[Congressional Record Volume 158, Number 155 (Wednesday, December 5, 2012)]
[Senate]
[Pages S7445-S7448]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF MICHAEL P. SHEA TO BE UNITED STATES DISTRICT JUDGE FOR
THE DISTRICT OF CONNECTICUT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider Calendar No. 676, which the
clerk will report.
The legislative clerk read the nomination of Michael P. Shea, of
Connecticut, to be United States District Judge for the District of
Connecticut.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Madam President, the Senate is finally being allowed to
vote today on the nomination of Michael Shea to be a district judge on
the U.S. District Court for the District of Connecticut. It has taken
far too long for this day to come, but he will be confirmed and I
congratulate him and his family on his confirmation and I congratulate
the two Senators from Connecticut on finally having this nomination
come to a vote.
I mention this not to urge that we confirm him because we will--and I
will very proudly vote for him--but Michael Shea is another nominee
whose nomination was stalled for months for no good reason. The
Judiciary Committee--and the distinguished Presiding Officer serves on
that committee and will recall--we gave his nomination strong
bipartisan support more than 7 months ago. He has the support of both
home State Senators--both Senator Lieberman and Senator Blumenthal. He
has significant litigation experience. He is a graduate of Yale Law
School. He clerked for the conservative Judge James Buckley in the U.S.
Court of Appeals for the DC Circuit following graduation.
We have to ask, why did it take 7 months for the Senate to finally
consider his nomination--after waiting 7 months, we will talk about it
for 20 minutes, and then we will vote on his nomination. Why the 7-
month delay? Republican obstruction.
After this vote, the Senate remains backlogged with 17 judicial
nominations that go back to before the August recess. Senate
Republicans are establishing another harmful precedent by refusing to
proceed on judicial nominees with bipartisan support before the end of
the session. They held up judicial nominees 3 years ago, they did it 2
years ago, they did it last year, and now they are doing it again this
year.
They have found a new way to employ their old trick of a pocket
filibuster. They stall nominees into the next year, and then they force
the Senate, in the new year, to work on nominees from the past year.
They delay and delay and delay and push other confirmations back in
time and then cut off Senate consideration of any nominees.
How else does anyone explain the Republican Senate opposition to
William Kayatta of Maine, who is supported by the two Republican
Senators from Maine? How else to explain the Republican filibuster and
continuing opposition to Robert Bacharach of Oklahoma, who has the
support of Senator Inhofe and Senator Coburn, the two Republican
Senators from Oklahoma? How else to explain their adamant refusal to
consider the nomination of Richard Taranto to the Federal Circuit, when
the Judiciary Committee had seven of the eight Republican Senators
voting for him? One, Senator Lee, cast a ``no'' vote but said it was a
protest on another matter. But every single Democrat voted for him.
These delays may serve some petty political purpose, but the American
people do not want petty political purposes. They want our Nation's
courts to be staffed. They want the American people who seek justice to
be able to get it. So we should take action on all pending nominees and
reduce the damagingly high number of judicial vacancies. Federal
judicial vacancies remain above 80. By this point in President Bush's
first term, we had reduced judicial vacancies to 28.
There were more than 80 vacancies when the year began. There were
more than 80 vacancies this past March when the majority leader was
forced to take the extraordinary step of filing cloture motions on 17
district court nominations--something I had never seen in my 37 years
here. There are going to be at least 80 vacancies after today. Before
we adjourn, we ought to at least vote on the 17 pending nominations
that could have been and should have been confirmed before the August
recess.
[[Page S7446]]
From 1980 until this year, when a lame duck session followed a
Presidential election, every single judicial nominee reported with
bipartisan Judiciary Committee support has been confirmed. That is
whether there was a Republican or Democratic President or a Republican-
controlled or Democratic-controlled Senate.
According to the nonpartisan Congressional Research Service, no
consensus nominee reported prior to the August recess has ever been
denied a vote--before now. Somehow, this President is treated
differently than all the other Presidents before him. I have been here
with President Ford, President Carter, President Reagan, the first
President Bush, President Clinton, the second President Bush, and now
President Obama. None of those other Presidents were treated in the way
this President is treated. It is something Senate Democrats have never
done in any lame duck session, whether after a Presidential or midterm
election.
In fact, Senate Democrats allowed votes on 20 of President George W.
Bush's judicial nominees, including 3 circuit court nominees, in the
lame duck session after the election in 2002. I remember. I was the
chairman of the Judiciary Committee. I moved forward with those votes,
including one on a very controversial circuit court nominee. The Senate
proceeded to confirm judicial nominees in lameduck sessions after the
elections in 2004 and 2006. Actually, in 2006, we confirmed another
circuit court nominee.
We proceeded to confirm 19 judicial nominees in a lame duck session
after the elections of 2010, including five circuit court nominees. The
reason I am not listing confirmations for the lame duck session at the
end of 2008 is because that year we had proceeded to confirm the last
10 judicial nominees approved by the Judiciary Committee in September
and long before the lame duck session.
That is our history. That is our recent precedent. Those across the
aisle who contend that judicial confirmation votes during lame duck
sessions do not take place are wrong. The facts are facts are facts. It
is past time for votes on the 4 circuit court nominees and the other 13
district court nominees still pending on the Executive Calendar.
Let's do our job. This is what the American people pay us to do.
Let's vote up or vote down, but let's vote.
I yield the floor.
The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Iowa.
Mr. GRASSLEY Mr. President, today, the Senate turns to the
confirmation of another U.S. district judge. According to the
Congressional Research Service, the Senate rarely confirms judicial
nominees during a lameduck session in a Presidential election year. It
did so in a very limited fashion in 1944, 1980, and 2004.
The last time a President was re-elected--President Bush in 2004--
only three judicial nominees were confirmed following the election.
That year, following President Bush's re-election, 23 judicial
nominations that were pending either on the Senate Executive Calendar
or in the Judiciary Committee were returned to the President when the
Congress adjourned in December.
Today's vote, the second post-election judicial confirmation, is
somewhat of a milestone for this President. It is the 100th judicial
confirmation during this Congress. That happens to be the same number
of confirmations during President Bush's first term when the Democrats
controlled the Senate and chaired the Judiciary Committee. I have heard
the chairman rightfully take pride in that accomplishment. Today we
match that record. So I think that the continued complaints we hear
about how unfairly this President has been treated are unfounded.
Despite our cooperation, we continue to hear the other side argue
that since the President won re-election, we shouldn't follow past
practice, but rather we should confirm a large number of nominations
during this lameduck session. Recently one of my colleagues on the
other side stated: ``From 1980 until this year, when a lame duck
session followed a presidential election, every single judicial nominee
reported with bipartisan Judiciary Committee support has been
confirmed.''
I suppose this is meant to imply there is some long record of routine
confirmations following a Presidential election. But again, that is
simply not the case. The record is one circuit confirmation in 1980,
and three district confirmations in 2004. That is it. From 1980 through
2008, those four nominations represent the entire list. With today's
vote we will add two more confirmations to that exclusive list.
This year we have already confirmed 32 district judges and 5 circuit
judges. Today's vote meets or exceeds the confirmations for
Presidential election years in recent memory. In fact, going back to
1984, there has been only one Presidential election year in which more
district judges were confirmed. Let me emphasize that point: In only
one of the past eight Presidential elections have more district
nominees been confirmed.
Today we vote on the nomination of Michael P. Shea, to be U.S.
district judge for the District of Connecticut. With this confirmation,
the Senate will have confirmed 160 of President Obama's nominees to the
district and circuit courts. During the last Presidential election
year, 2008, the Senate confirmed a total of 28 judges--24 district and
4 circuit. This Presidential election year we have exceeded those
numbers. We have confirmed 5 circuit nominees, and Mr. Shea's
confirmation will be the 33rd district judge confirmation. That is a
total of 38 judges this year versus 28 in the last Presidential
election year.
Finally, I would note that Mr. Shea was not reported out of committee
by a unanimous vote. There were concerns about part of his record, and
that resulted in a few ``no'' votes in committee. I supported the
nomination in committee and will do so again today. But for those who
argue that the Republicans have delayed this nomination just to
obstruct, that is not the case.
Mr. Shea received his B.A. from Amherst College in 1989 and his J.D.
from Yale Law School in 1993. Following graduation from law school, he
clerked for James Buckley, U.S. circuit judge for the District of
Columbia Circuit. Mr. Shea began his legal career in 1994 at Clearly,
Gottlieb Steen & Hamilton in Washington, DC where he worked primarily
on civil and criminal antitrust matters. In October 1995, he moved to
Clearly Gottlieb's Brussels, Belgium, office, where he continued to
work on antitrust matters, including European Union antitrust issues,
as well as international business transactions in Eastern Europe and
Africa. In the summer of 1998, he returned to the DC office where he
assisted in defending a corporate client in a large money laundering
prosecution.
In September 1998, Mr. Shea returned to Connecticut, accepting a
position as an associate at Day, Berry & Howard, now known as Day
Pitney. In 2003, he became a partner with the firm. His career there
has spanned a broad range of civil and criminal litigation. His
practice included trials and appeals in commercial, civil rights,
personal injury, criminal, family, and other cases.
He has tried nine cases to verdict, judgment or final decision. In
the past decade, he argued 20 appeals, including 6 at the U.S. Court of
Appeals for the Second Circuit. The American Bar Association's Standing
Committee on the Federal Judiciary gave him a Unanimous Qualified
rating.
Again, I support this nomination and congratulate Mr. Shea on his
anticipated confirmation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to express my strong support for
the nomination of Michael Shea to serve as the next Federal district
court judge for the District of Connecticut. As the Presiding Officer
heard--and I did as well--Chairman Leahy and Senator Grassley expressed
very different analyses of the pace at which this Senate is confirming
judicial nominations of President Obama, but I note, with gratitude,
that both of them expressed support for this particular judge, Michael
Shea, and it gives me confidence that he will receive the confirmation
vote today that he deserves.
I suppose, because I am at the end of the privilege of serving as a
Senator for 24 years, I am looking back at various opportunities and
experiences I have had.
It strikes me at this moment that I should say what I am sure is felt
by all
[[Page S7447]]
of my colleagues; that is, while it is often said of Presidents of the
United States that the most important decisions they make are the
people they put on the Federal bench, particularly Justices of the
Supreme Court because those Justices and judges serve long after a
President has left office and continue to affect the course of our
country of justice under law, the same really can be said with regard
to Senators and the role we play in proposing nominees for the Federal
district courts in our States.
I must say as I look back at the time I have been privileged to be in
the Senate, working with Senator Dodd and now with Senator Blumenthal,
I am proud of the people we have helped onto the district courts for
the District of Connecticut, obviously, with a lot of support from
nominating Presidents of both parties and from people of both parties
in the Senate Judiciary Committee and on the Senate floor.
The district court bench in Connecticut is an impressive group and
quite a diverse one as well. Michael Shea, if confirmed, will add to
its excellence and its legal heft. In November of last year, Judge
Christopher Droney left the district court when the Senate confirmed
his nomination to serve on the Federal Court of Appeals for the Second
Circuit. Judge Droney's vacancy gave Senator Blumenthal and me the
opportunity to recommend his replacement.
We took this responsibility seriously. We brought together an
advisory panel of nine Connecticut citizens who considered more than 20
candidates for this spot. The panel included a former chief justice of
the Connecticut Supreme Court, a former U.S. attorney, several partners
at major Connecticut and national law firms, and academic, business,
and community leaders throughout the State. Their insights and hard
work throughout the process were invaluable to my colleague from
Connecticut and I. I express on this floor my gratitude to them for
their service.
Based on the work of the advisory panel and our review of its
recommendations, Senator Blumenthal and I recommended Michael Shea to
the President for nomination. I will say that Michael was ranked very
high among the highly qualified applicants for this position by all
members of the advisory panel. I should say right at the outset that we
are grateful to President Obama for nominating him for this place on
our court.
Michael Shea is a native of West Hartford, CT, a graduate of Amherst
College and Yale Law School, served as a clerk to Judge James Buckley,
though a resident of Connecticut, and sat on the U.S. Court of Appeals
for the District of Columbia. Michael Shea clerked for Judge Buckley in
1993 and 1994. I will say that Judge Buckley sent our advisory
committee and, I believe, the Judiciary Committee and Senator
Blumenthal and me a very thoughtful, positive, personal letter of
recommendation on Mr. Shea's behalf.
After concluding his clerkship, Michael Shea joined the firm of
Cleary, Gottlieb, Steen & Hamilton as an associate, where he stayed for
4 years working on both criminal and civil cases and for a period of
time was dispatched to the Brussels, Belgium, office of the firm
working on an antitrust investigation. But much more significant than
his legal work, in Brussels he met his wife Frederique, and together
they now have three wonderful children.
Since 1998, Michael Shea has been a partner at Day Pittney, LLP,
where his practice has included trials and appeals in commercial, civil
rights, personal injury, criminal, and other cases. He is currently the
chair of the firm's Appellate Practice Group. But we found in talking
to lawyers and judges around Connecticut on the State and Federal bench
that Michael Shea is quite simply one of the most experienced and
broadly respected litigators in our State.
If confirmed, he will bring to the district bench an enormous
background of experience in our courts. I want to add that Michael Shea
also serves his community in various charitable organizations,
including the Nutmeg Big Brothers and Sisters, and the Supreme Court
Historical Society.
In 2008, as a result of pro bono work Michael has consistently done
representing indigent criminal defendants, he received the Connecticut
Bar Association's Pro Bono Award for successfully protecting a young
mother from having to return her children to an abusive father who
lived abroad.
First, I thank Michael Shea for his interest in serving on the
Federal bench of Connecticut. I am honored to present him, along with
Senator Blumenthal, to our colleagues in the Senate. He is a first
class nominee.
Again, I thank the President for nominating him. I am confident that
the President's trust in Mr. Shea will be more than vindicated by the
years of judicial service that he will give our State and country.
I am now glad to yield the floor to my colleague from Connecticut,
Senator Blumenthal, who I am sure, with my successor, Chris Murphy,
will continue to fill vacancies as they arise. There is one now with
the same high level of nominee as we have been privileged to do
together in this case.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. President, let me first thank my colleague,
Senator Lieberman, for the extraordinary work he and my predecessor,
Senator Dodd, have done in filling our U.S. District Courts with some
of the most eminent jurists in the United States.
As he has remarked so eloquently, part of the living legacy of the
Senate and of individual Senators is, in fact, the men and women whom
we recommend to serve in this critically important decision.
As someone who has been a trial lawyer, who has practiced for a few
decades in the Federal district courts of our country, I know
personally that these men and women for most Americans are the voice
and face of justice in our Federal courts. The U.S. Supreme Court may
be the highest Court in the land, but most litigants go no higher than
the U.S. District Court, and for them fairness and justice is the voice
and face of the U.S. district judge.
So I thank the Senator for the great work he has done. In decisions
based on merit, without regard to personality or politics, he has
participated in recommending some of the best of the best men and women
to serve on our Federal bench.
Michael Shea epitomizes that quality of fairness, intellect, and
dedication to public service. He is a native of Connecticut, but his
experience is national and international in scope. I am not going to
repeat all of the extraordinary credentials that Senator Lieberman has
described so well. I just want to say that on a level that is as
important as any professional credentials in terms of temperament, he
is the kind of person we want on our bench. He is unpresuming,
unassuming, self-effacing, understated, but powerfully attentive to
individual facts and personal circumstances.
He has compassion and conviction, principle and impeccable honesty
and integrity, and he has an empathy for people who are in distress,
who are in need of somebody to listen. That may be a quality that is
preeminently important on the bench, the ability to listen and the
attention to detail.
Mr. Shea has served as counsel for criminal defendants. He has argued
20 appeals, including 6 to the Second Circuit. He has tried 9 cases to
verdict. He has served as counsel to the Bridgeport Roman Catholic
Diocese in first amendment matters. I worked with him personally in a
professional capacity when I was attorney general of the State of
Connecticut. I know him as someone who will do justice and love mercy.
He is a man whom we can be proud to support. I am proud to support
him. I thank President Obama for nominating him and the chairman of the
Judiciary Committee, Patrick Leahy, for his leadership on our committee
in making sure he had a hearing and a vote, and now this vote is here.
I thank also our ranking member, Senator Grassley, for his
graciousness in stating that he would support him. My hope is that the
U.S. District Court of Connecticut, which faces a backlog now, will
have the good fortune to have remaining vacancies filled at the
earliest possible date by lawyers as eminently qualified as soon-to-be
judge Michael Shea. I thank this body in advance for approving him.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S7448]]
The assistant legislative clerk proceeded to call the roll.
Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BINGAMAN. I yield back all remaining time and ask for the yeas
and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Michael P. Shea, of Connecticut, to be U.S. District Judge for the
District of Connecticut?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) and the Senator from Virginia (Mr. Webb) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Illinois (Mr. Kirk), the Senator from South Carolina (Mr. DeMint),
and the Senator from Tennessee (Mr. Alexander).
Further, if present and voting, the Senator from South Carolina (Mr.
DeMint) would have voted ``nay,'' and the Senator from Tennessee (Mr.
Alexander) would have voted ``nay.''
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 72, nays 23, as follows:
[Rollcall Vote No. 222 Ex.]
YEAS--72
Akaka
Ayotte
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Coats
Collins
Conrad
Coons
Corker
Durbin
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Hoeven
Inouye
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Whitehouse
Wyden
NAYS--23
Barrasso
Blunt
Boozman
Chambliss
Coburn
Cochran
Cornyn
Crapo
Enzi
Heller
Hutchison
Inhofe
Isakson
Lee
McConnell
Paul
Risch
Roberts
Rubio
Thune
Toomey
Vitter
Wicker
NOT VOTING--5
Alexander
DeMint
Kirk
Rockefeller
Webb
The nomination was confirmed.
Mr. COBURN. Mr. President, I wish to explain my vote against Mr.
Michael Shea, nominee to the District Court of Connecticut. My decision
is based on Mr. Shea's assistance in drafting an anticus brief in the
Supreme Court case of Kelo v. New London on behalf of the Connecticut
Conference of Municipalities and other municipalities.
The Kelo decision delivered a serious blow to private property rights
by upholding a municipality's use of eminent domain to seize private
homes and transfer the property to a pharmaceutical company for
purposes of ``economic development.'' As Justice Sandra Day O'Connor
stated in her dissent, the ``Court abandoned its long-held, basis
limitation on government power'' in the Kelo case. The Fifth Amendment
of the Constitution states: ``No person shall be . . . deprived of
life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.''
The Kelo decision altered what was traditionally viewed as ``public
use.'' As Justice O'Connor noted, as a result of this decision,
``Nothing is to prevent the State from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm with a
factory. . . . Any property may now be taken for the benefit of another
private party, but the fallout from this decision will not be random.
The beneficiaries are likely to be those citizens with disproportionate
influence and power in the political process, including large
corporations and development firms.''
In contrast, Mr. Shea's amicus brief argued the eminent domain action
taken by New London was constitutional and should be upheld. He
asserted the ``taking of some of the petitioners'' homes'' is
``undeniably a genuine cost of realizing the City's goal of improving
the economic well-being of its citizens?' But, the Public Use Clause
``sweeps as broadly as the [State's] police powers.'' He said siding
with the Kelo plaintiffs in the case would ``contort'' the Public Use
Clause. Justice Stevens, the author of the 5-4 majority opinion in
Kelo, cited Mr. Shea's brief in his opinion.
Perhaps the saddest aspect of this case is the ``economic
development'' that was key to the taking being a ``public use'' never
happened because the developer could not get funding. Susette Kelo lost
her property for nothing. The site of her former home is a garbage
dump. This fact exposes another reason the takings clause was only
intended for public use, because the government is more likely to have
the funding ready to use the property. Normally, I would not hold a
lawyer responsible for the legal views of his clients, but the Kelo
decision dealt such a serious blow to private property rights, a
crucial element of our founding principles, and so clearly departs from
the original understanding of the Constitution, I feel I must vote no.
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.
____________________