[Congressional Record Volume 160, Number 61 (Monday, April 28, 2014)]
[Senate]
[Page S2415]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF MICHELLE T. FRIEDLAND TO BE UNITED STATES CIRCUIT JUDGE 
                     FOR THE NINTH CIRCUIT--Resumed

  The PRESIDING OFFICER. 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 Michelle T. 
Friedland, of California, to be United States Circuit Judge for the 
Ninth Circuit.
  Mr. LEAHY. Mr. President, more than 2 weeks ago, the Senate voted to 
end the filibuster on the nomination of Michelle Friedland of 
California to fill a judicial emergency vacancy on the U.S. Court of 
Appeals for the Ninth Circuit. That vote was the fourth time this year 
that the Senate had to overcome a Republican filibuster of a highly 
qualified circuit court nominee. In stark contrast, the Senate 
confirmed 18 of President Bush's circuit nominees within a week of 
being reported by the Judiciary Committee.
  The Ninth Circuit is the busiest circuit court in the country. It has 
the highest number of appeals filed, the highest pending appeals per 
panel and the highest pending appeals per active judge. It also takes 
far longer than any other circuit court to resolve an appeal. The delay 
in resolving these appeals hurts the American people. After the 
confirmation last month of John Owens and what I expect will be today's 
confirmation of Michelle Friedland, the Ninth Circuit will be operating 
at full strength for the first time in more than 9 years. This is an 
important milestone, but we should not stop there. There are five 
additional circuit court nominees awaiting Senate confirmation. I hope 
that Senators who care about Americans having access to the courts will 
allow the Senate to confirm these nominees without further delay.
  Michelle Friedland is an exceptionally talented attorney, who like 
the other 19 judicial nominees confirmed earlier this year, could and 
should have been confirmed last year. She was first nominated last 
August and after her hearing was delayed due to the Republican shutdown 
of our government, she finally came before the Judiciary Committee for 
a hearing in early November.
  In January, Ms. Friedland's nomination was voted out of the Judiciary 
Committee with bipartisan support and she has the strong support of 
both of her home state Senators--Senator Feinstein and Senator Boxer. 
Nevertheless, we were once again forced to follow the costly ritual of 
filing and voting on cloture and wasting valuable floor time. There is 
no good reason we could not have voted to confirm Ms. Friedland last 
year, and there is no good reason that we did not have a vote to 
confirm her 2 weeks ago. Meanwhile, it is our Federal judiciary and the 
American people who suffer from these delays.
  If confirmed, Michelle Friedland would increase the gender diversity 
on the Ninth Circuit Court of Appeals. She would be the seventeenth 
woman to ever sit on this appellate court. In comparison, 83 men have 
been appointed to the Ninth Circuit over the course of its history. Her 
confirmation will bring the percentage of active female judges sitting 
on the Ninth Circuit Court of Appeals to nearly 38 percent. Her 
confirmation will also mark the first time since the 29th judgeship was 
added in 2007, that it has had a full complement of active judges 
serving on this busy appellate court.
  I hope my fellow Senators will join me today to confirm Michele 
Friedland to the Ninth Circuit so that she can get to work for the 
American people.
 Mr. INHOFE. Mr. President, I wish to express my opposition to 
the nomination of Michelle Friedland to the Ninth Circuit Court of 
Appeals.
  Although Ms. Friedland has a fine resume, it is not her work 
experience that concerns me but, rather, her views on many issues--
views that should give anyone reason to question her appointment as a 
U.S. Circuit Court judge. Most troubling to me is Ms. Friedland's views 
that the International Court of Justice preempts U.S. law, despite the 
Supreme Court's repeated rejection of this notion. For those who don't 
know, the International Court of Justice is the judicial arm of the 
United Nations and Ms. Friedland believes decisions from this court 
should be binding on state courts in the U.S. I am thankful that the 
Supreme Court hasn't agreed with her and I'm fearful that her 
appointment to the Ninth Circuit will give her the opportunity to 
surrender U.S. sovereignty to foreign courts and international law.
  Another reason we, as legislators, should oppose Ms. Friedland is 
that she has expressed views that indicate judges are free to legislate 
from the bench. As we all learn in grade school, the legislative branch 
creates the laws, the executive branch enforces them, and the judicial 
branch interprets them. Despite this, Ms. Friedland believes laws have 
no force unless a judge says they do. So when legislators, elected by 
the people, pass a law or a constitution is amended, the new law has no 
power until a judge deems it enforceable and a constitution, state or 
U.S., does not create any rights unless the judiciary says it does. 
This is a dangerous notion that tells me that Ms. Friedland is likely 
to only enforce laws and constitutional rights with which she agrees.
  It is for these reasons that I am opposed to this nomination.
  The PRESIDING OFFICER. Under the previous order, the question occurs 
on the nomination.
  Ms. MIKULSKI. 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 question is, Will the Senate advise and consent to the nomination 
of Michelle T. Friedland, of California, to be United States Circuit 
Judge for the Ninth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Coons), 
the Senator from Alaska (Mr. Begich), the Senator from Iowa (Mr. 
Harkin), the Senator from Louisiana (Ms. Landrieu), and the Senator 
from Arkansas (Mr. Pryor) are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Arkansas (Mr. Boozman), the Senator from Kansas (Mr. 
Moran), the Senator from Florida (Mr. Rubio). and the Senator from 
Oklahoma (Mr. Inhofe).
  Further, if present and voting, the Senator from Arkansas (Mr. 
Boozman) would have voted ``nay,'' and the Senator from Oklahoma (Mr. 
Inhofe) would have voted ``nay.''
  The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 51, nays 40, as follows:

                      [Rollcall Vote No. 108 Ex.]

                                YEAS--51

     Baldwin
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Walsh
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--40

     Alexander
     Ayotte
     Barrasso
     Blunt
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--9

     Begich
     Boozman
     Coons
     Harkin
     Inhofe
     Landrieu
     Moran
     Pryor
     Rubio
  The nomination was confirmed.
  Mr. REID. Mr. President, I ask unanimous consent that the rest of the 
votes tonight be 10 minutes in duration.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________