF MIRANDA DU TO BE UNITED STATES DISTRICT JUDGE FOR THE
DISTRICT OF NEVADA
______
SUSIE MORGAN TO BE UNITED STATES DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF LOUISIANA
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 legislative clerk read the nominations of Miranda Du, of Nevada,
to be United States District Judge for the District of Nevada, and
Susie Morgan, of Louisiana, to be United States District Judge for the
Eastern District of Louisiana.
The PRESIDING OFFICER. Under the previous order, there will be 60
minutes of debate equally divided and controlled in the usual form.
Mr. LEAHY. Madam President, I would ask unanimous consent that the
time be divided equally but am I correct if we did the full 60 minutes,
we would start the first vote at 5:35 p.m.?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. Madam President, I ask unanimous consent that we divide
the time equally between now and 5:30 and the vote be at 5:30.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, today the Senate will finally vote on the
nominations of Miranda Du to fill a judicial emergency vacancy in the
U.S. District Court for the District of Nevada and Susie Morgan to fill
a judicial vacancy in the U.S. District Court for the Eastern District
of Louisiana. Both nominations have the bipartisan support of their
home state Senators, and were reported by the Judiciary Committee over
4 months ago. The Senate is still only considering judicial nominations
that could and should have been confirmed last year. The judicial
vacancy rate remains nearly twice what it was at this point in the
first term of President George W. Bush.
Last week, I noted an article about the ``crushing caseload'' that
the Federal courts in Arizona currently face. In that article, the
Chief Judge of Arizona's Federal trial court noted that they are in
``dire circumstances'' and that they are ``under water'' from all the
cases on their docket. Like the district court in Arizona, the one in
Nevada is also in desperate need of judges, as evidenced by its
designation as a judicial emergency. As that same article noted, an
insufficiency of judges ``lessens the quality of justice for all
parties involved.'' This is why it is so crucial that we confirm these
nominees as soon as possible.
Delay is harmful for everyone. An editorial from the Tuscaloosa News
last week stated that ``[D]elays are objectionable in themselves: They
deprive the courts of needed personnel, slow the administration of
justice and deter well-qualified candidates from agreeing to be
considered for the bench.'' I ask unanimous consent to include a copy
of the article, entitled ``Congress needs to stop judicial partisan
games,'' in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. The needless 4-month delay in the consideration of these
nominations is another example of the delays that have been caused by
Senate Republicans' unwillingness to agree to schedule these
nominations for votes last year. As the editorial from the Tuscaloosa
News noted: ``[T]he determination of Senate Republicans to delay
President Barack Obama's judicial nominees--even those who have won
bipartisan support from the Judiciary Committee--is emblematic of the
[[Page S2150]]
polarization that also has sabotaged efforts of the two parties to work
together on numerous other fronts.'' The editorial concludes by urging
that there be ``no more partisan games.''
A recent memorandum from the Congressional Research Service confirms
what we have long known: The delay and obstruction from Senate
Republicans have resulted in President Obama's judicial nominees
waiting much longer for a floor vote than judicial nominees under the
past four Presidents. These tactics, of course, have resulted in a much
lower number and percentage of confirmed judicial nominees under
President Obama--despite the fact that President Obama's judicial
nominees have by and large been consensus nominees.
The consequences of these months of delays are borne by the more than
150 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 17 judicial nominations currently before the Senate. 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 3 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.
Today, we can finally end the needless delays on these two qualified
nominees. Miranda Du was born in Vietnam. She left the country with her
family by boat in 1978 and immigrated to the United States after
spending a year in refugee camps in Malaysia. If confirmed, she will
become the first Asian Pacific American appointed to the Federal bench
in Nevada. Both of Nevada's Senators, the Majority Leader and
Republican Senator Dean Heller, support Ms. Du's nomination. Senator
Heller has said that Ms. Du will ``make an outstanding district court
judge.'' She also has the support of the Republican Governor of Nevada,
Brian Sandoval; the Republican Lieutenant Governor of Nevada, Brian
Krolicki; and the Republican Mayor of Reno, Robert Cashell; each of
whom has personally worked with Ms. Du. I ask unanimous consent to have
printed in the Record a copy of the letters of support from these
individuals at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. LEAHY. Governor Sandoval fully supports Ms. Du's nomination. In
his recommendation letter, he wrote that when Ms. Du appeared before
him when he was a judge, she ``was always well prepared and represented
her clients with integrity and distinction.'' He further stated that
she had his ``full support'' for confirmation as a Federal district
judge. Ironically, he was the judge in the one case on which
Republicans rely to criticize the nominee. As the judge, he had
overlooked the jurisdictional argument when initially deciding against
dismissing the case. The Magistrate Judge on the case issued sanctions,
but Governor Sandoval ultimately struck the motion for sanctions as
moot when Ms. Du and her legal team resolved the dispute with the
third-party. In addition, Ms. Du testified candidly about the incident
during her Committee hearing and in her response to the Questions for
the Record, acknowledged that she had ``learned a great deal from this
experience.'' Incidents like this have never held up a nomination
before in the past, and it should certainly not hold up Ms. Du's
nomination. President Obama's nominees should not be held to a
different or new standard.
She has spent her 17-year legal career in private practice as a
partner at a law firm in Reno, Nevada. She currently serves as chair of
the firm's Employment & Labor Law Group. Ms. Du's story is compelling.
She was selected by Super Lawyers as a 2009 ``Mountain States Rising
Star'' and was named as one of the ``Top 20 Under 40'' Young
Professionals in the Reno-Tahoe Area in 2008. That she is being opposed
because she and her legal team filed a third-party complaint on behalf
of a client in one case is to hold her to a new standard than Senate
Republicans have utilized with other nominees and other Presidents in
the past.
The other nominee we consider today is Susie Morgan. She has worked
in private practice for 30 years. Her nomination has the bipartisan
support of Louisiana's Senators, Democratic Senator Mary Landrieu and
Republican Senator David Vitter. Following her law school graduation,
Ms. Morgan clerked for Chief Judge Henry A. Politz of the U.S. Court of
Appeals for the Fifth Circuit. She was unanimously rated as qualified
by the American Bar Association's Standing Committee on the Federal
Judiciary to serve as a Federal judge in the Eastern District of
Louisiana. Her nomination was approved unanimously by the Judiciary
Committee last November.
The Senate needs to make real progress, which means going beyond the
nominations included in the agreement between Senate leaders to include
the 17 judicial nominations currently before the Senate for a final
vote and the eight judicial nominees who have had hearings and are
working their way through the Committee process. There are another 11
nominations on which the Committee should be holding additional
hearings during the next several weeks.
Exhibit 1
[From Tuscaloosanews.com, Mar. 22, 2012]
Editorial: Congress Needs To Stop Judicial Partisan Games
Delays in the confirmation of federal judges aren't
uppermost in Americans' minds when they complain about
partisan dysfunction in Congress. But the determination of
Senate Republicans to delay President Barack Obama's judicial
nominees--even those who have won bipartisan support from the
Judiciary Committee--is emblematic of the polarization that
also has sabotaged efforts of the two parties to work
together on numerous other fronts. And the delays are
objectionable in themselves: They deprive the courts of
needed personnel, slow the administration of justice and
deter well-qualified candidates from agreeing to be
considered for the bench.
So it's a hopeful sign that Republicans have agreed to vote
on 14 judicial nominations by May 7. It would be heartening
to report that the Republicans agreed to the votes because
they repented of the obstructionism of some of their members,
but in fact their agreement followed a power play by Senate
Majority Leader Harry Reid, D Nev., who filed cloture motions
to try to force votes on 17 nominations.
Rather irrelevantly, Republicans had complained that Reid
hadn't made judicial confirmations a priority. Now he has.
Republicans also have faulted the Obama administration for
being slow to fill vacancies on district and appeals courts.
That is a fair criticism. There are 81 vacancies but only 39
pending nominees (including two for future vacancies). But it
is Republicans who have withheld the unanimous consent
necessary for nominations already approved by the Judiciary
Committee to move forward expeditiously and without prolonged
debate. The latest pretext for delay was the desire to
protest Obama's recess appointments to federal agencies, but
Republicans have been reluctant to allow Democrats to score a
political point by promptly confirming Obama's judicial
nominees.
When Reid first proposed swift action on the nominations,
Senate Minority Leader Mitch McConnell, R Ky., complained:
``This is just a very transparent attempt to try to slam dunk
the minority and make them look like they are obstructing
things they aren't obstructing.'' But then McConnell added
that ``this is going to, of course, be greeted with
resistance.'' In other words, if you accuse us of being
obstructionist, we'll make you pay by being obstructionist.
This is partisanship at its pettiest.
The White House complains that the Senate has taken four to
five times as long to confirm Obama's nominees as it did to
approve George W. Bush's. Nevertheless, several of Bush's
nominations were delayed or derailed by Senate Democrats,
including eminently qualified appeals court nominees whom
they feared might be potential Republican appointees to the
Supreme Court.
Controversial or not, every judicial nominee deserves
serious consideration by the Senate and an expeditious up-or-
down vote--and no more partisan games.
____
Exhibit 2
Office of the Governor,
Las Vegas, NV, August 22, 2011.
Re Recommendation of Miranda Du
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Senator Leahy: It is with great pleasure that I
recommend Miranda Du for the United States District Court
Judge, District of Nevada.
As long as I have known Miranda, she has exhibited great
character and is well respected in the legal community.
During my tenure as a U.S. District Judge, each time Miranda
appeared before me, she was always well prepared and
represented her clients with integrity and distinction.
[[Page S2151]]
Miranda Du will make a fine U.S. District Judge and
therefore has my full support. Please feel free to contact me
if you have any questions. Thank you for your consideration.
Sincere regards,
Brian Sandoval,
Governor.
____
Office of the Lieutenant Governor,
Carson City, NV, August 23, 2011.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Senator Leahy: I am writing in enthusiastic support of
Miranda Du's nomination to the United States District Court
for the District of Nevada.
As Nevada's Lieutenant Governor, I have the privilege of
serving as Chairman of the Nevada Commission on Economic
Development (NCED), whose mission is to promote a robust
diversified and prosperous economy for Nevada. In this
capacity, I have served with Ms. Du since she was appointed
to the Commission in July 2008.
As a NCED commissioner, Ms. Du has demonstrated many
qualities that will make her an ideal Federal District Court
Judge. She is intelligent, inquisitive, reliable and
dedicated. She is an active and involved commission, always
prepared and informed, and she is not afraid to ask tough
questions. She conducts herself in a professional and
dignified manner. I think that both Nevada and the United
States will benefit from Ms. Du's appointment to the Federal
Bench and I strongly encourage the Senate to confirm Ms. Du.
Best regards,
Brian K. Krolicki,
Nevada Lieutenant Governor.
____
City of Reno,
Reno, NV, August 12, 2011.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Hon. Chuck Grassley,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Senators Leahy and Grassley: I am writing in support
of the nomination of Nevada Attorney Miranda Du to the United
States District Court for the District of Nevada.
I have known Ms. Du for quite some time. For the last eight
years, I have had the opportunity to observe her legal skills
and temperament primarily in my role as a member of the Board
of Directors of the Truckee Meadows Water Authority
(``TMWA''), which is partly owned by the City of Reno. Ms. Du
has represented TMWA on several matters, and she has been
both effective and professional in that representation. Ms.
Du is intelligent, articulate and even-tempered. She is
direct and always seems prepared in responding to questions
from the TMWA Board. I believe she will be a great addition
to our federal bench. I strongly recommend her for
confirmation.
Sincerely,
Robert A. Cashell, Sr.,
Mayor.
Mr. LEAHY. Madam President, continuing the time that has been
allotted to me, I ask unanimous consent that the following statement
appear as though in morning business, but I will utilize the time now
allotted to me.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Leahy are printed in today's Record under
``Morning Business.'')
Mr. LEAHY. Madam President, I suggest the absence of a quorum, with
the time to be equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so
ordered.
Mr. GRASSLEY. I want to ask, Mr. President, if it is appropriate for
me to speak on the judges who will be up for a vote?
The PRESIDING OFFICER. It is.
Mr. GRASSLEY. Mr. President, again, we are moving forward under the
regular order and procedures of the Senate. This year, we have been in
session for about 35 days, including today. During that time we will
have confirmed 14 judges. That is an average of better than one
confirmation for every 3 days. With the confirmations today, the Senate
will have confirmed nearly 75 percent of President Obama's article III
judicial nominations.
Despite the progress we are making, we still hear complaints about
the judicial vacancy rate. We are filling those vacancies. But again, I
would remind my colleagues that of the 81 current vacancies, 47 have no
nominee. That is 58 percent of vacancies with no nominee.
So I am growing a bit weary of the vacancy rate being blamed on
Senate Republicans.
I have spoken on numerous occasions about the seriousness with which
I undertake the advice and consent function of the Senate, as I know we
all do. Our inquiry of the qualifications of nominees must be more than
intelligence, a pleasant personality, an inspirational life story, or a
prestigious clerkship.
When I became ranking member on the Senate Judiciary Committee, I
articulated my standards for judicial nominees. I want to ensure that
the men and women who are appointed to a lifetime position in the
Federal judiciary are qualified to serve. Factors I consider important
include intellectual ability, respect for the Constitution, fidelity to
the law, personal integrity, appropriate judicial temperament, and
professional competence.
In applying these standards, I have demonstrated good faith in
ensuring fair consideration of judicial nominees. I have worked with
the majority to confirm consensus nominees.
In fact, of the 138 judges confirmed so far, I have voted in favor of
over 90 percent of President Obama's judicial nominees. This includes
supporting 100 of the 108 district judges we have confirmed during
President Obama's term of office.
However, today on the agenda is a nominee that in my judgment does
not measure up to the criteria I have outlined. Ms. Miranda Du was
nominated to be a U.S. district judge for the District of Nevada on
August 2, 2011.
We have heard Ms. Du's life story--leaving Vietnam following the war;
living in refugee camps with her family; coming to America at a young
age; obtaining an education and establishing herself in a respectable
career. She has risen above disadvantages that most of us can't
imagine. This is a great success story, and we congratulate her for
these notable accomplishments.
However, this is not sufficient for confirmation to a lifetime
appointment as a Federal judge. We all can think of similar success
stories. Miguel Estrada immigrated to America at a young age, graduated
from Harvard, clerked at the Supreme Court, and had a prestigious legal
career. His confirmation to the Federal court was defeated by a
Democratic filibuster.
Justice Thomas grew up in humble circumstances, rose above his
disadvantaged background to graduate from Yale Law School, faced
discrimination in legal hiring, but went on to an illustrious public
service career. He was barely confirmed to the Supreme Court.
Janice Rogers Brown, an African-American female, was the daughter of
sharecroppers. Overcoming these circumstances, she graduated from UCLA
School of Law working her own way through while being a single mother.
She served in California State government and on the California Supreme
Court. Her Federal judicial nomination faced a Democratic filibuster
before she was finally confirmed by a vote of 56 to 43.
I bring up these examples to point out that many individuals we
consider for judicial positions have overcome difficult circumstances
in life. Most are examples of the American dream. Some are confirmed,
others are not. But in each case, the gender or race of the individual,
or the particular life story was not part of the consideration of
whether or not to confirm to a lifetime appointment. So while I think
Ms. Du's accomplishments are admirable, they are not the basis for
evaluating her qualifications to serve as a Federal district judge.
The relevant factors for me are her ability and professional
competence. In those areas, she does not meet the standards I would
consider necessary for a Federal judge.
I would note that the ABA has rated Ms. Du with a partial ``not
qualified'' rating. She states she was ``involved in'' four jury trials
and has limited criminal law experience. As I have stated before, this
is no place for on-the-job training.
A mere 16 legislative days after her nomination, Ms. Du appeared at
her nominations hearing. At that hearing, she was asked about a case in
which she was lead counsel. Ms. Du was the
[[Page S2152]]
partner in charge of handling the case of Woods v. Truckee Meadows
Water Authority.
In that case, she filed a motion to dismiss the original complaint.
But she failed to raise the lack of subject matter jurisdiction as a
reason to dismiss the case. The court, therefore, denied her motion.
Ms. Du then filed a third-party complaint against the local union. But
the union's counsel recognized that there was no subject matter
jurisdiction. Therefore, they advised Ms. Du, in a six-page letter,
that the court lacked subject matter jurisdiction. The union,
therefore, warned Ms. Du that they would seek sanctions if Ms. Du did
not withdraw her complaint. Rather than recognizing her mistake and
filing a second motion to dismiss, Ms. Du went forward with the third-
party complaint. In response, the union proceeded exactly as they said
they would: They filed a motion to dismiss and filed for sanctions.
The district court agreed there was no subject matter jurisdiction
and dismissed the action. In addressing the sanctions issue, the court
stated:
Having reviewed the record and considered arguments of
counsel at the hearing on this motion, the court finds that .
. . TMWA's counsel acted recklessly. . . .
Let me remind you, TMWA's counsel was the nominee, Ms. Du. The court
said she acted recklessly. The court went on to state that TMWA--
referring to Ms. Du's client--``has not advanced a legitimate, good
faith reason for bringing the Union into this litigation.''
Accordingly, the court concluded sanctions were warranted.
At her hearing, Senator Lee asked her if she agreed with the court's
assessment that her conduct was reckless. She stated that she did not
believe that she was reckless.
In written follow-up questions, I asked her again about the court
finding her reckless, and she responded that she disagreed with the
magistrate judge's finding. Let me be clear: The finding of reckless
action on her part was not a mere observation of the court, but a legal
finding. That finding allowed the court to award sanctions pursuant to
28 U.S.C. 1927.
I was troubled that she would fail to acknowledge the finding of the
court that she was reckless. I think this demonstrates a lack of
humility, which is an essential element of being a Federal judge. I
understand attorneys may make mistakes or have differing views on
litigation strategy. However, this is not the case in this situation.
Ms. Du was put on notice of her flawed motion, was warned of the
consequences of proceeding, but went forward anyway. That is why the
court found her to be ``reckless.'' Her subsequent attempt to downplay
this serious matter goes against the standards for judicial nominees
which I previously discussed.
There is another substantive legal element that concerns me as well.
That is her apparent lack of knowledge or disregard for the law
regarding subject matter jurisdiction. Senator Lee's questions at the
hearing on this issue I think demonstrate a lack of ability or
professional competence.
Her written responses to questions for the record failed to
adequately explain her legal reasoning or to clarify the issues raised
at her hearing.
Accordingly, Senate Republicans on the Senate Judiciary Committee
unanimously opposed reporting her nomination to the Senate.
I would note that more than 2 months after her hearing, and more than
one month after she was listed on the Executive Calendar, Ms. Du sent a
letter addressed to me and Senator Lee. In that letter, she apologized
for her earlier unclear explanations and for her misstatements. While I
appreciated her response to me, the doubts I have about her ability and
competence remain. Therefore, I cannot support this nomination and urge
a ``no'' vote on this nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I know Senator Inhofe was on the floor,
and if I could ask unanimous consent that after I speak, he would be
next to speak, and then the good Senator, Mr. Lee, from Utah.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Ms. LANDRIEU. Thank you, Mr. President.
It is my distinct privilege to come to the floor this afternoon to
voice my full support for Susie Morgan's confirmation as an article III
judge on the U.S. Eastern District Court of Louisiana.
I have known Susie for many years. She is a good friend and, more
importantly, she is an excellent and outstanding attorney.
Ms. Morgan comes to this position equipped with decades of litigation
experience in Federal court as an advocate for both plaintiffs and
defendants. She brings a thorough understanding of Federal law and an
unquestionably fair and evenhanded temperament.
It is unfortunate that such a talented individual such as Susie
Morgan has been waiting nearly a year since President Obama nominated
her in July of 2011, and almost 5 months since she was voted out of
committee unanimously.
Despite what the good Senator from Iowa--my good friend and wonderful
partner in so many important issues here--has said, the fact is there
are 17 judicial nominees on this calendar. There are 19 judicial
nominees in committee. The facts are that the nominees for President
Obama have taken nearly five times longer to receive a vote on this
floor.
We know there are some vacancies that have not yet received
nominations. But there is no reason to deny these 17 who are still on
the calendar their day on this floor. Ms. Morgan has waited more than
her turn, and I apologize for that. She understands this has been
caught up in bigger politics. It has nothing to do with her nomination
specifically or her outstanding qualifications. But I do think we have
to be honest about these delays and see what we can do to move people
who are qualified, such as this nominee, so much more quickly because
the courts need their help.
Ms. Morgan earned an advanced degree from the University of Louisiana
at Monroe. She graduated from there, earning both her undergraduate and
master's degrees. Then she earned a law degree on top of that,
graduating in the top 5 percent of her class at Louisiana State
University's Paul Hebert Law Center.
Immediately after earning her JD, Susie served as a law clerk for one
of Louisiana's most respected legal minds, Judge Henry Politz of the
U.S. Fifth Circuit Court of Appeals.
At the conclusion of that Federal clerkship, she began practicing in
Shreveport, LA, for one of our most respected firms, Wiener, Weiss &
Madison.
For the next 25 years, she honed her skills. She was one of the most
capable civil defense attorneys in both Federal and State court.
After years of successful practice in Shreveport, Susie was recruited
by one of the most prestigious law firms in Louisiana, Phelps Dunbar,
and has since served as a partner for the firm where she specializes in
commercial litigation.
She served in a variety of posts, as many of our wonderful nominees
have--serving without much fanfare but with great impact on many
committees of the Louisiana bar, the Federal bar, et cetera. One of the
most important that I want to mention here is that for 14 years she
chaired a rules committee. It is not the sexiest kind of committee, not
something known to the public, but it is so important to the practice
of law for the thousands of attorneys who practice in Louisiana. She
spent years behind the scenes improving Louisiana's State court
proceedings. For almost 14 years, as I said, she chaired the rules
committee and Louisiana Bar Association. Thanks to her leadership, the
Louisiana Supreme Court agreed to replace an old and antiquated system
where each judicial district in Louisiana adhered to its own set of
idiosyncratic set rules, and now we have a uniform set of rules for the
entire State. I think that is a special tribute to her tenacity, to her
willingness to serve and do the hard work behind the scenes without a
lot of public credit.
I am also impressed with the legal protection services she has
offered to the homeless at St. Joseph's, the Harry Thompson Center in
New Orleans, and the multiple community works she has done pre- and
post-Katrina in our community. She has had a career that has
demonstrated her willingness to work hard and to stay at the job, get
the job
[[Page S2153]]
done, to be fair, curious, and respectful and, of course, she is most
knowledgeable of the law, which she has so well served. I am so proud
to support her nomination. I am proud that President Obama accepted my
suggestion and nominated her. I am very pleased. She should receive a
full and strong vote in the Senate. She has the support of myself and
the other Senator, my partner from Louisiana, Senator Vitter. I am very
pleased to speak on her behalf today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, I rise to express serious concerns that I
have with the nomination of Miranda Du to serve as a judge on the U.S.
District Court for the District of Nevada.
In 2007, the very same court to which Ms. Du has been nominated
imposed sanctions on Ms. Du for ``multiplying the proceedings . . .
unreasonably and vexatiously.'' (28 U.S.C. section 1927.) The basis of
this sanctions order was Ms. Du's prior refusal to dismiss a complaint
she had filed on behalf of her client, even after the party her client
was suing informed her--and she did not dispute--that the Federal
District Court lacked subject matter jurisdiction. In imposing these
sanctions on Ms. Du, the district court stated that she ``acted
recklessly in failing to consider seriously the basic issue of lack of
subject matter jurisdiction when the [opposing party] brought it to
[her] attention.''
Ms. Du's errors were egregious, particularly because they involved
Federal subject matter jurisdiction--the very basis of the limited
jurisdictional reach of the Federal court system for which she has been
nominated to be a judge. Ms. Du has not provided a satisfactory
explanation for her conduct, but instead has repeatedly attempted to
minimize the significance of her errors.
When asked at her Judiciary Committee hearing why, in addition to
dismissing her complaint against the third-party defendant, she did not
have the case against her client dismissed for lack of subject matter
jurisdiction, Ms. Du responded that she did ``not realize this was a
matter [she] could raise,'' and that she in fact did raise subject
matter jurisdiction but on other grounds ``that the district court
disagreed with.'' However, as pointed out in a letter members of the
Judiciary Committee sent to Ms. Du following her hearing, court filings
show that she did not raise the issue of subject matter jurisdiction.
In response to that letter, Ms. Du stated that she ``misspoke'' at
her Judiciary Committee hearing and that she in fact had not raised the
basic issue of subject matter jurisdiction. Troublingly, Ms. Du's
belated candor was marred by an additional misleading attempt to
minimize these same errors.
In her letter, Ms. Du stated that the ``motion for sanctions was
later dismissed as moot and no sanctions were ultimately imposed.'' By
going out of her way to make this misrepresentation, Ms. Du attempted
to suggest that her sanctions were somehow not upheld or not imposed.
To the contrary, after the court was burdened with a number of
additional filings and motions regarding how much Ms. Du should pay in
sanctions for her reckless conduct, the parties settled the issue out
of court. The only matter that was mooted was the dispute over how much
Ms. Du should pay, not whether she should pay. It is misleading for Ms.
Du to affirmatively assert to members of the Judiciary Committee that
``no sanctions were imposed'' when the district court found that her
behavior was reckless and plainly required and imposed such sanctions.
In light of the gravity of Ms. Du's errors and the importance to our
Federal judiciary of the issue of subject matter jurisdiction, as well
as Ms. Du's repeated attempts to minimize her errors, I must express
serious concerns with her nomination and encourage my colleagues to
vote against her nomination.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, I ask for the yeas and nays on the
nomination.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Miranda Du, of Nevada, to be United States District Judge for the
District of Nevada?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Utah (Mr. Hatch) and the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted: ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 59, nays 39, as follows:
[Rollcall Vote No. 61 Ex.]
YEAS--59
Akaka
Alexander
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Graham
Hagan
Harkin
Heller
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Manchin
McCain
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--39
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Corker
Cornyn
Crapo
DeMint
Enzi
Grassley
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Kyl
Lee
Lugar
McConnell
Moran
Paul
Portman
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Thune
Toomey
Vitter
Wicker
NOT VOTING--2
Hatch
Kirk
The nomination was confirmed.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Susie Morgan, of Louisiana, to be United
States District Judge for the Eastern District of Louisiana?
Mr. CONRAD. 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 Utah (Mr. Hatch), the Senator from Illinois (Mr. Kirk), and the
Senator from Utah (Mr. Lee).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted: ``yea.''
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 96, nays 1, as follows:
[Rollcall Vote No. 62 Ex.]
YEAS--96
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
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
[[Page S2154]]
NAYS--1
DeMint
NOT VOTING--3
Hatch
Kirk
Lee
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motions to
reconsider are considered made and laid upon the table, any related
statements will be printed in the Record, and the President will be
immediately notified of the Senate's action.
____________________