[Congressional Record (Bound Edition), Volume 149 (2003), Part 10]
[Senate]
[Pages 14067-14072]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF MICHAEL CHERTOFF, OF NEW JERSEY, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE THIRD CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the hour of 5:15 
having arrived, 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 Michael 
Chertoff, of New Jersey, to be United States Circuit Judge for the 
Third Circuit.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise today in support of the nomination 
of Michael Chertoff to the U.S. Court of Appeals for the Third Circuit. 
I happen to be admitted to the bar of the Third Circuit. I can't 
imagine a better person we can put on that circuit than Michael 
Chertoff.
  This is not the first time this body has had the opportunity to 
consider Mr. Chertoff's qualifications. In May 2001, my colleagues and 
I voted to confirm his nomination to the post of Assistant Attorney 
General for the Criminal Division of the United States Department of 
Justice. He has worked tirelessly in that position on behalf of our 
country prosecuting those whose specific goal is to harm America, and 
we are grateful for his service.
  The same credentials and experience that paved the way for Mr. 
Chertoff's confirmation as Assistant Attorney General demonstrate that 
he will make an exceptional Federal appellate judge. He graduated magna 
cum laude from Harvard College in 1975 and magna cum laude from Harvard 
Law School in 1978. After his graduation, he served as a law clerk to 
United States Supreme Court Justice William J. Brennan, Jr.
  Following his clerkship, he embarked on a long and distinguished 
professional career dedicated to fighting crime and corruption that 
began in the United States Attorney's Office for the Southern District 
of New York in 1983, where he served as a line prosecutor. In 1987, he 
was promoted to First Assistant U.S. Attorney for the District of New 
Jersey. In 1990, former President Bush appointed him to be the United 
States Attorney for the District of New Jersey.
  During his time as a Federal prosecutor, Mr. Chertoff gained 
extensive experience in all phases of criminal investigations and 
prosecutions. He handled major organized crime, fraud, and corruption 
prosecutions. Here are a few examples:
  Mr. Chertoff successfully prosecuted a RICO murder case involving the 
third ranking member of the Genovese La Cosa Nostra family and others. 
The principal defendants were convicted of conspiring to murder John 
Gotti and murdering a mob associate. They each received 75-to-80 year 
prison terms.
  Mr. Chertoff successfully prosecuted the Mafia commission case, which 
charged the bosses of all five New York La Cosa Nostra families with 
operating a national commission through a pattern of racketeering acts 
such as extortion, loan sharking, and the murders of a mafia boss and 
two associates.
  Mr. Chertoff successfully prosecuted the mail fraud, bank fraud, and 
tax evasion trial of the mayor of Jersey City, NJ. The case arose out 
of an investment fraud perpetrated by the mayor while he was in office. 
The defendant was convicted of 14 felonies, sentenced to jail, and 
removed from office.
  Mr. Chertoff also successfully prosecuted Arthur and Irene Seale for 
the 1992 kidnapping and murder of Exxon executive Sidney Reso, a tragic 
case which garnered substantial media attention.
  This record alone demonstrates that Michael Chertoff has the 
experience and qualifications to serve as a judge on the Third Circuit. 
However, his public service is not limited to holding high level 
government positions. For example:
  Mr. Chertoff served as special counsel to the New Jersey Senate 
Judiciary Committee in its investigation of racial profiling. Under his 
counsel, the

[[Page 14068]]

Committee held nine hearings examining racial profiling allegations, 
concluding that the former attorney general had misled the Committee 
and had attempted to cover up the extent of racial profiling in New 
Jersey from the U.S. Department of Justice.
  After a convicted rapist was mistakenly released from prison, Mr. 
Chertoff again served as Special Counsel for the New Jersey Senate 
Judiciary Committee during its hearings into the application of Megan's 
Law, which requires State correction officials to notify prosecutors 90 
days prior to the release of a sex offender, and the reasons why it was 
not being systematically employed by the State.
  Mr. Chertoff also represented three indigent defendants on death row 
in Arkansas through a program operated by the NAACP legal defense fund. 
The death sentences of all three defendants were overturned on the 
appeal that he handled.
  Mr. Chertoff has received numerous awards and honors, including an 
honorary law degree from Seton Hall University in 2002; the Anti-
Defamation League Distinguished Public Service Award in 1992; and in 
1987 the U.S. Department of Justice John Marshall Award for Outstanding 
Achievement in Trial.
  These are but a few examples of public service that reinforce the 
true nature of Michael Chertoff's character. Recognizing this level of 
excellence, the American Bar Association has given Mr. Chertoff a 
unanimous well-qualified rating, the highest possible designation.
  Plenty of others share the ABA's view of Mr. Chertoff. In a joint 
press release, New Jersey's two Democratic Senators, Jon Corzine and 
Frank Lautenberg, expressed their strong support for Mr. Chertoff, 
stating, ``We are pleased that the President has selected a 
distinguished New Jerseyan for this important seat on the U.S. Court of 
Appeals for the Third Circuit. Michael Chertoff is a highly intelligent 
and competent lawyer with a long and impressive record of public 
service.''
  In a March 11, 2003 editorial, the Bergen Record endorsed Mr. 
Chertoff's nomination, calling it ``a refreshing change.'' The 
newspaper continued, ``Mr. Chertoff is exactly the type of nominee the 
nation needs for federal judgeships,'' and concluded, ``Mr. Chertoff is 
the type of smart, non-ideological high achiever whom Presidents of 
both parties should consider for the bench.''
  Mr. President, I have touched on only some of the attributes and 
accomplishments that demonstrate Michael Chertoff's overwhelming 
qualifications for the Third Circuit. He will be an outstanding Federal 
appellate judge, and I urge my colleagues to vote in favor of his 
nomination.
  Mr. President, I notice the distinguished Senator from Pennsylvania 
is here. Both he and I are admitted to the bar of the Third Circuit 
Court of Appeals. I am also admitted to the bar of the Tenth Circuit 
Court of Appeals.
  I yield the floor so the distinguished Senator from Pennsylvania can 
make his statement.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, it is especially appropriate for members 
of the Court of Appeals for the Third Circuit to have a little special 
understanding of the needs of that court, and the Court of Appeals for 
the Third Circuit is very badly overworked at the present time and very 
much in need of judicial replacements. The court has served under the 
superb leadership of Chief Justice Edward R. Becker, and I know 
personally from my discussions with him and the new Chief Judge, 
Anthony Scirica, the tremendous backlog and tremendous pressures the 
court of appeals has for the very busy States of Pennsylvania, New 
Jersey, and Delaware. I am pleased to see that Michael Chertoff is now 
coming up for a vote before the Senate. He has an extraordinary 
record--Harvard undergraduate, Bachelor's degree, magna cum laude, 
1975; Harvard Law School, again magna cum laude, in 1978. He has been 
engaged in the private practice of law. He has served as assistant U.S. 
attorney for the Southern District of New York, which is one of the 
toughest, most complicated jurisdictions. They handle very difficult 
cases. Then he became an assistant U.S. attorney for the District of 
New Jersey, moved up the ranks to be first assistant, and then later 
U.S. attorney for the District of New Jersey. Again, that is a 
jurisdiction which has very complicated cases.
  He has served as minority counsel for the Banking Committee. He has 
been the Assistant Attorney General in charge of the Criminal Division. 
He has had very wide experience in both civil and criminal law, and I 
think he comes to the position for the Court of Appeals for the Third 
Circuit with extraordinary qualifications.
  It is my hope the vote which we are having today on Michael Chertoff 
might be an indication the so-called logjam on filibusters will be 
broken. The Rules Committee last week held a hearing on a variety of 
ways to deal with the filibuster. It had been my hope during the 107th 
Congress, before the filibuster was tried, that we might find a 
protocol, which would work regardless of who controlled the White 
House, and regardless of who controlled the Senate.
  When President Clinton was in the White House and Republicans 
controlled the Senate, it was my view, stated on the floor at the time, 
that we should have handled President Clinton's nominations 
differently. We should have processed them in a more expeditious 
manner. Finally, we did handle quite a number of the judges who moved 
through after some judicial delays--Judge Berzon, and others.
  When the Democrats controlled the Senate in 107th Congress and 
President Bush was in the White House, the situation was reversed. It 
was my hope at that time we might find some protocol which I had 
proposed, one specifically which would establish a timetable: Sixty 
days after the nomination was submitted to the Senate there would be a 
hearing by the Judiciary Committee; Sixty days later there would be 
action by the Judiciary Committee voting up or down; Sixty days later 
there would be floor action in the Senate.
  Those timetables were not written in stone. They could have varied. 
They would be subject to a modification if cause was shown by the 
chairman of the committee upon notice to the ranking member or by the 
majority leader listing it for the full Senate action upon notice to 
the leader of the minority party.
  It was my view at that time that we had so many votes which were 
party line that if it was a party-line vote the matter would then go to 
the full Senate for resolution. That was before advent of the 
filibuster. The filibuster cut new ground. It was unprecedented in the 
Senate for a filibuster to be lodged against a Court of Appeals judge. 
Once before in the history of the Senate was there a filibuster, and 
that was when Associate Justice Abe Fortas was considered for Chief 
Justice of the United States. That was a bipartisan filibuster. There 
were integrity issues there which were very different from the 
filibusters which have been mounted during the 108th Congress where, as 
I say, this unprecedented action has been taken. That caused a good 
deal of consternation on this side of the aisle, and I think a good 
deal of consternation in the country.
  A number of options were considered where the rule might be changed. 
One proposal has been to have the first vote require 60 votes and on 
subsequent votes down to 51. My frank view is that is unlikely to be 
accepted because it isn't very difficult to have a series of cloture 
motions filed.
  For those who may be wondering and for anyone watching C-SPAN II, a 
cloture motion is a motion filed to cut off debate. The current rule 
requires 60 votes to cut off debate.
  When the logjam continues, there has been the suggestion of what we 
refer to colloquially as the ``nuclear option'' where there might be a 
ruling of the Chair that requires 60 votes, and that ruling could be 
challenged. On a 51-vote majority, that ruling could be overturned as a 
matter of Senate precedent. That has been done on occasion in the past. 
But it is an alternative which I think would be unwise and undesirable 
if any other alternative can be found. But if we were faced with the

[[Page 14069]]

unprecedented cloture proceeding, the Senate may be driven to that 
alternative.
  What is really under consideration in many minds is whether the 
filibuster on the two circuit nominees pending is really a preliminary 
for a Supreme Court nominee. I think if that were to be the case it 
would be really most unfortunate for the judicial selection process and 
very unfortunate for the Senate, which really turns on collegiality for 
us to do our job--traditional collegiality which has been sorely 
tempted in the recent several years.
  If there had been an occasion for a filibuster on a Supreme Court 
nominee, I think that would have occurred with the nomination of 
Justice Clarence Thomas. And it was not attempted. I think it should 
not have been attempted. But that was the most hotly contested Supreme 
Court nomination during my tenure here, and I think perhaps the most 
hotly contested nomination short of the Fortas nomination in the 
history of the Court with the arguments which were raised during the 
hearings, with the arguments which were raised on the Senate floor, the 
delay, the second round of hearings, and the entire difficulties which 
surrounded that nomination. Had there been an occasion for a 
filibuster, I think that would have been the ultimate test. I repeat 
that I don't think a filibuster should have been attempted. None was. 
Justice Thomas was confirmed 52-48, which I think was a very firm 
imprimatur of regular procedure for the Senate not to filibuster but to 
vote on a majority vote.
  It is my hope that what we are doing here with Michael Chertoff will 
be a bellwether of a change of landscape and a sea change in the 
Senate, so that this confirmation is, I think, pretty much assured. I 
hope it will set the stage for affirmative votes in the Senate.
  I see other colleagues who have come to the floor with only 15 
minutes before the scheduled vote. I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thought we were going to be 
discussing the candidate for office. I am sorry we kind of got off into 
another discussion. We are not filibustering this appointment. We are 
happy about this appointment. I want the chance to say that, and take 
what has happened as an indication of what can happen.
  I rise today to support the confirmation of Michael Chertoff, whom I 
know well, to the Third Circuit Court of Appeals.
  I am pleased that President Bush has selected this distinguished New 
Jerseyan for this important seat on the court of appeals. I hope that 
tells us where, in fact, we might be going with future appointments.
  Mr. Chertoff is a highly intelligent and competent lawyer who has 
compiled a long and impressive record of accomplishment in both the 
public and private sectors.
  Mr. President, I ask the Chair, if I could, to remind me if I run 
past, let's say, 8 minutes so that my colleague, Jon Corzine, has a 
chance to speak.
  The PRESIDING OFFICER. The Chair will do so.
  Mr. LAUTENBERG. Mr. President, Mr. Chertoff was born in Elizabeth, 
NJ, and distinguished himself academically as an undergraduate and law 
student at Harvard University. After law school, he served as a law 
clerk to Judge Murray Gurfein on the U.S. Court of Appeals for the 
Second Circuit.
  After he clerked on the Second Circuit, Michael Chertoff served as a 
clerk to a legendary jurist from the great State of New Jersey--U.S. 
Supreme Court Justice William J. Brennan.
  Justice Brennan was appointed to the Supreme Court in 1956 by 
President Dwight D. Eisenhower, and he spent 34 years on the Court. He 
is universally regarded as one of the most influential Justices of the 
second half of the 20th century.
  If Mr. Chertoff follows the legacy of his mentor, the Third Circuit 
is going to be in great hands.
  In 1990, Mr. Chertoff became the U.S. attorney for the District of 
New Jersey. He remained there until 1994. During his able tenure, he 
aggressively tackled organized crime, public corruption, health care, 
and bank fraud.
  He also played a critical role in helping the New Jersey State 
Legislature to investigate racial profiling. ``Driving while Black,'' 
as they say, should not be a crime in any State in the Nation, and I 
know Mr. Chertoff agrees. That is why I introduced the first bill in 
the Senate to ban racial profiling. And I am grateful to Mr. Chertoff 
for the interest he took in this matter at the State level.
  As a result of Michael Chertoff's contribution, I am proud to report 
that just a couple of months ago New Jersey enacted the strongest 
antiracial profiling law in the Nation. The Third Circuit Court of 
Appeals is one of the most impressive courts in the country. Based on 
his past performance, I am confident Mr. Chertoff will fit right in.
  As you know, I have strongly opposed some of the President's judicial 
nominees. I believe some of them are not appropriate for the Federal 
bench, not simply because they may not have compiled the kind of record 
that speaks to fairness and balance on the bench but because of a 
refusal, let's say, to even discuss the views they hold and what their 
background might be. I think it is inappropriate.
  Again, I did not want to discuss the process. I want to discuss the 
individual. And that is where I think we ought to go. But in this case, 
we have a candidate, and I stand here as an American, as a Democrat as 
well, to fully support the appointment of Michael Chertoff because he 
has the talent and ability to render justice fairly.
  I believe some of the nominees who came up were on a mission to 
curtail fundamental civil rights laws and protections. Others, as I 
said, have simply refused to answer important questions that would 
permit Senators to execute their constitutional duty for advice and 
consent.
  The fact is, there are many highly qualified candidates that the 
President could nominate to the circuit courts, the appeals courts, who 
would enjoy broad support in the Senate from both Democrats and 
Republicans. Mr. Chertoff is one such candidate.
  So I enthusiastically support his nomination to the Third Circuit. I 
urge my fellow Senators to support this consensus nominee who will 
serve the people of New Jersey and the Third Circuit ably and 
competently.
  I thank you, Mr. President, and yield my remaining time to my 
colleague from New Jersey.
  The PRESIDING OFFICER. The junior Senator from New Jersey.
  Mr. CORZINE. Mr. President, it is my pleasure to also speak today in 
support of Michael Chertoff, a nominee for the U.S. Circuit Court of 
Appeals for the Third Circuit. The Third Circuit Court of Appeals is 
one that includes my home State of New Jersey. It is a very 
distinguished court and handles a diverse range of issues reflecting, 
frankly, the diversity of the people, the economy, the society of that 
circuit. It deserves a highly qualified candidate.
  I believe the White House, in cooperation and dialog with the 
Senators from those areas that are attendant to the Third Circuit, has 
been fortunate, in working in that cooperative manner, to have a 
nominee as superb as Michael Chertoff.
  He has ably served the citizens of New Jersey in a number of 
capacities, as my colleague from New Jersey, Senator Lautenberg, 
mentioned. Indeed, he has served the Nation and the Department of 
Justice, where he is No. 3 today in the criminal justice system. We 
will all be privileged to have his sound judgment and legal skills 
serving in this critical judicial position.
  Mr. Chertoff has impeccable credentials. That is why we support him. 
And they are fully disclosed, fully responsive to the kinds of 
questions one would raise. You have heard he attended Harvard College, 
then Harvard Law School where he was editor of the Law Review. He then 
served as a Supreme Court law clerk to Justice Brennan.
  He has had a remarkable private practice. In private practice and 
public service he has served, in every case, with excellence. He has 
developed a reputation of being brilliant. He has an equal reputation 
for being tough and fair. And he is a world class litigator

[[Page 14070]]

and has earned the respect of his peers and adversaries in court, 
regardless of their political background.
  While I will acknowledge that I might not always agree with Mr. 
Chertoff on every issue--I may have philosophical differences--I find 
that no excuse for a loss of support when he is prepared to speak to 
the issues about how he will deal with the judgments he will make and 
how he will go about forming those judgments in the context of legal 
study and the context of constitutional and legal precedent.
  While there have been even serious concerns that a number of us have 
expressed regarding the prosecution of the war on terrorism, as at 
least implemented by the Justice Department--and I share some of those 
concerns--I do not believe that impacts a judge when they are willing 
to address how they will deal with constitutional precedent. And 
Michael Chertoff clearly has done so. I think he is truly a qualified 
candidate.
  Once again, I mention he was a U.S. attorney, a tough one. He 
combated organized crime, public corruption, health care fraud, and 
bank fraud. Unlike many of his predecessors--and people who now fill 
the position of U.S. attorney--as a U.S. attorney he continued to try 
cases himself. He went to court; he took on the highest profile cases 
himself. He is actually one of those people who did the work to go into 
the courtroom and carry the case.
  So I think we have a terrific candidate whom we all can support. I 
think there is a precedent here to which all of us can look. Frankly, 
this nomination process worked the way it is supposed to work. There 
was dialog and consultation with the White House. And when there were 
differences of view, there was discussion with those who were involved. 
I compliment the White House for how they have worked with the Senators 
involved in the process. We have gotten to a positive conclusion 
because there has been the kind of dialog and mutual seeking of support 
that we look for.
  I urge my colleagues to support this nomination. I urge all of us to 
look for a more cooperative manner in how we approach the selection of 
judges, particularly in the circuit courts, as we go forward.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. How much time do I have remaining?
  The PRESIDING OFFICER. Four minutes 45 seconds.
  Mr. LEAHY. Mr. President, today, we vote to confirm Michael Chertoff 
to serve on the United States Court of Appeals for the Third Circuit. 
With this confirmation, the Senate will have confirmed 128 judges, 
including 25 circuit court judges, nominated by President Bush.
  One hundred judicial nominees were confirmed when Democrats acted as 
the Senate majority for 17 months from the summer of 2001 to 
adjournment last year. After today, 28 will have been confirmed in the 
other 12 months in which Republicans have controlled the confirmation 
process under President Bush. This total of 128 judges confirmed for 
President Bush is more confirmations than the Republicans allowed 
President Clinton in all of 1995, 1996 and 1997 the first 3 full years 
of his last term. In those three years, the Republican leadership in 
the Senate allowed only 111 judicial nominees to be confirmed, which 
included only 18 circuit court judges. We have already exceeded that 
total by 15 percent and the circuit court total by almost 40 percent 
with 6 months remaining to us this year.
  Today's confirmation makes the eighth Court of Appeals nominee 
confirmed by the Senate just this year. That means that in the first 
half of this year, we have exceeded the average for an entire year 
achieved by Republican leadership from 1995 through the early part of 
2001. The Senate has now achieved more in fewer than 6 full months for 
President Bush than Republicans used to allow the Senate to achieve in 
a full year with President Clinton. We are moving two to three times 
faster for this President's nominees, despite the fact that the current 
appellate court nominees are more controversial, divisive and less 
widely-supported than President Clinton's appellate court nominees 
were.
  If the Senate did not confirm another judicial nominee all year and 
simply adjourned today, we would have treated President Bush more 
fairly and would have acted on more of his judicial nominees than 
Republicans did for President Clinton in 1995-97. In addition, the 
vacancies on the Federal courts around the country are significantly 
lower than the 80 vacancies Republicans left at the end of 1997. 
Indeed, we have reduced vacancies to their lowest level in the last 13 
years. Of course, the Senate is not adjourning for the year and the 
Judiciary Committee continues to hold hearings for Bush judicial 
nominees at between two and four times as many as we did for President 
Clinton's.
  I hope that the Republican leadership will see fit to schedule 
Richard Wesley's nomination to the Second Circuit for a vote this week. 
When he is confirmed, he will be the 26th circuit court nominee of this 
President to be confirmed by the Senate. I expect that we will also 
proceed this week on the nominations of J. Ronnie Greer to be a Federal 
trial judge in Tennessee, Mark Kravitz to be a Federal trial judge in 
Connecticut and John Woodcock to be a Federal trial judge in Maine. 
When they are all confirmed, as I expect they will be, the Senate will 
have confirmed more than 130 judges in less than 2 years.
  As a followup to what the distinguished Senators from New Jersey have 
said, this is a case where on paper this could be a controversial 
judge, surely for Democrats, as someone who was actively involved in 
the Clinton impeachment matters and others. But I have worked with Mr. 
Chertoff. I have found him to be fair. I found him to be honest with 
me. I also am aware of the fact that the White House took the time--
something they normally don't do, or do not often do, I should say--to 
actually consult with the Senators from his home State. That makes a 
big difference because we have had problems, of course, where that 
hasn't been done or where there has not been consultation or where a 
nominee has been sent up to divide us, not unite us.
  Mr. REID. Will the Senator yield for a question?
  Mr. LEAHY. I will vote without any reservation for Mr. Chertoff.
  Of course, I yield.
  Mr. REID. Would the distinguished Senator from Vermont confirm that 
this is the 128th judge approved during this Bush administration? Is 
that a fair statement?
  Mr. LEAHY. That is true. That includes 25 circuit judges.
  Mr. REID. And the vacancy rate, as I understand it, is extremely low 
now on the Federal court system generally; is that a fair statement?
  Mr. LEAHY. It is extremely low. Actually the vacancy rate is lower 
than the unemployment rate in the country. It probably wouldn't be any, 
had it not been for the fact that 60 of President Clinton's nominees 
were blocked because 1 or more Republican Senators opposed them--1 or 
more. So they never got a vote. And had they gotten a vote, there would 
be no vacancy at all.
  Mr. REID. It is also true that all this furor created with changing 
the rules and all this involves two judges whom the Democrats have 
prevented from coming to a vote; namely, Miguel Estrada and Priscilla 
Owen. So the count is 128 to 2. Is that a fair statement?
  Mr. LEAHY. That is right. We have stopped 2 so far; we have confirmed 
128. I would note that friends on the other side of the aisle, when 
President Clinton was here, stopped 60, not by votes but by just simply 
having 1 or 2 Republicans object so they were never even allowed to 
have a vote. In fact, when the Republicans were in charge in 1995 and 
1996 and 1997, when President Clinton was here, Republicans allowed 111 
judicial nominees to be confirmed and only 18 circuit court judges. In 
2\1/2\ years, we have done 128 judges for President Bush and 25 circuit 
court judges. So crocodile tears have been shed. Unfortunately, it is 
embarrassing when you tell the other side the numbers.

[[Page 14071]]

  Is there any time remaining on both sides?
  The PRESIDING OFFICER. The Senator from Vermont has 1 minute 15 
seconds. The Senator from Utah has 30 seconds.
  Mr. LEAHY. I withhold my time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, all I will say, in yielding back the 
remainder of my seconds, is that I have been around here 17 years. I 
don't know that I have ever seen a better nominee for any circuit court 
in the country. This is one very great lawyer, great human being, good 
family man, person with a record that all of us should emulate if we 
could. I hope all of our colleagues will vote for Michael Chertoff. He 
deserves our vote.
  No raw number of confirmations means anything, in and of itself, 
while there are not one but two filibusters of exemplary nominees going 
on now, potentially more to come, and emergency vacancies continue to 
exist. Are we supposed to be grateful that only a few of President 
Bush's nominees are being filibustered? Is there an acceptable 
filibuster percentage that the Democratic leadership has in mind? The 
mere fact that we have to ask these questions makes it crystal clear 
that we have a broken process. Even one filibuster of a judicial 
nominee is one too many.
  As for the allegation that two nominees have been defeated, well, I 
for one would not be as quick as some of my Democratic colleagues to 
declare that the nominations of Miguel Estrada and Priscilla Owen have 
been defeated. We will continue to fight for the confirmation of these 
nominees and continue to file for closure on their nominations. They 
are exemplary nominees who deserve to be confirmed.
  And as for the implication that it is somehow acceptable to 
filibuster two judicial nominees in light of the others that have been 
confirmed, I must ask my Democratic colleagues who are leading these 
filibusters: Would you ever argue that it is permissible to break two 
criminal laws just as long as all the rest are being followed? Of 
course not. Nobody would make that argument any more than they would 
argue that it is permissible to disregard two of the constitutional 
amendments that comprise our Bill of Rights simply because there are 
eight others. The confirmation of other Bush judicial nominees in no 
way excuses or justifies the shabby treatment inflicted on Miguel 
Estrada and Priscilla Owen.
  Mr. KENNEDY. Mr. President, I will vote for the nomination of Michael 
Chertoff to be a judge on the United States Court of Appeals for the 
Third Circuit. Mr. Chertoff has a fine reputation as a prosecutor, 
special counsel, and defense attorney. Fellow members of the bar in New 
Jersey and the District of Columbia have described him as intelligent, 
fair-minded, and hard-working. Furthermore, in his role as the head of 
the Justice Department's Criminal Division, certain aspects of his 
performance have impressed me. For example, his testimony before our 
committee in November 2001, expressing confidence in the ability of our 
Federal courts to deal with terrorist suspects, has been important to 
the debate over the need for military tribunals.
  However, other policies and decisions involving criminal justice 
matters during Mr. Chertoff's tenure as Assistant Attorney General have 
raised serious concerns. At his hearing, I asked Mr. Chertoff extensive 
questions about the Justice Department's advocacy on behalf of the 
Freeney amendment to the AMBER Alert bill. This Amendment has nothing 
to do with protecting children, and everything to do with handcuffing 
judges and eliminating fairness in our Federal sentencing system. Its 
provisions effectively strip Federal judges of discretion to impose 
individualized sentences, and transform the longstanding sentencing 
guidelines system into a mandatory minimum sentencing system. As Chief 
Justice Rehnquist has said, they ``do serious harm to the basic 
structure of the sentencing guideline system and . . . seriously impair 
the ability of courts to impose just and responsible sentences.''
  On April 4, 2003, the Justice Department sent a five-page letter to 
Senator Hatch expressing its ``strong support for Congressman Feeney's 
amendment to the House version of S. 151.'' This letter was sent only a 
few days before the House-Senate conference on the bill and was 
influential in persuading the conferees to accept the Feeney amendment. 
At his hearing, Mr. Chertoff declined to say how involved he was in 
developing the Department's position on the Feeney amendment or whether 
he supported it. In his subsequent answers to my written questions, Mr. 
Chertoff stated that he ``personally had no part in drafting'' the 
Department's April 4 letter and did not ``review it before it was 
sent.''
  While I appreciate the more forthcoming nature of Mr. Chertoff's 
written answers, I find it remarkable that the head of the Justice 
Department's Criminal Division Division did not participate in the 
drafting or review of the Department's letter. The Feeney amendment was 
very important legislation which substantially altered sentencing 
policy for the Federal criminal justice system. It was vigorously 
opposed by the Judicial Conference of the United States, the American 
Bar Association, the U.S. Sentencing Commission, and many prosecutors, 
defense attorneys, law professors, civil rights organizations, and 
business groups. As a Federal appellate judge, Mr. Chertoff will soon 
be responsible for applying its provisions. He will need to explain to 
his new colleagues why he did not do more at the Justice Department to 
stop this ill-advised legislation--or at least support Chief Justice 
Rehnquist's call for a ``thorough and dispassionate inquiry into the 
consequences'' of the Feeney amendment before its enactment.
  I was similarly surprised to learn, as Mr. Chertoff acknowledged in 
his most recent set of written answers, that neither he nor anyone else 
in the criminal division was involved in the decision to deny the 
Federal Bureau of Investigation the authority to investigate the recent 
gun purchases of suspected terrorists after September 11. This decision 
was made in spite of the legal opinion issued by the Office of Legal 
Counsel on October 11, 2001, stating that there is ``nothing in the 
NICS regulations that prohibits the F.B.I. from deriving additional 
benefits from checking audit log records.'' The F.B.I. had previously 
conducted such investigations for years. Furthermore, the Justice 
Department was at the time aggressively expanding its investigative and 
prosecutory powers in response to the 9/11 attacks. Mr. Chertoff could 
have, and should have, done more to help the F.B.I. agents 
investigating those vicious attacks. As with the Feeney amendment, this 
was an example of ideology trumping smart and effective law enforcement 
at the Department of Justice.
  Finally, I am concerned about inconsistencies in the responses Mr. 
Chertoff provided with respect to the debate over the legality of the 
interrogation of John Walker Lindh. According to reports in Newsweek 
and the New Yorker, John DePue, an attorney in the Terrorism and 
Violent Crime Section of the Criminal Division, which Mr. Chertoff 
heads now and headed then, called the Professional Responsibility 
Advisory Office in December 2001 and requested its opinion on the 
propriety of having the F.B.I. interview Lindh. At his hearing, Mr. 
Chertoff testified:

       [I have to say, Senator, I think the Professional 
     Responsibility [Advisory] Office was not asked for advice in 
     this matter. I am familiar with the matter. I was involved in 
     it.]

  In response to my first set of written questions, Mr. Chertoff 
stated:

       [T]hose at the Department responsible for the Lindh matter 
     before and during the time of Lindh's interrogation did not 
     to my knowledge seek PRAO's advice.]

  Then, in response to my second set of written questions, Mr. Chertoff 
acknowledged that the e-mails published in Newsweek ``indicate that Mr. 
DePue initiated contact with PRAO about whether the FBI should question 
Walker Lindh and that Ms. Radack responded to that inquiry''--and that 
he first learned about theses e-mails in early 2002. I understand that 
Mr. Chertoff does not believe that Mr. DePue played a major role in the 
Lindh

[[Page 14072]]

investigation and prosecution, and does not understand why DePue asked 
PRAO for its opinion on this matter. Nevertheless, Mr. Chertoff should 
have fully shared his knowledge regarding this situation from the 
outset, rather than deny that PRAO was asked for its opinion.
  According to the New Yorker article published on March 10, 2003, 2 
weeks after the Justice Department filed charges against Lindh, Ms. 
Radack, a highly qualified employee who received a merit bonus the 
previous year, received a ``blistering'' performance evaluation which 
severely questioned her legal judgment, and she was advised to get a 
new job. Mr. Chertoff has told me that has no knowledge of the facts 
surrounding Ms. Radack's employment, performance, or departure from the 
Department, and I take him at his word. Nevertheless, I remain very 
concerned about Ms. Radack's situation. According to press reprots--and 
the Department has never issued any statement disputing them--Ms. 
Radack was in effect fired for providing legal advice on a matter 
involving ethical duties and civil liberties that high-level officials 
at the Department disagreed with. Furthermore, after Ms. Radack 
notified Justice Department officials that they had failed to turn over 
several e-mails requested by the Federal court, Department officials 
notified the managing partners at Ms. Radack's new law firm that she 
was the target of a criminal investigation. I submitted questions to 
Attorney General Ashcroft regarding this matter in March, and I await 
his response.
  Notwithstanding my concerns about Mr. Chertoff's performance as head 
of the criminal division--as well as initial failure, later corrected, 
to provide serious, consistent, and responsive answers to the questions 
asked by members of the Judiciary Committee--I am supporting his 
nomination to the Third Circuit. I am doing so based on his fine 
reputation as a lawyer, his achievements as a prosecutor and special 
counsel to the New Jersey legislature, and his assurances that as a 
judge he will apply the law with independence, integrity, and a 
commitment to due process and the core constitutional values embedded 
in the fabric of our democracy. My support for Mr. Chertoff's 
nomination today, however, should not be interpreted as an endorsement 
or approval for any other position.
  Mr. LEAHY. Mr. President, I know Mr. Chertoff is waiting, biting his 
nails, wondering if he will get through this. I would mention for those 
of my colleagues who might actually be watching this, I will vote for 
him. I will support him. I urge them to do the same.
  I yield back the remainder of my time and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The question is, Will the Senate advise and consent to the nomination 
of Michael Chertoff, of New Jersey, to be a United States Circuit Judge 
for the Third Circuit? On this question, the yeas and nays have been 
ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Colorado (Mr. 
Campbell), the Senator from Alaska (Ms. Murkowski), the Senator from 
Oregon (Mr. Smith), the Senator from Alaska (Mr. Stevens), and the 
Senator from Missouri (Mr. Talent) are necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from North Carolina (Mr. Edwards), the Senator from Hawaii (Mr. 
Inouye), the Senator from Massachusetts (Mr. Kerry), the Senator from 
Louisiana (Ms. Landrieu), and the Senator from Connecticut (Mr. 
Lieberman) are necessarily absent.
  I further announce that if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye.''
  The PRESIDING OFFICER (Mrs. Dole). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 88, nays 1, as follows:

                      [Rollcall Vote No. 211 Ex.]

                                YEAS--88

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Snowe
     Specter
     Stabenow
     Sununu
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--1

      
     Clinton
      

                             NOT VOTING--11

     Biden
     Campbell
     Edwards
     Inouye
     Kerry
     Landrieu
     Lieberman
     Murkowski
     Smith
     Stevens
     Talent
  The nomination was confirmed.

                          ____________________