[Congressional Record (Bound Edition), Volume 149 (2003), Part 17]
[Senate]
[Pages 23331-23334]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF DANA MAKOTO SABRAW, OF CALIFORNIA, TO BE A UNITED STATES 
                             DISTRICT JUDGE

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider calendar No. 359, which the 
clerk will report.
  The assistant legislative clerk read the nomination of Dana Makoto 
Sabraw, of California, to be a United States District Judge for the 
Southern District of California.
  The PRESIDING OFFICER. Under the previous order, there will now be a 
period of 4 minutes for debate equally divided between the leaders or 
their designees.
  The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I ask unanimous consent the next two 
votes be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from California.
  Mrs. BOXER. Mr. President, I am pleased to offer my support for the 
nominee for the Southern District Court of California, Dana Makoto 
Sabraw.
  I want to emphasize the excellent process that we have in place to 
select District Court nominees in California. In a truly bipartisan 
fashion, the White House Counsel, Senator Feinstein and I worked 
together to create four judicial advisory committees for the State of 
California, one in each Federal judicial district in the State.
  Each committee has a membership of six individuals: three appointed 
by the White House, and three appointed jointly by Senator Feinstein 
and me. Each member's vote counts equally, and a majority is necessary 
for recommendation of a candidate.
  The nominee before the Senate this evening was reviewed by the 
Southern District Committee and strongly recommended. I continue to 
support this excellent bipartisan process and the high quality nominees 
it has produced.
  Judge Sabraw has roots in my area of California, Marin County. From 
there, he has embarked on a very impressive legal career and served the 
people of my State with distinction. He currently is a judge on the San 
Diego Superior Court.
  He is a graduate of San Diego State University and the McGeorge 
School of Law at the University of the Pacific.
  Beyond his service on the bench, he is very involved with the 
community, receiving commendation from the Pan Asian Lawyers of San 
Diego for his community outreach efforts.
  The Southern District will benefit greatly from the exemplary 
services of Judge Sabraw, and I fully support confirmation of this 
nominee.
  The PRESIDING OFFICER. Who yields time?
  Mr. DORGAN. Mr. President, we yield back the remainder of our time.
  Mr. SANTORUM. We yield back our time.
  Mr. HATCH. Mr. President, I rise today to voice my support for the 
nomination of Dana Makoto Sabraw for the United States District Court 
for the Southern District of California.
  Judge Sabraw has nearly two decades of experience as a litigator and 
as a jurist. He began his legal career as an associate with the firm of 
Postel & Parma in 1985, then joined the nationally recognized firm of 
Baker & McKenzie in 1989.
  In 1995, he was appointed to the North County Municipal Court of San 
Diego County, where he was named Presiding Judge in 1998. That same 
year, he was appointed to the San Diego Superior Court, and in 2000 was 
named Criminal Presiding Judge.
  Judge Sabraw is a proven scholar, a disciplined judge, and a noted 
humanitarian. He will make an outstanding addition to the Federal bench 
of the Southern District of California. I urge my colleagues to join me 
in supporting his nomination.
  Mr. LEAHY. Mr. President, I am pleased that we are now turning to the 
nomination of Dana Makoto Sabraw for the Southern District of 
California. This well-qualified nominee is the product of the exemplary 
bipartisan commission that Senators Feinstein and Boxer have worked so 
hard to maintain. It is a testament to their diligence that we have 
such stellar nominees heading to California's Federal courts.
  Judge Sabraw has served for 8 years on the State trial bench. Prior 
to his appointment to the bench, Judge Sabraw was a partner and 
associate at Baker & McKenzie in San Diego. In addition to Judge 
Sabraw's public service as a judge, he has also been active in his 
community.
  As an attorney, he received Certificates of Appreciation from the Pan 
Asian Lawyers of San Diego for his service to the association and its 
community outreach programs and recognition New Entra Casa for his pro 
bono work. Also as a private attorney, Mr. Sabraw provided pro bono 
services to the Legal Aid Society of Santa Barbara Project Outreach for 
several years. He also founded Positive Impact Program in 1998, a 
program in which the court, its staff, the Bar Association of North San 
Diego County, the local DAs office and others partnered with the local 
school districts to educate

[[Page 23332]]

fifth graders about the justice system. The program involved a class 
curriculum, school assembly, mock trial, tour of the courthouse, and 
essay contest and reached approximately 6,000 students in lower 
socioeconomic neighborhoods.
  The Southern District of California is the busiest Federal district 
in the Nation. In light of their demanding caseload, the Judiciary 
Committee expedited consideration of nominations to the Southern 
District. The Judiciary Committee held hearings for Dana Makoto Sabraw 
and Judge Burns, also nominated to this Southern District, just before 
the August recess and they were unanimously reported by the Judiciary 
Committee at our first meeting on September 4. That was 3 weeks ago. It 
is unfortunate that Judge Sabraw has been pending on the floor all 
month but I am pleased that we are voting on him today. Two more 
nominees to two additional vacancies recently created for the Southern 
District of California were voted out of the Judiciary Committee today.
  Senator Feinstein also deserves much credit for working so hard to 
create these additional judgeships in the Department of Justice 
authorization we passed in 2002. These judgeships are among those we 
created for border districts that have a massive caseload and that 
needed more Federal judges. We did what the Republican majority refused 
to do in the years 1995 through 2000 when there was a Democratic 
President, namely, create additional needed judgeships for the Southern 
District of California. We did so under Senate Democratic leadership 
with a Republican President. They have been available to be filled 
since July 15. The expedited path of Judge Sabraw's nomination 
demonstrates the fact that the Senate can act expeditiously when we 
receive well-qualified, consensus nominations on courts that need 
additional judges. I regret that the nomination has languished on the 
Senate calendar for most of the month for no reason. This nomination 
will undoubtedly be confirmed without a single dissenting vote in the 
Senate. Democratic Senators have been ready and willing to vote at any 
time. The Republican leadership will have to explain to the Chief Judge 
in the Southern District of California and the people of southern 
California what took so long.
  I congratulate the California Senators on their outstanding work and 
this nominee and his family on this confirmation.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Dana Makoto Sabraw, of California, to be a 
United States District Judge for the Southern District of California?
  Mr. STEVENS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL, I announce that the Senator from New Hampshire (Mr. 
Gregg) is necessarily absent.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edward), the Senator from Florida (Mr. Graham), the Senator from 
Massachusetts (Mr. Kerry), 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 (Mr. Coleman). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 95, nays 0, as follows:

                      [Rollcall Vote No. 366 Ex.]

                                YEAS--95

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

                             NOT VOTING--5

     Edwards
     Graham (FL)
     Gregg
     Kerry
     Lieberman
  The nomination was confirmed.
  The PRESIDING OFFICER. The majority leader.


                           Order of Business

  Mr. FRIST. Mr. President, after the next vote we will resume the DC 
appropriations bill and expect to be on the DC appropriations bill 
tonight and tomorrow. There will be further debate tonight. I encourage 
Members with amendments to come forward so we can continue to make 
progress on the DC appropriations bill.
  I understand the two managers will not require any more rollcall 
votes on any action on the bill tonight or tomorrow. Thus, the next 
rollcall vote will be the last rollcall vote for tonight and for 
tomorrow. Again, we will be in session tomorrow for further debate on 
the DC appropriations bill.
  With regard to Monday's schedule, we will be announcing what Monday's 
schedule will be in terms of voting. We will have votes on Monday in 
the late afternoon. We will have further announcements on that 
tomorrow. The Democratic leader and I have had discussions over the 
course of the day, and from where we started early this morning they 
have settled a lot in terms of looking forward to the next week and a 
half. I can tell all Members no more rollcall votes after this vote 
tonight, no rollcall votes tomorrow; DC appropriations.
  Mr. BYRD. Will the distinguished majority leader yield?
  Mr. FRIST. Yes, sir.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I would rather my leader propounded this question but 
inasmuch as I am the ranking member of the Appropriations Committee, 
the reason I hoped all Members would sit--although there is no 
requirement they have to in the rules, unless the Chair insists on it--
we have a problem. I think the full Senate ought to know about it. That 
is why I have urged Senators sit if they will; then they will be more 
comfortable. I don't know how long it will last. I hope it will not 
last long.
  We have a problem in that we have the Iraq appropriations measure 
before the Senate Appropriations Committee. We have had hearings 
Monday, Tuesday, Wednesday, and Thursday in that committee. There have 
been other committees that have been having hearings, too; I believe 
the Foreign Relations Committee, and I know the Armed Services 
Committee has had hearings.
  Here is my problem as ranking member of the Appropriations Committee. 
We had hearings this past Monday on the Iraq bill. Our members were not 
fully informed that there would be hearings on Monday but we proceeded 
with hearings, in any event. Several of the members could not get there 
until very late. I have protested pretty consistently in that 
committee, saying we need more hearings, that we do not need to rush 
that bill through. It would be well to have the House act, let us see 
that bill so we would better know what amendments we should try to 
offer.
  I have urged that outside witnesses be called. Why should we just 
hear one side of the question, that being, of course, the 
administration's position? But we could be wiser, I think, if we had 
outside witnesses. That has been rejected. That proposal has been 
rejected. So we have pressed on, against my wishes. I believe we ought 
to have more hearings.
  Now we come down to this point. We have completed what hearings we 
are going to have, as I understand it, in the Appropriations Committee.
  Now the pressure is on to have the bill marked up. When? Monday. We 
all

[[Page 23333]]

know that Senators, in recent years especially, are more likely to be 
late getting in on Monday. They have faraway points of the compass to 
come from, and some of them have made appointments that will cause them 
not to get in until Tuesday morning perhaps. And yet we are being 
forced to have a markup on this coming Monday. This greatly creates a 
disadvantage to many of our Appropriations members.
  So I have expressed the hope we would not have that markup on Monday. 
There is no great reason to begin to have this markup. But we have been 
pressed hard to get through these hearings, and now we are being 
pressed to mark up the bill on Monday.
  Many of our Members cannot be here Monday. So I have acquainted my 
leader and my side of the aisle with this problem. And I have said we 
could have a markup on Tuesday. But my wife--and I hesitate to continue 
to inject my own personal problems into this matter--I said my wife has 
to have an operation on Tuesday morning. Not a major operation, but any 
operation at our age--if I were 40 or 50 or 60 again, I would say: You 
go on and have your operation and I'll see you at suppertime; see you 
tonight. That is not the way she wants it. That is not the way I want 
it.
  I have said this afternoon, speaking to Mr. Reid, and to Mr. Stevens: 
If you want to have this on Tuesday, go ahead. If I am 2 hours there or 
3 hours or 5, I will come when I can. But go ahead and have the markup 
Tuesday. The word comes back that the Republicans say: OK, but there is 
a little catch to that: We will wait till Tuesday, but you have to give 
consent to take up the bill on the next day. That consent could be 
objected to, of course, causing a little longer wait.
  So now we are faced with: OK, you can take it up Tuesday--I hope I am 
not misrepresenting anyone here; at least this is the way I understand 
it--so you can have it on Tuesday, but you have to give consent to go 
to it Wednesday on the floor.
  I don't want to enter into that deal. In the first place, I don't 
think there is a necessity for our having that markup on Monday or on 
Tuesday. I think we ought to have more hearings. I think we are 
entitled to more hearings. I see this bill as being ramrodded through 
the Senate, when there is no necessity for that.
  I will not go into that further except to say, I am willing to 
proceed on Tuesday, but I am not willing for it to be in accordance 
with a deal. Call it a deal. Call it whatever you want--an agreement, 
whatever--``yes, we'll do that if.'' There are times when we do that 
around here, but on this occasion I don't think we ought to take it up 
on the floor that fast. We need more time on the floor. So I am 
unwilling to say: OK on Tuesday, but we will agree to taking it up on 
the floor on Wednesday.
  So here we are, Thursday afternoon, with no votes tomorrow, I guess, 
and many Members going home, and a Jewish holiday tomorrow. Here we are 
under this kind of pressure: You can have it on Tuesday, but you have 
to give us consent to take it up on Wednesday.
  I understand now the--this is just my understanding--the other side 
is not willing to go on Tuesday without such an agreement. As I further 
understand it, they are saying--I may be wrong about this, but that is 
what I understand--that the majority is saying: OK, you don't want any 
deal; we will do it on Monday. So there is where it creates a great 
hardship on the part of a lot of our Senators and, I suppose, on 
Senators on the other side.
  I think we are in a quandary, and we just ought to open it up here 
and have a full discussion of it rather than have the onus on me as the 
old plebeian soldier around here. OK. I don't want to cause my comrades 
on either side to have to come here on Monday and mark this up.
  There is some reason it has to be Monday or else. This bill is being 
pushed through, rammed through, and I think we ought to take more time 
on it. I think the American people are entitled to more time on it.
  Why don't we have more hearings? Is it that the majority is afraid to 
have questions asked? Do the questions hurt? What is the problem? Why 
do we have to have this--we are just not up against it. We passed the 
Defense appropriations conference report today.
  I would like to know, I say to the leader, why we have to mark up 
this bill in the Appropriations Committee Monday or Tuesday, and why, 
if we push it--if the majority is willing to go over to Tuesday--why 
they are going to exact that pound of flesh: OK, we will go over, but 
let us take it up on the following day.
  I am not willing to do that. If it were absolutely necessary to do 
that, I would be willing to do it. But that is not necessary. And in 
all my years here, I have never--I have never--seen the Appropriations 
Committee of the Senate, and especially the minority--this place is for 
the protection of the minority, a minority of Senators. I have said 
that many times.
  But to jam us up here against a Sunday and a Jewish holiday just 
preceding it, and then to come in here and say, you have to have this 
markup on Monday or you have to let us take it up on the floor on 
Wednesday, I have to say, I think that is very unfair. I have argued 
this out in the committee under the public eye, and I have talked with 
my colleague, Senator Stevens. I know he is under great pressure.
  I would hope to have a response to that. More than that, I would hope 
we would not have to mark it up Monday or Tuesday.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, the question is really centered on the 
debate, which we want to do in a thorough way. And the distinguished 
Senator from West Virginia, from day 1, has encouraged me to allow for 
adequate time for debate and amendment.
  Starting about 2\1/2\ weeks ago, I made it very clear that the 
President of the United States would shortly deliver a supplemental--
which was now about a week ago--that I wanted to take 2 weeks--and it 
could be longer or it could be shorter--that we can focus on it in an 
organized way, and an organized way is to spend time in hearings.
  Indeed, after a lot of discussion, we organized hearings in such a 
way, as you pointed out, that the Armed Services Committee has had 
hearings on it, the Foreign Relations Committee has had hearings on it, 
the Appropriations Committee has had hearings on it. And, indeed, we 
have had at least seven committee hearings in the Senate. The House is 
having hearings at the same time.
  We have had interested parties engaged in formal discussions coming 
by your party lunch, coming by our party lunch to have the discussion 
with the goal that we would focus on this issue. Indeed, we have done a 
good job this week. My goal was expressed 9 days ago. I didn't know 
about the surgery of your wife. Although the Jewish holiday begins 
tonight, we are not voting tomorrow because of a request from your side 
of the aisle. The Jewish holiday begins late tomorrow afternoon. But 
because of very specific requests from two of your Members through the 
assistant leader, we are bowing down once again to you for scheduling, 
which is fine, and I agree. If they need to travel back and there is no 
other way to get back, I am going to pay respect to their religion, 
just as I want to pay respect to you in every regard we can.
  So there goes your Friday. So don't blame us on that. I don't think 
that is fair. It is not fair as we go forward, if you are looking at 
equity or fairness.
  On this floor about 2 months ago--it was a little bit later at 
night--you came to me and said: We can't operate this place working 2 
days a week or 3 days a week. And I agree. You have been in this 
particular situation in terms of scheduling. You know it is 
challenging, just like votes for tomorrow. That is why 9 days ago I 
said, we are going to spend all next week on the floor, if possible, 
debating and amending freely. And the Democratic leader and I talked 
earlier today. We want to stay on the bill. We don't want any trips or 
punches thrown that are not fair, but we will have a good discussion 
through next week. My objective is to bring it to the floor.
  The question as to why? Because we are in a war. We are in a war 
against

[[Page 23334]]

terrorism that our President has done, I think, an excellent job of 
spelling out. He has delivered to us, on behalf of the 150,000 military 
men and women there, a call for emergency funding through a 
supplemental that, although there is disagreement, the administration 
has said it is urgent we address.
  Thus, when we can work on Monday, we should work on Monday. And I 
would argue Tuesday, Tuesday morning, Tuesday night, Wednesday morning, 
Wednesday night, Thursday morning, Thursday night, Friday morning and 
Friday night, in response to that emergency request for funding that 
the experts have told us is an emergency.
  To say, well, people aren't going to be back Monday and therefore 
let's do Tuesday, but, no, we can't do it Tuesday because of other 
scheduling reasons, therefore, let's put this off later. I can tell 
you--you know this; again, I should be speaking to the Chair--if we say 
Monday it is just too difficult for people to come back, when there are 
people at war and there are people dying every day when we turn on the 
news, because of a lack of security, and we know this funding supports 
security, how can we say, it is inconvenient Monday and Tuesday? 
Although, again, I say this with deep respect for your personal 
situation and your wife's surgery in the morning, but we need to 
respond.
  I think you know, if we wait until Wednesday to mark it up, or 
Thursday, the same thing, maybe a little bit different, Thursday, and 
you know this, Thursday people will say, we are getting out of here. We 
don't have time to debate this. Let's do it 2 weeks from now.
  Once again, we are on recess during that period of time. I am going 
to have a hard time leaving here on recess with the American people 
saying: The President of the United States delivered this urgent 
request to you for funding, and have the news every day of people 
dying, with people having told us that it does have to do with security 
and the war on terrorism. That is the why and the reason.
  I think we just need to be addressing this up front. The dialog 
between our leadership has been good. I know it is challenging our 
committee members with all of the hearings we have had day in and day 
out. I know people are worn out. But it is a war, and it is a war on 
terrorism. I think the American people deserve that debate on the floor 
of this body--freely debating, freely amending, starting as soon as we 
can that is reasonable. That is why I continue to request that the 
Appropriations Committee mark up the bill Monday, if it can--if it 
can't, it is just convenience. I think that is hard to answer--or 
Tuesday. And then there is no quid pro quo. I would like to get it to 
the floor so people can debate it before we go on recess in the next 
few weeks. But if there is objection to bringing it to the floor, that 
is your right as we go forward. But I do want the American people to 
know we are ready to address this bill and debate it fully, looking at 
everybody's schedule in a very personal way. The reason is, we are at 
war. That is it.
  Mr. BYRD. Mr. President, will the distinguished leader yield further?
  Mr. FRIST. Yes.
  Mr. BYRD. Let me emphasize I am not asking that it be put off until 
Tuesday because of my wife's little problem. I said, go ahead, if I am 
2 hours or 3 hours or 5 hours, I will get there when I can. I would 
rather you didn't, but in any event, if you do, I am going to be with 
her. That is an easy choice for me. But I didn't intend to get into the 
debate about the so-called war on terrorism as being the war in Iraq. I 
won't do that now. But the distinguished majority leader has opened an 
avenue for a great deal of debate in which I will partake, if the good 
Lord lets me live. I am not going to lie down and roll over for that 
argument that, oh, we are in a war and we have to press ahead here; we 
have people dying and so on, and we have to do this on Monday or 
Tuesday. I am as concerned about the people dying as is the 
distinguished majority leader. I was not for sending our people over 
there to die. But we won't get into that here. The distinguished 
Republican leader brought that up.
  I am only saying I would hope that we would stage the markup at a 
time when we could have full attendance on both sides.
  Mr. NICKLES. Will the majority leader yield?
  Mr. FRIST. I am happy to yield.
  Mr. NICKLES. There is a nomination of Judge Mosman. I wonder if it 
would be possible to vote on that nomination by voice vote or begin 
that vote momentarily for the convenience of all Members?
  Mr. FRIST. Mr. President, I am happy to propound that unanimous 
consent request for a voice vote on the judge under consideration.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, the ranking member is not here. I am sure 
if he was, he would ask that we have a rollcall vote. We ought to.
  Let me just say, I don't think there is any question that we have to 
move forward and have an opportunity to debate this in a much more 
meaningful and thorough way. The way we will do that is through a 
markup in the Appropriations Committee and through votes on the Senate 
floor. Throughout the day the majority leader and I have been trying to 
figure out a way to work through the schedule, and it is obvious there 
are differences of opinion about what the schedule should entail. Yes, 
there should be more hearings. Yes, there ought to be more 
accountability as to how we make these decisions. If we had our choice, 
we would bifurcate this request, send the money to the troops to make 
sure they get all they need to conduct their responsibilities, but then 
have a more deliberate and thoughtful debate about this aid for 
reconstruction. That would be our desire. We will have amendments in 
that regard whenever the bill comes to the floor.
  We need to get on with the vote on the judge, and then we will talk 
further about schedule as the schedule presents itself.

                          ____________________