[Congressional Record Volume 162, Number 77 (Monday, May 16, 2016)]
[Senate]
[Pages S2805-S2812]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Zika Virus
Mr. PORTMAN. Madam President, I rise today to talk about the Zika
virus. We will have a vote on this tomorrow.
Tonight I wish to speak about the need for us to move forward with
emergency funding with regard to this virus. We need to combat it. It
is spreading. It poses a threat to the safety of women, children, and
the elderly. It is particularly important that we keep it from
spreading because there is no known Zika vaccine or treatment.
A lot of my constituents have asked me about this back home. This is
a virus that has spread from Africa, to Asia, to Latin America, and now
it is coming into our own country. It is spreading so quickly because
it is insidious. It is difficult to test for it because it is usually
confused with other viruses, like dengue. It can only be detected in a
few days after you get it in the blood. Many of its symptoms in older
adults are similar to other viruses, such as influenza, so it is tough
to know whether you have it. It is typically contracted simply by being
bitten by a mosquito, and two kinds of mosquitoes--both of which are in
the United States--are the problem. We now know that it can also be
transmitted by sexual activity. We are told that men may be able to
sexually transmit the virus for months after the initial infection
based on some experiences.
So, again, this is a difficult issue. Some people may not even know
they have it; yet they might be spreading it. The spread of the virus
is accelerating. It took 60 years for Zika to make it out of Africa to
the Pacific. Just 8 years after that, it reached the Western Hemisphere
in Latin America.
Today it has infected people in 62 countries, including the United
States and 34 other countries in the Americas, so pretty much every
country in the Americas is now infected with it. Hundreds of Americans
have been infected. We know of nearly 500, including 48 pregnant women
and 12 people in my home State of Ohio, in fact. Thus far, it looks as
though all of the Americans who have become infected did so by
traveling overseas, being infected by the mosquito or by sexual contact
with someone who had Zika.
The World Health Organization calls it ``a threat of alarming
proportions'' because it is spreading so quickly and because it has
serious consequences for the most vulnerable in our society,
particularly the elderly--an older gentleman in Puerto Rico recently
died of Zika--children, babies in the womb, which we will talk about in
a second, and pregnant women.
As Zika has spread, health officials have reported an increased
incidence of babies born with a horrible birth defect
[[Page S2806]]
where a baby's head and brain are abnormally small. The consequences of
this birth defect are absolutely tragic. These kids have seizures, slow
development, intellectual disabilities, and often loss of hearing and
vision. The consequences last a lifetime. There is no known cure for
this disease. We don't want any child to have to suffer through that.
It is in all of our interests to protect more babies from this
syndrome.
In Brazil, there have been more than 900 confirmed cases since Zika
arrived, with another 4,000 suspected cases. These are conservative
estimates, and they are rising. That is up from around an average of
150 each year--a 600-percent increase from year to year.
Officials also tell us that Zika can cause what is called Guillain-
Barre syndrome, which causes the body's immune system to attack its own
nerves. It is a cruel syndrome, and in bad cases it can cause total
paralysis and loss of sensation. This can happen to anyone, not just
newborns but adults as well. These are just two of the neurological
side effects that can result, and, like Zika, they are thought to be
incurable.
For most adults, Zika is not fatal, but to the most vulnerable, like
the elderly and the unborn, it could be a lifetime of suffering,
disability, or even death. I mentioned the man in Puerto Rico who died
last week after being infected by Zika, a fellow American. His immune
system began to attack the platelets in his blood, so they couldn't
clot, and that was the effect for him.
As Zika spreads, it becomes clearer than ever that our response has
to be very aggressive, both domestically and internationally. It has to
be aggressive, and therefore it has to be funded. That is why I think
it is important that we deal with emergency funding before it is truly
an emergency.
I thank my colleagues for the steps they have already taken to
improve our response. In March, this body passed and President Obama
signed into law bipartisan legislation which I cosponsored with my
friend Senator Franken that will give accelerated priority review at
the Food and Drug Administration for new drugs and vaccines to treat
Zika. This is very important, and I applaud the Senate for moving
quickly and the administration for moving on that. It is a critical
step. Right now, there is no cure and no treatment. President Obama has
signed it into law.
I am also grateful to the administration for redirecting more than
$500 million of residual Ebola funds that were originally appropriated
by Congress to deal with Ebola and were not necessary. They stopped
using those funds for Ebola and shipped those funds over to Zika to
stop it from spreading. I applaud them for that as well.
Again, we have more work to do, and it is my view that we ought to
move forward with emergency funding. There was a proposal--I believe it
was finalized just last week, Thursday or Friday--from Senator Blunt
and Senator Murray that goes a long way toward dealing with this issue.
The majority of the funding is right here in the United States, while
the rest will go to international immigration purposes so we can keep
Zika from crossing our borders again. A lot of this funding goes to the
Centers for Disease Control and Prevention--the majority of it--to
enhance mosquito control programs, improve infrastructure for testing
for Zika, and expand the pregnancy risk assessment monitoring system,
all of which are important. This is emergency funding, and I think it
is necessary. Some funding also helps provide health services for
pregnant women in Puerto Rico and invests in scientific research for a
treatment or a vaccine. This is perhaps the most important thing we can
do. These are critical priorities.
I would also note that I am pleased that we have maintained the Hyde
protections in this proposal, and I believe this is consistent with the
goal of protecting innocent life, protecting these innocent babies from
birth defects. We want this funding to be used to help preserve life
and to help the vulnerable.
We need to ensure adequate funding. We have to recognize the tools
already at our disposal and use them. I have remained in contact with
the Secretary of the Air Force as this virus has spread to make clear
that in Ohio we have reservists at Youngstown Air Reserve Station who
are ready to help. This Air Reserve Station in Youngstown, OH, is the
home of the 910th Airlift Wing, which is the only fixed-wing aerial
spray unit in the United States. It has been used by the military all
over the United States. They have played key roles in other public
health emergencies, including spraying millions of acres in Louisiana
and Texas for mosquito abatement after Hurricane Katrina. I believe
they could play that same role now. They are ready to do it, but
frankly they need an upgrade in their equipment to be able to do it.
As RADM Stephen Redd of the CDC told me in the Homeland Security and
Governmental Affairs Committee, ``there could be a role for that
airwing in locations that do not have [finely honed mosquito control
enterprises].'' He said that a lot of counties in this country do not
have that. He said: ``One of the things that we think is really
important that the Zika virus outbreak is pointing out is the need to
really revitalize those mosquito control efforts.'' I couldn't agree
with him more.
We need to revitalize these efforts to be sure we have them and use
the tools that are at our disposal right now. If Zika were to spread
around the country, it is incredibly important that we have this
control effort.
I hope we move forward on this in the next couple of days, send this
legislation to the President for his signature, and get moving on
dealing with the Zika emergency we have before us. People all over Ohio
ask me about it because they are worried. We need to keep our
constituents safe, and we need to give them peace of mind.
Adopting the amendment I think we are going to have before us in the
next couple of days is the best action we can take right now to achieve
these goals, and I urge my colleagues on both sides of the aisle to
strongly support emergency funding for this purpose.
Thank you.
I yield back my time.
THE PRESIDING OFFICER (Mr. Coats). The Senator from Vermont.
Mr. LEAHY. Mr. President, it has been 5 weeks since the Senate last
confirmed a judicial nominee. In that time, judicial vacancies have
continued to increase. Unfortunately, the Republican leadership has
repeatedly objected to unanimous consent motions made to overcome the
obstruction of 20 judicial nominees. These are nominees who were voted
out unanimously by committee and are awaiting a confirmation vote.
The majority leader claims that President Obama's nominees have been
treated fairly, but anyone paying attention to the Senate over the past
7 years knows that is not the case. It has been almost 2 months since
Chief Judge Merrick Garland was nominated by President Obama to fill a
vacancy on the Supreme Court. Chief Judge Garland is widely respected,
and prior to his nomination, he had repeatedly received praise from the
very Republicans who now refuse to allow him to appear for a
confirmation hearing. These same Republicans refuse to do their jobs as
Senators while outside groups pour millions of dollars into television
ads that seek to discredit Chief Judge Garland's record. Before there
was even a Supreme Court nominee, one Republican aide promised
conservatives were ``going to light this person up.'' Sadly, it appears
they are making good on their threat while simultaneously refusing to
allow him a public hearing where he could respond.
Meanwhile, lower court nominees have stalled. Paula Xinis, whom we
will vote on today, was nominated more than a year ago to fill an
emergency vacancy--not just a regular vacancy but an emergency vacancy
in Maryland. Since 2011, she has practiced as a criminal defense
attorney at a law firm. Prior to that, she served in the Federal Public
Defender's Office for the District of Maryland for 13 years, from 1998
to 2011. Ms. Xinis has extensive trial experience, representing
hundreds of clients as a public defender and trying 16 cases to
completion over the course of her career. The ABA Standing Committee on
the Federal Judiciary unanimously rated Ms. Xinis ``well qualified'' to
serve in the district court. They gave Paula Xinis their highest
rating. She is strongly supported by both Senators from Maryland, and
her nomination was unanimously approved by the Judiciary
[[Page S2807]]
Committee by voice vote 8 months ago. All the Republicans on the
Judiciary Committee approved her nomination from the Committee by
unanimous voice vote.
Senator Sessions came to the floor today to oppose Ms. Xinis's
nomination based on her experience as an examiner of complaints against
police officers in the District of Columbia. From 1995 to 2011, Ms.
Xinis served as a complaint examiner in six cases where she made
determinations on complaints brought against Metropolitan Police
Department officers. At her Senate Judiciary Committee hearing, Senator
Sessions questioned Ms. Xinis about her experience and expressed
concern that, in the six cases Ms. Xinis served as a complaint
examiner, she sustained rulings against police officers in all of them.
Senator Sessions questions Ms. Xinis's fairness to police officers
based on her determinations in these six cases.
However, as Senator Sessions said on the floor today, he does not
question her personal qualifications or her integrity to be a Federal
judge. And he also did not question her testimony before the Judiciary
Committee in which she committed to being a fair and impartial judge,
should she be confirmed. Furthermore, Ms. Xinis's record as a complaint
examiner shows that each one of her six determinations was sustained by
the chief of police; none of them was overturned. Her decisions could
have been appealed and overturned if they were incorrect, but they were
not.
Paula Xinis has earned the express support of law enforcement and has
defended police officers as an attorney on a number of occasions. For
instance, in one case, she provided legal counsel to a Baltimore police
officer unfairly accused of criminal wrongdoing. That officer wrote a
letter of support for Ms. Xinis, where he said: ``Throughout the entire
ordeal, I spent countless hours with Paula and her team. They worked
diligently seeking the evidence needed to exonerate me. Although it was
an extremely dark time for me, she always made me feel confident that
she `had my back' and that she was dedicated to seeing that I was
vindicated. Thankfully, as a result of her tireless efforts on my
behalf, all of the charges brought against me were dismissed earlier
this year.'' This does not sound like a person who holds any biases
against law enforcement. In addition to this officer, several other
members of the law enforcement community have written in support of Ms.
Xinis's nomination.
After we actually vote on Paula Xinis's nomination today, there will
still be 19 judicial nominees pending on the Executive Calendar waiting
for a confirmation vote. Every single one of these nominees was voted
out of the Judiciary Committee by unanimous voice vote. Instead of
allowing a vote on these nominees on a regular basis, the Republican
leadership objects to the Senate being able to do our jobs.
After today's vote, the next in line for consideration is a district
court nominee from New Jersey and then a district court nominee from
Nebraska. I know the Senators from New Jersey are pushing for a vote on
the nominee to serve in their State. I hope the Republican Senators
from Nebraska are urging their leadership to schedule the confirmation
of Robert Rossiter, who was approved by unanimous voice vote in
committee. That vacancy has been pending for over a year and a half.
There is no good reason for votes on these nominees to be further
delayed.
Senator Grassley has indicated that Republicans will shut down the
judicial nominations process in July, even though vacancies have risen
from 43 to 81 since Republicans took over the majority. They have
allowed vacancies to rise dramatically and now want to shut it down
even though the judicial nominees pending are not controversial and we
have numerous vacancies that need to be filled. This is wrong. Contrast
this to the last 2 years of George W. Bush's administration, when
Democrats were in control. At this same point in the Bush Presidency,
Democrats had reduced vacancies to just 46.
Because of Republican obstruction, our independent judiciary is
struggling to perform its role under the Constitution. The Marshall
Project recently interviewed several sitting judges to examine the
impact judicial vacancies are having on our courts. Chief Judge Ron
Clark of the Eastern District of Texas, which currently has three
judicial emergency vacancies, said: ``We're managing the best we can--
but if they don't get us another judge soon, you could start to see
some more draconian kinds of delays.'' There is a nominee to this court
pending in the Judiciary Committee, but the Texas Senators, who both
are members of the committee, have not returned their blue slips to
allow that nominee to even receive a hearing. I hope the Texas Senators
heed the call of Chief Judge Clark and get moving on their nominee.
And I hope the Senate majority allows this body to return to regular
order when it comes to processing judicial nominees. We have a
constitutional responsibility to provide advice and consent on the
President's nominees. The Constitution has not changed, but once
President Obama took office, this body's normal practice for treating
nominees turned for the worse. Deference to home State Senators was no
longer the norm, and procedural delay after procedural delay quickly
became the standard practice of the Republican caucus, whether they
were in the minority or now in the majority. In a New York Times op-ed
a week ago, former Judge Shira Sheindlin of the Southern District of
New York warned that the Republicans' obstruction to district court
nominees ``undermines public trust in the impartiality and legitimacy
of the judiciary.''
I was heartened to hear the majority leader last week make the point
that an election year is ``not an excuse not to do our work.'' I could
not agree more. That is why in the last 2 years of the George W. Bush
administration, when I served as chairman of the Judiciary Committee,
we confirmed 68 of President Bush's judicial nominees. That is compared
to a handful of President Obama's nominees that the Republicans have
allowed. We confirmed 68 of President Bush's judicial nominees, and we
confirmed right up to the time we went out for the elections in
September, not in June or July or May.
We have also confirmed more than a dozen Supreme Court Justices in
Presidential election years, and many in this Senate served at the
time. The last one we had, of course, was during President Reagan's
final year in office. We did so because we knew the Supreme Court
should not be held hostage to election-year politics; yet we are being
held hostage to election-year politics because we are not doing our
jobs. And the Supreme Court issued a couple more 4-to-4 opinions today.
I urge the majority leader to heed his own advice and to schedule a
confirmation vote for the pending lower court nominees, and I urge the
chairman of the Judiciary Committee to follow suit by scheduling
confirmation hearings for Chief Judge Garland so that we can do our
jobs.
Mr. President, I ask unanimous consent that Judge Sheindlin's op-ed
and the Marshall Project review be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Marshall Project, April 26, 2016]
What Happens When There Aren't Enough Judges to Go Around?
(By Eli Hager)
The ninth seat on the Supreme Court has been vacant for two
months.
But Antonin Scalia's chair is not the only empty one in the
vast federal judiciary, where several judgeships have
remained unfilled for 30 months or more. Around the country,
there are 84 of these vacancies, largely as a result of the
Senate's historically low rate of confirming President Barack
Obama's nominees. And since the beginning of last year, the
number of unfilled seats and pending nominations have been
steadily rising.
Down in the gears of the justice system, all those absent
judges have taken a toll.
Because courts are obligated to find ways to meet speedy-
trial rules, at least in criminal cases, the vacancies have
not caused across-the-board delays. But by all accounts, the
unconfirmed nominees--combined with what advocates say is an
insufficient number of judgeships overall--have forced the
system to find sometimes extraordinary ways to make do with
the few judges available.
Some judges, for example, are having to drive hundreds of
miles to cover the empty seats. Less-qualified magistrate
judges, senior judges who are supposed to be entering
retirement, and visiting judges who fly in from other states,
have all had to pitch in. And many of the remaining judges
say that it's hard, with such a lack of personnel, to give
every case the attention it deserves.
In the worst-hit districts, including all four districts of
Texas, some areas of Florida
[[Page S2808]]
and California, Middle Alabama, and elsewhere, the situation
is now considered an ``emergency.''
Ron Clark, chief judge of the Eastern District of Texas,
which has three judicial emergencies out of only eight total
judgeships, says that ``we're managing the best we can--but
if they don't get us another judge soon, you could start to
see some more draconian kinds of delays.''
Judicial Vacancies in the Federal Courts
In the past year, unfilled federal judgeships have been
rising dramatically. Similarly, the number of seats on the
bench considered ``emergencies''--vacant for many months with
a large caseload per judge--and the number of White House
nominations awaiting Senate confirmation have climbed.
A 2014 study by the Brennan Center for Justice found that
the vacancies led to a host of negative consequences. Among
them were unresolved motions, habeas corpuspetitions waiting
years to be heard (or being handled by law clerks instead of
judges), judges spending less time on each case, and
defendants pleading guilty because they believed a trial
would not get the timely attention it deserved.
And in civil proceedings, where the Speedy Trial Act does
not apply, longer wait times for trial are becoming more
common.
Morrison C. England Jr., chief judge of the Eastern
District of California, says that ``cases that aren't the
priority are going to get pushed back for years, literally.''
In Middle Alabama, Ricky Martin, a pastor, had been
allowing registered sex-offenders to stay in mobile homes
surrounding his church--until the state legislature made it
illegal for him to do so. Martin filed suit in August of
2014, and the local D.A. responded with a ``motion to
dismiss'' a few months later. But a judge didn't get around
to weighing in--in Martin's favor--until this April, and the
case may not actually be resolved for two more years or
longer.
The process would have taken only three to four months if
there were more judges available, says Randall Marshall,
legal director of the ACLU of Alabama.
But sometimes, the effect is the opposite: the proceedings
get rushed.
Brian McGiverin, a civil-rights lawyer in Austin, Texas,
says that because there are so few judges, the remaining ones
are all overbooked. As a result, they often ``give you a
cramped amount of time for trial, regardless of how many
witnesses you'd like to call.''
McGiverin recently assisted in the case of a woman named
Abieyuwa Ikhinmwin, who claimed that she was racially
profiled, handled with excessive force, and wrongfully
arrested by police in San Antonio.
He says the court tried to ``fast-track'' her lawsuit,
threatening to dismiss it within 21 days unless she paid a
fee and submitted additional information--which would not
have happened when there were enough judges.
Clark, chief judge in the nearby Eastern District of Texas,
says that ``with so few of us, it's definitely harder to have
the flexibility that a defense lawyer might want us to. So
the answer sometimes has to be, `No, sorry, we can't offer
that time in court.' ''
Meanwhile, the consequences of too few judges are worsened
in the most geographically expansive districts.
``When there's a missing judge in a state like ours,''
Clark says, ``it's not like we can walk down the hall and
take care of a trial for him--the trip from Beaumont to Plano
is five and a half hours, and that's if the traffic is
good.''
He and the other judges in his district waste about two
days a week on the road.
``We're one traffic accident away from the wheels falling
off,'' he says.
As an additional stop-gap measure, the worst-hit districts
are relying on pinch hitters.
In Middle Alabama, less-experienced magistrate judges (who
are appointed directly by the district judges, rather than
nominated by the president and confirmed by the Senate) have
for several years been doing work once reserved for the
district judges, from taking guilty pleas to overseeing
evidentiary hearings. The district is also getting last-
minute help from visiting judges, who have traveled from Iowa
and Florida to pitch in.
``When there are judges who come in from elsewhere,'' says
Christine Freeman, executive director of the federal
defender's office in Montgomery, Ala., ``they are strangers
to us, to the prosecutor, to court officials, to the
probation officers, to every single person involved in a
case.''
``That makes it very hard to predict outcomes for your
client,'' Freeman adds.
But the lack of judges has perhaps fallen hardest on senior
judges, who, because they are typically over 70 or 80 years
old, usually take on 50 percent or less of a full caseload.
Instead, in Middle Alabama and elsewhere, their caseloads
have been 150 or even 200 percent of normal.
``I'm 73, and I'd like to be able to say, `Look, I'm done,
I want to spend more time with my family,' '' says Michael
Schneider, one of the senior judges in Eastern Texas. ``I'm
encouraged that the president has nominated someone, but I
can't actually cut back until a nominee is approved.''
``I'm going to be at this for awhile,'' Schneider adds.
``It's frustrating.''
England, the chief judge in Eastern California, says that
senior judges are the only reason why vacancies haven't
become more of a crisis.
``We are living and dying with our senior judges,'' England
says. ``They're taking on cases they shouldn't have to, but
that's what's saving us.''
Of course, federal courts being overburdened is the symptom
of more than simply a lack of nominations and confirmations.
Since 1990, Congress has not passed major legislation
creating new judgeships, even as the war on drugs, and now
the surge in prosecution of undocumented immigrants, have
jammed up the system with exponentially more cases.
As a result, by 2013, there was a 39 percent uptick in the
number of overall filings, while only 4 percent more judges
were added to handle all that extra work.
Throw in the higher-than-normal number of vacancies, and
it's a recipe for an overburdened judiciary. After a three-
year wait, for instance, the Eastern District of California
finally got a vacancy filled last October. But Chief Judge
England says the crushing burden of too few judges hasn't
lessened.
``One way or the other, Congress would need to give this
district more judges,'' he says. ``We need help--we have too
many trials. I'm booked for 2016 and 2017 already.''
____
[From the New York Times, May 6, 2016]
America's Trial Court Judges: Our Front Line for Justice
(By Shira A. Scheindlin)
The outcry over the Senate's failure to hold hearings on
Judge Merrick Garland's nomination to the Supreme Court is
fully justified. But that isn't the only judiciary scandal on
Capitol Hill. Even as the spotlight shines on the high court,
the Senate has refused to confirm dozens of uncontroversial
nominees to fill vacancies in the federal trial courts.
Such obstructionism has become an everyday occurrence. Just
last week, Senate Republicans refused to vote on 11 federal
district court nominees whom the Judiciary Committee had
already approved--even those who were supported by
Republicans in their home states. During President George W.
Bush's last two years in office, the Democratic-controlled
Senate confirmed about 57 district court judges. Since
Republicans took power in 2014, the Senate has confirmed only
15 of President Obama's trial court nominees.
This is an even bigger problem than Judge Garland's stalled
nomination. Trial court judges do the bulk of the work in the
federal court system: Last year nearly 375,000 new cases were
filed, while the Supreme Court justices issued just under 75
opinions. And because most trial court decisions are never
appealed, they become the final word in significant disputes
that affect millions of Americans.
I know this firsthand. I served as a trial judge for over
21 years, and stepped down from the bench last week. As I
walked out of a federal courthouse in Lower Manhattan on one
of my last days, an African-American United States marshal
asked me if he could have a word.
He explained that he had grown up in New York City's public
housing, and thanked me for my 2013 decision in the ``stop
and frisk'' case. (I ruled that the New York Police
Department's practice in which police officers stopped
hundreds of thousands of New Yorkers without reasonable
suspicion, a vast majority of whom were innocent African-
Americans and Latinos, was unconstitutional.)
``You just can't know what a difference this has made to so
many people in my community,'' he said. ``You can't even
imagine.''
But I think I can. At the policy's peak in 2011, officers
stopped nearly 700,000 people. That number dropped to about
23,000 last year, and the policy change was not accompanied
by a rise in serious crime, despite dire predictions to the
contrary. As a result of my rulings and community outcry, the
Police Department agreed to reforms, which include better
record keeping, the use of police body cameras and the
abandonment of racial profiling.
Other examples abound. In 1974, Judge Jack Weinstein of the
Eastern District of New York found the de facto segregation
in a Coney Island public school to be unconstitutional, a
ruling affirmed on appeal. The school was ultimately
integrated under his supervision, and without the ``white
flight'' that politicians had feared would result.
And in one of the highest-profile civil rights cases ever
in a trial court, Leonard about a decade later that both the
housing and schools in Yonkers were intentionally segregated,
and ordered construction of integrated housing in the city.
An appeals court upheld this ruling, which, despite years of
public protest, immensely improved the living conditions for
thousands of Yonkers residents.
The influence of district judges has likewise had an effect
on national security. In the mid-2000s, Judge Alvin
Hellerstein, also from the Southern District of New York,
ordered the government to disclose photographs under the
Freedom of Information Act that depict the abuse of Abu
Ghraib detainees, which was affirmed by the appellate court.
Judge Hellerstein also effectively forced the government to
turn over the Department of Justice's infamous ``torture
memos,'' which incited a national conversation about whether
torture is ever appropriate.
Not every decision by district court judges benefits the
public: Last week Judge Thomas Schroeder of North Carolina's
Middle District upheld myriad legislative changes to the
state's voting rules that will result in reduced voting
opportunities for minorities, unless reversed.
[[Page S2809]]
Whether Judge Garland should be confirmed or not, there can
be no denying that Supreme Court nominations are inherently
political. So it's no surprise that they are drawn out for
ideological or partisan reasons. But district court
nominations are different. Ideology is not the issue:
Experience and competence are the only criteria.
And yet the Senate majority's policy of delaying qualified
district-court nominations on purely political grounds
undermines public trust in the impartiality and legitimacy of
the judiciary. This is especially worrisome because the
public's understanding of how justice is administered is most
likely based on its access to and experience with lower court
proceedings.
Presidential debates have focused on the Islamic State,
trade pacts and immigration policy; meanwhile, the next
president will most likely appoint 130 trial judges over the
next four years. The public needs to know what's at stake.
Trial judges must spot the issues, decide the outcomes and
fashion the remedies in all kinds of disputes. I cannot force
this Congress to do its job. But I urge voters not to forget
the White House's power to appoint all judges when they
choose the next president.
Mr. LEAHY. Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Ms. MIKULSKI. Thank you very much, Mr. President.
I rise this evening in support of the nomination of Paula Xinis to
serve on the District Court of Maryland. I know Senator Cardin will be
coming to the floor shortly to also comment on Ms. Xinis's nomination.
Senator Cardin and I recommended Ms. Xinis to President Obama with the
utmost confidence in her abilities, talent, and competence for the job.
She is a brilliant litigator and a dedicated public servant. The
Judiciary Committee agreed with us, because they also voted her out of
the committee unanimously.
I thank Senator McConnell, the majority leader, for scheduling this
vote; Senator Grassley for moving this nomination; and I also thank my
very good and dear friend Senator Leahy, the vice chairman of the
committee, who has been a strong advocate not only for this nomination
but for moving all nominations forward, as voted out by the committee
in a prompt way.
As I talk about Ms. Xinis, I want the Presiding Officer to know that
I have recommended several judicial nominees for district and appellate
courts, and I take my advise and consent responsibility very seriously.
When I recommend to the President a position on the district court, I
have four criteria: absolute integrity, judicial competence and
temperament, a commitment to core constitutional principles, and a
history of civic engagement in Maryland.
Ms. Xinis exceeds these expectations over and beyond. She has
dedicated her career to the rule of law, achieving equal justice under
the law and also being an advocate for the underdog. She is truly an
outstanding nominee with a long history of public service--14 years as
a Federal public defender, handling everything from the most simple
misdemeanors to very complex white-collar crimes. She has also taken on
extra duties, training staff and being an attorney supervisor of
research and writing, proving time and time again how committed and
dedicated she is.
She worked as a clerk for the distinguished and esteemed Judge Diana
Gribbon Motz, a well-respected judge on the Fourth Circuit. She also
has been a member of the private sector as a senior trial partner in a
private law firm in Baltimore, taking on complex civil litigation and
protecting those who have been harmed by lead paint or carbon monoxide
poisoning.
Judge Motz, in recommending Ms. Xinis to me, said she is so
intelligent and generous in terms of working very hard, in terms of
knowing the law and practicing the law, but she also commented on her
work ethic, praising her skill in the courtroom and her service to the
community.
She has mentored children, provided legal advice to at-need
communities in Baltimore, and served on numerous bar associations. She
has deep appreciation for the law and everything that it means. I do
believe she will be an outstanding judge.
There have been criticisms raised of Ms. Xinis, and the criticisms
have centered around her support within the law enforcement community.
Flashing yellow lights were raised by one of our colleagues on the
other side of the aisle, asking whether she had an impartial attitude
toward police officers. I have four letters here from retired police
officers in Baltimore City all attesting to that.
Mr. President, I ask unanimous consent to have these letters printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
City of Charlottesville,
Police Department,
Charlottesville, VA, August 30, 2015.
Re Letter in Support of Paula Xinis, for the position of
United States District Judge for the District of
Maryland.
Hon. Charles Grassley,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Hon. Patrick Leahy,
Ranking Member, U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Honorable Senators Grassley and Leahy: My name is
Timothy Longo and I currently serve as the Chief of Police in
the City of Charlottesville, Virginia. I am a career law
enforcement officer having previously served as a Colonel
with the Baltimore City Police Department, retiring in March
of 2000. In addition, to my professional training and
experience, I am proud to have received my law degree from
the University of Baltimore and was admitted to the Maryland
Bar in December of 1993.
For the past 25 years, I have had the honor of instructing
thousands of law enforcement officers and administrators on
matters of policy, law, and generally accepted policing
practices. In addition to my sworn duties and
responsibilities, I have served on many occasions as a police
practices expert assisting both plaintiff and defense counsel
in civil rights claims resulting from the actions of law
enforcement officers, and the policies and practices related
to those actions. It is in this capacity that I have come to
know and respect Paula Xinis. I have come to learn that the
Senate Judiciary Committee is presently considering Paula's
candidacy and I respectfully write in support of her
appointment.
Paula and I met several years ago when I was asked to
assist her in the evaluation of a civil rights claim that she
had filed on behalf of a client related to the actions of a
municipal law enforcement officer and the agency and
municipality that employed that officer. The claim arose out
of a use of force incident which resulted in serious and
permanent injury. I firmly believe that cases such as this
requires not only a thorough understanding of Section 1983
litigation and that of municipal liability, but an equally
thorough understanding of police training, policy, and
practice.
For more than a year, I worked closely with Paula as she
sought to better understand how a police officer is trained,
the policies, principles, and practices that guide their
work, as well as the manner in which police departments
investigate incidents that result in force. What I discovered
from the onset, and frankly what continued to impress me as I
worked with Paula on this important matter, is the thoughtful
and objective manner in which she approached both the facts
and the theory of her client's case.
Although the complaint she had advanced on behalf of her
client depicted a series of facts that one may find was
clearly contrary to generally accepted policing practices on
the face of her client's complaint, she consistently
endeavored to examine that complaint and the facts in the
support of it through the lenses of a career law enforcement
officer who had not only worked the streets of a large
metropolitan city, instructed thousands in policing, but also
served as a policy maker as to the training of police
officers and practices that guide that work. She and I spoke
countless times, and at great length, about not only that
particular case but the way that police officers go about
their work and the decisions that they make quickly and
oftentimes without much deliberation.
Paula was amazingly careful to reserve her own judgment and
opinion as to the appropriateness of the officer's conduct
and that of the agency's policy maker and listened carefully
to my assessment of her claim and my opinion as to its
propriety in light of my specialized training and experience.
America's law enforcement officers are facing incredibly
difficult challenges as we closely evaluate the manner in
which we go about our work, carefully consider re-shaping and
reforming our practices, and endeavor to strengthen the
necessary relationships we have with those whom we serve.
Undoubtedly, law enforcement officers, policy makers, and
municipalities will more frequently find themselves being
scrutinized by our trial and appellate courts, and ultimately
the court of public opinion. The nature of our work and
recent police-citizen interactions that have ended tragically
makes this reality most certain. Thus, it has never been more
critical to connect the right people to this important work;
not just on the front line but throughout the criminal
justice continuum.
It is with a tremendous amount of pride and the utmost
confidence that I respectfully ask the Senate of the United
States to confirm the appointment of Paula Xinis to the
United States District Court for the District of Maryland. I
have absolutely no doubt that Paula will bring the competence
and objectivity that is necessary to discharge the
[[Page S2810]]
duties of such an important position. She has my confidence,
respect, and unfettered support.
If I can be of further assistance, please don't hesitate to
call upon me.
Meanwhile, I thank you for your time and thoughtful
consideration.
Respectfully Submitted,
Timothy John Longo, Sr.,
Chief of Police,
City of Charlottesville, Virginia.
____
Police Department,
Baltimore, Maryland,
4 September 2015.
To: Senator Patrick Leahy.
From: Sgt Brian Atwood.
Subject: Recommendation for Paula Xinis to U.S. District
Judge for Md.
Sir: My name is Sgt Brian Atwood; I am a twenty year
veteran with the Baltimore Police Department, I started my
career in May of 1995 in the Western District. During my
career I have received three Bronze Stars for Valor, two Life
Saving awards and have received numerous unit citations of. I
have held several positions of authority include: Field
Training Officer, Officer in Charge, Sergeant and Sergeant in
Charge. I have been assigned to follow district units:
Patrol, Flex Units, Drug Unit, and Firearm Instructor. I'm
currently assigned to the departments, Special Operation
Section. I have held tactical positions as both an officer
and sergeant within the elite Emergency Service Unit. My
current assignment is supervising sergeant of the K-9 unit.
I am also a passed board member of Maryland's largest FOP
with over 5000 active and retired members. As a member of FOP
Lodge #3, I have held numerous positions within our lodge to
include. Grievance Rep, Grievance Chairman, P.A.C funds
Chairman, Legal Advisory Board, Contract Team Chairman, and
was elected to the position of Vice President for our Lodge.
It is my understanding that the Senate Judiciary Committee
will be considering Ms. Paula Xinis for United States
District Judge. I would proudly recommend Ms Xinis to the
position of U.S District Judge for Maryland. Ms Xinis is a
person of honor, integrity, fairness and would be outstanding
in that position.
In closing as a 20 year member of the law enforcement
community, I know first hand the need to have judges that are
well balanced, fair and great listeners. It is equally
important that our judges take the rule of law and always
apply it equally, with understanding and compassion in there
decision. That is why I proudly recommend Ms. Paula Xinis to
the position of U.S. District Judge.
Respectfully,
Sgt. Brian Atwood.
____
Abingdon, MD, August 31, 2015.
Re Letter in Support of Judicial Nomination of Paula Xinis
for the United States District Court for the District of
Maryland.
Hon. Charles Grassley,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Hon. Patrick Leahy,
Ranking Member, U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Senators Grassley and Leahy: Please accept this letter
as support for the nomination of Paula Xinis as a United
States District Judge for the District of Maryland. I was
employed as a Police Officer with the Baltimore Police
Department from 1987 until the time of my retirement in
September 2014. While assigned to the Patrol Division, I
handled calls for service related to violations of Maryland's
handgun and narcotics laws. I also actively participated in
shooting investigations. I also spent thirteen years assigned
to the Tactical Unit/Quick Response Team. During my tenure
with the Tactical Unit, one of the Unit's primary focus was
serving high risk warrants for the Homicide and Robbery
Units. When we weren't training, serving warrants and/or
responding to barricade/hostage situations, we were utilized
as suppression unit for illegal handguns and narcotics
violations. For five straight years, my partner and I
maintained the highest number of gun seizures/arrests and the
largest narcotics cases within the Baltimore City Police
Tactical Section. We received numerous commendations for our
handgun arrests. Throughout the course of my career, I was
called upon to testify in both the District and Circuit
Courts in Baltimore City and County, as well as the United
States District Court for the District of Maryland in
Baltimore.
Unfortunately, my successful career in law enforcement was
derailed in 2014 when I encountered difficulties in
connection with a call for service. I was improperly and
unfairly accuse of wrongdoing which led to criminal charges.
This was a new experience for me as I had never even been
disciplined during my career. I felt vulnerable and betrayed.
It was clear to me and my wife that we needed legal
representation that would aggressively fight to vindicate me.
My wife, whose practice is primarily the defense of civil
cases, had been involved in a case in Baltimore City where
Ms. Xinis represented the plaintiffs several years prior.
During the course of that case, she would often remark that
Ms. Xinis was a worthy advocate, yet fair and open-minded.
Because of her experience with Ms. Xinis, my wife contacted
her on a weekend to seek legal counsel and advice. From that
point forward, Ms. Xinis made herself available to us, even
if it was to simply reassure us that we were in good hands.
Throughout the entire ordeal, I spent countless hours with
Paula and her team. They worked diligently seeking the
evidence needed to exonerate me. Although it was an extremely
dark time for me, she always made me feel confident that she
``had my back'' and that she was dedicated to seeing that I
was vindicated. Thankfully, as a result of her tireless
efforts on my behalf, all of the charges brought against me
were dismissed earlier this year.
I can personally attest to Ms. Xinis' legal acumen and her
commitment to seeking justice, regardless of who the
defendant may be. I observed her demonstrate the ability to
forcefully argue her position to the court while being
respectful to the court and other counsel. She can be a
fierce advocate while maintaining a reassuring demeanor. My
exposure to the judicial process throughout the course of my
law enforcement career and as an officer who was wrongfully
accused, has provided me with insight as to what is required
to be an effective, fair and open-minded jurist. I can state
without a doubt that Ms. Xinis possesses all of the necessary
traits to be an asset to the federal bench in Maryland. The
Committee could not find a more qualified candidate to fill
the vacancy in Maryland.
Sincerely,
Thomas J. Schmidt, Sr.
____
September 1, 2015.
Re Support of Paula Xinis, for United States District Judge
for the District of Maryland.
Dear Senator Patrick Leahy (Ranking Member) United States
Senate Committee on the Judiciary: My name is Gregory Eads,
Jr. I am a retired Baltimore City Police Officer. I served 22
years on the Baltimore City Police Department and retired in
November 2014. I was currently assigned to the Bomb Squad and
Emergency Services Unit where primarily I responded to
suspicious package calls, bomb sweeps for visiting V.I.P's
and stadium events. In my tenure as a police officer with the
department I've acquired several skills and with worked in
numerous specialized units. I have worked in Patrol,
Bike(flex) squad, Drug enforcement unit, SWAT, Organized
Crime Unit, Firearms Apprehension Strike Team. I am highly
decorated officer that was awarded several unit citations,
accommodations, and bronze star for valor.
I've come to learn the senate Judiciary Committee is
considering Paula for a United States District Judge. I want
to extend my support for Paula as a candidate. Paula and I
met at her law firm as she was preparing to defend a co-
worker in criminal case. She was interviewing me as a
character witness. During this exchange we discussed my
family, experiences and my background being a second
generation Police Officer in Baltimore City. We share some
similarities on life and making a difference in the world.
Paula has a young child, demanding career and is very well
known among her peers.
I was most impressed with her attention to detail, due
diligence and preparation of the case. She is hardworking,
open minded, and fair. I believe she would be an asset as she
exemplifies the firm qualities that a United States District
Court Judge possesses. As a police officer we need Judges
that are fair, impartial and firm on the bench. With Paula
being confirmed by the Senate Committee you will have that
Judge I am referring to. I am grateful that I had the
pleasure of meeting and working with Paula.
Sincerely,
Gregory Eads Jr.,
(Retired) BPD.
Ms. MIKULSKI. One letter is from someone who is a 20-year veteran,
working in the Western District. The Western District is where they
filmed ``The Wire.'' It is rough, tough, and hardscrabble. This former
police sergeant said:
In closing, as a 20-year member of the law enforcement
community, I know firsthand the need to have judges that are
well balanced, fair and great listeners. . . . That is why I
proudly recommend Ms. Paula Xinis to the position of U.S.
District Judge.
I won't go through every letter--the Record will speak for itself--
but when you have retired police officers, those who are not on duty
now but who worked with her hands-on and who know the way she works
with law enforcement, the way she engages with them when she was a
public defender and so on--I think these letters speak for themselves.
In closing, let me say this: The job of a U.S. Senator to recommend
someone to be a judge is indeed a great honor, but it is an enormous
responsibility. I take it very seriously, and I would only recommend
somebody who was truly qualified to render impartial justice and bring
the competency and the temperament to do that. I believe Ms. Xinis
possesses competency, the judicial temperament, and a real commitment
to equal justice under the law.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
[[Page S2811]]
Mr. CARDIN. Mr. President, I join Senator Mikulski, as the two
Senators from Maryland, in strongly recommending the favorable
consideration of Paula Xinis for the district court judgeship of
Maryland.
I first want to acknowledge the leadership of our senior Senator from
Maryland in developing a process in which we screen the very most
talented people for opportunities to serve on our Federal bench. This
is a professional process that we have gone forward with under Senator
Mikulski's leadership in order to try to get the very best on our
courts.
It is not a partisan issue at all. It is strictly looking for those
who have the judicial temperament and experience to be able to be an
outstanding member of the bench. We have done that on previous
nominations that have been considered on this floor, and Paula Xinis
follows in that tradition. I thank Senator Mikulski for the process
that we went forward on in making this recommendation to President
Obama.
I might tell you, President Obama then forwarded the nomination to
the Senate in March of last year--in March of 2015. It took 6 months
for the Judiciary Committee to make its recommendations to the full
floor in September of 2015. It was not a controversial nomination in
the committee. The committee reviewed all of Ms. Xinis's background,
record, everything that she has done, and on a very strong voice vote
brought her forward to the full floor.
So this is not a controversial nomination. Because of the delay,
originally to fill the vacancy of Deborah Chasanow, who took senior
status, it is now a judicial emergency. People of Maryland are in a
desperate situation to have an adequate number of judges to handle the
workload in our district. It is critical we move forward in the
confirmation of this nominee. Senator Mikulski has pointed out how
qualified this person is.
I can tell you, over the last several months, I have been stopped on
numerous occasions by attorneys and nonattorneys in Maryland saying:
Why isn't Paula Xinis confirmed by now? She is a wonderful person. We
have had experience with her.
I have heard glowing comments about her dedication to our community,
her professional competency, and her qualifications to serve on the
U.S. district court. It is for that reason the ABA gave her the highest
ratings in their review of her qualifications. She has been in the
private practice of law at Murphy, Falcon & Murphy. After just 2 years,
she was made a partner in that firm. She has been an assistant Federal
public defender, showing her compassion to represent some of the most
difficult cases in our criminal justice system.
She was a law clerk for Judge Motz on the Fourth Circuit Court of
Appeals. She has devoted her life to understanding our legal system but
also to carrying out its major charge to make sure we have equal access
to justice under the law. She got her JD from Yale Law School, her BA
from the University of Virginia.
What I really appreciated, in getting to know Paula Xinis better
during this confirmation process, was getting to know her family
background; that is, to represent the American story. Her father was an
immigrant from Greece, came over with very little resources. They were
able to take advantage of the opportunities in this country as an
immigrant family. Now Paula Xinis has been nominated by President Obama
to serve on the district court for Maryland.
Quite a success story, but Paula Xinis has never forgotten her
background. She has always been giving back to our community. She is
known for her pro bono work for her church members in the church she
belongs to, but as Senator Mikulski pointed out, in working with the
House of Ruth in a mentoring program, she has taken on some of the most
difficult challenges to affect the lives of people who are less
fortunate. She has an 11-year-old who is like her second son whom she
has mentored and given a real opportunity in our community.
She has the whole package. She will make a great district judge.
Senator Mikulski mentioned the comments that were made on the floor in
regard to her support for law enforcement for police officers. I hope,
if anyone has any questions about that, read the letters Senator
Mikulski put into the Record. I know of some of these cases. I know of
the case of Timothy John Longo, who served with the Baltimore City
Police Department and is now the chief of police for Charlottesville,
VA.
He said:
I have absolutely no doubt that Paula will bring the
competency and objectivity that is necessary to discharge the
duty of such an important position. She has my confidence,
respect and unfettered support.
Then there is Thomas Schmidt, who Ms. Xinis represented when he was
accused of wrongdoing as a police officer. She represented him in the
most difficult challenge. Mr. Schmidt said:
Throughout the entire ordeal, I spent countless hours with
Paula and her team. They worked diligently seeking the
evidence needed to exonerate me. Although it was an extremely
dark time for me, she always made me feel confident that she
had my back, and that she was dedicated to seeing that I was
vindicated. Thankfully, as a result of her tireless efforts
on my behalf, all the charges brought against me were
dismissed earlier this year.
She has been in the forefront of defending those who were defending
us as first responders. There are other letters that have been written
by police officers indicating that Paula Xinis contains exactly what
they want to see in a judge: someone who is fair and impartial and who
will carry out the rule of law in an objective manner. So for all of
those reasons, we bring you a nominee who is eminently qualified and
deserves the support of this body. We would urge our colleagues to
support this nomination.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Today the Senate will vote on the nomination of Paula
Xinis to be a judge for the District of Maryland. I will support that
nomination.
Mr. President, I come to the floor at this time to also talk about
judges generally. I have been hearing the usual complaints from Members
of the minority party regarding the pace of judicial nominations. I
would urge my colleagues to step back and look at the bigger picture.
The relevant number to consider is the number of confirmations during
an entire Presidency. At this point in his Presidency, President George
W. Bush had 303 judicial nominees confirmed. After tonight's vote, so
far in his Presidency, President Obama will have 325 confirmed. Those
are 22 more nominees than Bush had.
So as we continue to hear complaints about how many judges are being
confirmed, we should put these complaints in context. The simple fact
is, President Obama has had quite a few more nominees confirmed than
President Bush did.
Further, I would note that as chairman, after this Wednesday, I will
have held hearings for the same number of nominees this Congress has
had as the last chairman of the committee did to this point during the
last 2 years of President Bush's Presidency. At this point in the 2008
Congress--that would be the 110th Congress--the former chairman held
hearings on 43 nominees. At the end of May of this year, we will have
held hearings on 43 nominees thus far in the 114th Congress.
I yield back all remaining time.
The PRESIDING OFFICER. Without objection, it is so ordered.
All time is yielded back.
The question is, Will the Senate advise and consent to the Xinis
nomination?
Mr. GRASSLEY. 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 bill clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Arkansas (Mr. Cotton), the Senator from Texas (Mr. Cruz),
the Senator from Wyoming (Mr. Enzi), the Senator from Arizona (Mr.
Flake), the Senator from Wisconsin (Mr. Johnson), the Senator from
Kansas (Mr. Moran), the Senator from Kansas (Mr. Roberts), the Senator
from Alaska (Mr. Sullivan), the Senator from Pennsylvania (Mr. Toomey),
and the Senator from Louisiana (Mr. Vitter).
Mr. DURBIN. I announce that the Senator from Maine (Mr. King), the
Senator from Vermont (Mr. Sanders),
[[Page S2812]]
and the Senator from Oregon (Mr. Wyden) are necessarily absent.
The PRESIDING OFFICER (Mr. Lankford). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 53, nays 34, as follows:
[Rollcall Vote No. 72 Ex.]
YEAS--53
Alexander
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coats
Collins
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Graham
Grassley
Hatch
Heinrich
Heitkamp
Hirono
Kaine
Kirk
Klobuchar
Leahy
Manchin
Markey
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Peters
Portman
Reed
Reid
Rubio
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Warner
Warren
Whitehouse
NAYS--34
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Cochran
Corker
Cornyn
Crapo
Daines
Ernst
Fischer
Gardner
Heller
Hoeven
Inhofe
Isakson
Lankford
Lee
McCain
Murkowski
Paul
Perdue
Risch
Rounds
Sasse
Scott
Sessions
Shelby
Thune
Tillis
Wicker
NOT VOTING--13
Cotton
Cruz
Enzi
Flake
Johnson
King
Moran
Roberts
Sanders
Sullivan
Toomey
Vitter
Wyden
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table, and the
President will be immediately notified of the Senate's action.
____________________