[Congressional Record (Bound Edition), Volume 150 (2004), Part 10]
[Senate]
[Pages 13814-13816]
[From the U.S. Government Publishing Office, www.gpo.gov]




   NOMINATION OF DORA L. IRIZARRY TO BE UNITED STATES DISTRICT JUDGE

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 NOMINATION OF GEORGE P. SCHIAVELLI TO BE UNITED STATES DISTRICT JUDGE

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 NOMINATION OF ROBERT BRYAN HARWELL TO BE UNITED STATES DISTRICT JUDGE

  The PRESIDING OFFICER. The clerk will state the next set of 
nominations, en bloc.
  The legislative clerk read the nominations of Dora L. Irizarry, of 
New York, to be United States District Judge for the Eastern District 
of New York;
  George P. Schiavelli, of California, to be United States District 
Judge for the Central District of California;
  Robert Bryan Harwell, of South Carolina, to be United States District 
Judge for the District of South Carolina.
  Mr. HATCH. Mr. President, I rise today to express my support for the 
confirmation of Dora Irizarry, who has been nominated to the U.S. 
District Court for the Eastern District of New York.
  Judge Irizarry has an impressive record of academic achievement and 
public service. She is a cum laude graduate of Yale University and a 
graduate of Columbia University School of Law. She has spent the great 
bulk of her career in public service, including 16 years as an 
assistant district attorney prosecuting complex narcotics cases. In 
1995, then-Mayor Rudolph Guiliani appointed her to the New York City 
Criminal Court. Two years later, she was elevated by Governor George 
Pataki to the New York Court of Claims, where she served as an acting 
justice on the New York Supreme Court. After seven years of service as 
a judge, she left the bench in 2002 to campaign as the Republican 
candidate for State Attorney General. She is currently in private 
practice with the New York law firm of Hoguet Newman & Regal.
  In acknowledging the questions that some of my colleagues have about 
Judge Irizarry, let me just say I have done my best to ensure her 
nomination is treated with fairness and respect, and I believe we've 
succeeded. During the confirmation hearing for Judge Irizarry, we heard 
from the ABA and we also heard from three distinguished members of the 
New York legal community. We heard from New York Supreme Court Justice 
Michael Pesce, the presiding justice, and New York Supreme Court 
Justice Lewis Douglass, as well as James Castro-Blanco, immediate past 
president of the Puerto Rico Bar Association. They praised her legal 
aptitude and experience, her integrity, and, most notably, her judicial 
temperament.
  Furthermore, the Committee received a number of letters in support of 
Judge Irizarry's nomination from those who were unable to attend her 
hearing, as well as a strong letter in support from the Congressional 
Hispanic Caucus.
  When I look at the full record in this case, including the impressive 
testimony on behalf of Judge Irizarry from her judicial colleagues and 
former associates, the endorsements of the Brooklyn, Asian American and 
Puerto Rican Bar associations, and her own answers to the questions 
that have been raised, I am persuaded that she is prepared to be a fine 
Federal judge. I support her confirmation, and I ask my colleagues to 
do the same.
  Mr. President. I yield the floor.
  Mr. LEAHY. Mr. President, today, we are asked to consider the 
nomination of Dora Irizarry to the United States District Court for the 
Eastern District of New York. There was some controversy with her 
nomination stemming from interviews conducted by the American Bar 
Association. A majority of the ABA Standing Committee members concluded 
that Judge Irizarry was ``not qualified'' for the Federal bench. I 
believe we must give considerable weight to such peer reviews.
  Unfortunately, Judge Irizarry is one of 28 judicial nominees of this 
President to receive a partial or majority rating of ``not qualified'' 
from the ABA committee that conducts a peer evaluation of judicial 
nominees. When the ABA advises us that even a minority of the members 
of its review committee consider a nominee to be ``not qualified,'' 
that is cause for concern. I know that the ABA representatives take 
their work very seriously.
  Last October, the Judiciary Committee held a hearing on the 
nomination of Judge Irizarry, with the consent of both of the Senators 
from her home-state of New York. The senior Senator from New York, 
Senator Schumer, served as the ranking member at the hearing. On behalf 
of the Democratic minority, I worked with Chairman Hatch to allow that 
hearing to be scheduled on shorter notice than would normally be 
required under Senate rules. That was one of a series of accommodations 
Democrats have made to the Republican majority and to this 
administration without receiving acknowledgment or credit. At the 
hearing, the committee explored the nomination and the unfavorable 
recommendation of the ABA. We heard from the nominee, Judge Dora 
Irizarry, ABA representatives, and the witnesses speaking in support of 
her qualifications.
  The Democratic members of the Judiciary Committee look very closely 
at the peer review ratings provided by the ABA. Nevertheless, we 
consider the views of the ABA an important but not a dispositive piece 
of information as part of our evaluation. We may not always agree with 
the recommendation. The Senate proceeded to confirm nominees with 
majority ``Not Qualified'' ratings from the ABA, and during the course 
of this administration the Senate has confirmed a number of nominees 
with partial ``Not Qualified'' ratings.
  There are other factors that are critical considerations for these 
lifetime positions in the Federal judiciary beyond a favorable ABA 
rating. For example, in the judgment of some Members of the Senate, 
some of this President's judicial nominees do not have records that 
demonstrate that they will be fair judges and, instead, their 
backgrounds suggest precisely the opposite: that they were chosen with 
the hope that they would prejudge areas of constitutional law in order 
to move the law in a certain direction in tune with the political views 
of the right wing of the Republican party.
  I have no concerns about the impartiality of the ABA member, Pat 
Hynes, who conducted the interviews in connection with the nomination 
of Judge Irizarry. Ms. Hynes, who is of counsel at Milberg Weiss, 
chaired the ABA standing committee during the beginning of the Bush 
administration and also served as the ABA's Second Circuit 
representative from 1995 to 2000. She is currently Chair of the Merit 
Selection Panel for Magistrate Judges for the Southern District of New 
York and serves on the Second Circuit Court of Appeals Rules Committee. 
She was chosen as a Fellow of the American

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College of Trial Lawyers and has been named one of the Top 50 Women 
Litigators in the United States and one of the 50 Most Influential 
Women Lawyers in America.
  The Senate Judiciary Committee's practice has been to invite the 
ABA's testimony in connection with a nomination when a circuit or 
district court nominee has earned a majority or unanimous rating of 
``not qualified.'' In providing such testimony, I know that the ABA 
takes pains to preserve the confidentiality of the attorneys and judges 
they interview as part of their review. I do wish the ABA would provide 
similar information, informally or formally, about other ratings they 
provide. Before President Bush ejected the ABA from the process of 
providing an informal rating before a nomination was made, the fact 
that temperament or ethics concerns were raised was conveyed, and 
sometimes past White Houses chose not to proceed after making further 
inquiry into such concerns. Additionally, when the ABA was involved in 
the process before nomination, I am confident that members of the legal 
community were more candid before a judicial candidate was given the 
imprimatur of the President.
  I understand that in connection with the nomination of Judge 
Irizarry, the ABA heard a number of candid assessments from the lawyers 
and judges Ms. Hynes interviewed, some very positive and some troubling 
in the area of judicial temperament.
  Judge Irizarry, who was born in Puerto Rico, is an attorney with the 
New York firm of Hoguet, Newman & Regal. A 1979 graduate of Columbia 
Law School, she was appointed to the Bronx County Criminal Court in 
1996, and then served on the New York County Criminal Court, on the New 
York Supreme Court, which, despite its name, is a trial level court, in 
New York County and Kings County, and on the New York Court of Claims. 
She served as a judge until May 2002, when she resigned to run an 
unsuccessful campaign for State Attorney General against Eliot Spitzer. 
As I mentioned, based on concerns about temperament, a majority of the 
ABA committee found her to be ``not qualified'' for a Federal judgeship 
and a minority voted to find her ``qualified.'' The New York City Bar 
Association's Judiciary Committee also found Judge Irizarry to be 
unqualified for a position on the Federal bench, citing a lack of 
Federal experience and complaints about her judicial temperament.
  I have concerns about the serious temperament allegations that were 
made to the ABA standing committee but I trust the judgment of the 
senior Senator from the State of New York and I am prepared to support 
Judge Irizarry's confirmation to this lifetime position. I trust that 
she will conduct herself on the Federal bench in a way that is above 
reproach.


                    Nomination of George Schiavelli

  Mr. HATCH. Mr. President, I am pleased today to speak in support of 
George P. Schiavelli to be United States District Judge for the Central 
District of California.
  Judge Schiavelli has exceptional qualifications for the Federal 
bench. After graduating first in his class from UCLA Law School in 1974 
he joined the law firm of O'Melveny & Myers LLP as an associate where 
he worked on litigation, labor, corporate and entertainment issues with 
an emphasis on commercial litigation. In 1976, Judge Schiavelli joined 
the litigation department of Ervin, Cohen & Jessup LLP. Ten years 
later, he was hired as a partner at Horvitz & Levy, LLP, an appellate 
law firm.
  Judge Schiavelli began his distinguished career in public service by 
joining the Los Angeles Superior Court in 1994 where he served until 
2000. Since that time, he has practiced principally in the area of 
alternative dispute resolution, ADR, acting as a mediator, arbitrator, 
referee, and special master. In addition to his ADR activities, Judge 
Schiavelli has been Of Counsel to the Appellate Group of Reed Smith 
LLP.
  Judge Schiavelli's impressive credentials are reflected in his 
unanimous American Bar Association rating of Well Qualified. I urge my 
colleagues to join me in supporting his nomination.
  Mr. LEAHY. Mr. President, today the Senate considers the nomination 
of George Schiavelli to the U.S. District Court for the Central 
District of California. He is currently of counsel at Reed Smith LLP in 
Los Angeles, where he has worked since 2000. Prior to joining Reed 
Smith, he served as a judge on the Los Angeles Superior Court from 
1994-2000. He has significant litigation and judicial experience and I 
support his nomination.
  Mr. Schiavelli's nomination is the product of a bipartisan judicial 
nominating commission maintained with the White House by Senators 
Feinstein and Boxer. The State of California is well-served by its 
bipartisan judicial nominating commission, which recommends qualified, 
moderate nominees on whom members of both parties can agree. It is 
difficult to understand why President Bush has opposed similar 
bipartisan selections commissions since they clearly help Democrats and 
Republicans work together to staff an independent judiciary.
  I thank Senators Feinstein and Boxer for their steadfast efforts in 
maintaining the commission. It is a testament to their diligence that 
we have such well-qualified nominees heading to California's Federal 
courts. With this confirmation, the Senate will have confirmed 15 
nominees to the district courts in California.
  The Senate will now have confirmed more than two dozen judicial 
nominees of President Bush this year alone. Only 17 judges were 
confirmed under Republican leadership in the entire 1996 session and no 
circuit court nominees were confirmed that entire time. That was the 
last year in which a President was seeking reelection. We have far 
exceeded the number of judges confirmed, including circuit judges, that 
year.
  With today's votes, the Senate will have confirmed nearly 200 
judicial nominees of President Bush. In this Congress alone, the Senate 
has confirmed more Federal judges than were confirmed during the 2 full 
years of 1995 and 1996 when Republicans first controlled the Senate and 
President Clinton was in the White House. We have also exceeded the 2-
year total at the end of the Clinton administration, when Republicans 
held the Senate majority in 1999 and 2000. I would note, however, that 
the Republican-controlled Senate has not confirmed in 25 months quite 
as many as the 100 the Democratic-led Senate confirmed in our 17 months 
in the majority in 2001 and 2002.
  With nearly 200 confirmation of President Bush's judicial nominees, 
the Senate has confirmed more lifetime appointees for this President 
than were allowed to be confirmed in the most recent four-year 
presidential term--that of President Clinton from 1997 through 2000. We 
have confirmed more judicial nominees than the first President Bush 
appointed in his presidency and more than during President Reagan 
appointed during his entire term from 1981 through 1984.
  I congratulate Mr. Schiavelli and his family on his confirmation 
today.


                    nomination of robert b. harwell

  Mr. HOLLINGS. Mr. President, I join Lindsey Graham in supporting 
Bryan Harwell to be a Federal judge in the Low Country. I support 
nominees from both parties no matter who is President, but I don't 
believe this Nation's courts should be filled with judges who are 
advancing a political agenda. We need to stay above politicizing the 
courts for short-term political gain. I have been disturbed by a few of 
the President's nominees, who have been outside the judicial 
mainstream, or are only marginally qualified, or are tainted by 
conflicts or their past political work for Kenneth Starr. We should not 
use the Federal bench to reward our political operatives.
  Bryan Harwell has distinguished himself as a trial lawyer with a law 
firm in Florence and Marion, representing individuals and small 
businesses in general civil, criminal, workers compensation and family 
court matters. In particular, he has developed expertise in torts and 
insurance, product liability, malpractice and other negligence cases. 
His Martindale-Hubbell Rating is AV, the highest possible rating. As a 
veteran, I appreciate Mr. Harwell's service for a number of years in 
South Carolina's Army National Guard, during which he rose to

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the rank of JAG Captain. He has also contributed to his community as a 
Trustee of the Florence Darlington Technical College and as a business 
law professor there. Bryan Harwell will be a fine Federal judge.
  Mr. GRAHAM of South Carolina. Mr. President, I have had the pleasure 
of knowing Bryan Harwell for a very long time. I have always respected 
his character as well as his legal abilities. Upon hearing of Judge 
Houck's intention to take Senior Status, I immediately thought of 
Bryan. He has distinguished himself in private practice since 1984, 
serving as a pillar of the Florence, SC legal community. Everyone I've 
talked to about his nomination has been unanimous in their admiration 
for him and his family.
  As most of you know, I have based my judicial recommendations to the 
President on character, ability, and temperament. Bryan Harwell 
fulfills all of these criteria with a large measure to spare. Indeed, 
he has displayed excellence in all of these categories for as long as I 
have known him. Upon graduation from the University of South Carolina 
School of Law, where he finished his degree in just over 2 years, Bryan 
clerked for one of our most respected state Circuit Judges, Rodney 
Peeples. Finishing his clerkship with Judge Peeples, he then went on to 
clerk for one of our most accomplished Federal judges, U.S. District 
Judge G. Ross Anderson. Both have had high praise for Bryan's time in 
their service.
  After his clerkships, Bryan entered private practice with the law 
firm of Harwell, Ballenger, Barth & Hoefer, where he currently 
practices. His practice has involved the complete spectrum of South 
Carolina's laws and he has argued cases before our State Supreme Court 
as well as the Fourth Circuit Court of Appeals. He has augmented his 
litigation practice with a thriving mediation and arbitration practice, 
an area I personally believe has great promise for addressing a number 
of our legal system's problems. Last, but certainly not least, he has 
served his country as a Judge Advocate General officer in the South 
Carolina National Guard.
  In short, like many lawyers in South Carolina, he has represented the 
working man and the small businessman and he has served his country as 
well. I have a tremendous amount of respect for that type of lawyer, 
having been one myself.
  While he has excelled in private practice, Mr. Harwell has also shown 
his deep commitment to his community. He has opened his practice to 
those who are less fortunate and who need a helping hand by serving as 
a referral attorney for Carolina Regional Legal Services. He has served 
as an adjunct business law instructor at Francis Marion University. 
Bryan has participated in the South Carolina Bar's Ask-a-Lawyer 
project, an important link between our legal community and our 
citizens, which often serves as the only opportunity many of our 
citizens have for knowledgeable advice regarding some of life's most 
important matters. And, reflecting his varied interests, he has also 
served on the Board of Trustees at Florence Darlington Technical 
College.
  Bryan Harwell has also gone out of his way to serve South Carolina's 
legal community. He has served as a lecturer on arbitration and 
mediation law on a number of occasions for our South Carolina Bar.
  In recognition of his accomplishments and service, I am proud that 
Mr. Harwell received a unanimous ``Qualified'' rating from the American 
Bar Association. I am certain that he will be an excellent addition to 
the Federal bench.
  I am pleased that the Senate has voted to confirm Mr. Harwell today.
  Mr. HATCH. Mr. President, I rise today to express my strong support 
for the confirmation of Robert Harwell, who has been nominated to the 
U.S. District Court for the District of South Carolina.
  Mr. Harwell is an exceptional nominee. A graduate of the University 
of South Carolina School of Law, he brings more than 20 years of legal 
experience to the Federal bench. After graduation, he clerked 
consecutively for South Carolina Circuit Judge Rodney A. Peeples and 
U.S. District, South Carolina, Judge G. Ross Anderson, Jr.
  Let me just say that Mr. Harwell, like my distinguished colleague 
from South Carolina, Senator Lindsey Graham, has served as judge 
advocate general in the South Carolina Army National Guard. I note that 
Senator Graham served in the Air National Guard.
  After his clerkships, Mr. Harwell entered private practice with the 
law firm of Harwell, Ballenger & DeBerry, now known as Harwell, 
Ballenger, Barth & Hoefer, LLP, where he currently practices. In 
addition to practicing law, he often serves as a mediator or 
arbitrator, skills that will undoubtedly serve him well on the bench.
  I think my colleagues will agree that Mr. Harwell is a well-qualified 
nominee and will make a fine jurist.
  Mr. President. I yield the floor.
  Mr. LEAHY. Mr. President, today we vote on the nomination of Robert 
Harwell to the U.S. District Court for the District of South Carolina. 
Mr. Harwell is the name partner of a litigation firm in South Carolina, 
Harwell, Ballenger, Barth & Hoefer, LLP, where he has practiced law 
since 1984. He has significant litigation experience, and I support his 
nomination.
  The Senate will now have confirmed more than two dozen judicial 
nominees of President Bush this year alone. Only 17 judges were 
confirmed under Republican leadership in the entire 1996 session and no 
circuit court nominees were confirmed that entire time. That was the 
last year in which a President was seeking reelection. We have far 
exceeded the number of judges confirmed, including circuit judges, that 
year.
  With today's votes, the Senate will have confirmed nearly 200 
judicial nominees of President Bush. In this Congress alone, the Senate 
has confirmed more Federal judges than were confirmed during the 2 full 
years of 1995 and 1996 when Republicans first controlled the Senate and 
President Clinton was in the White House. We have also exceeded the 2-
year total at the end of the Clinton administration, when Republicans 
held the Senate majority in 1999 and 2000. I would note, however, that 
the Republican-controlled Senate has not confirmed quite as many as the 
100 the Democratic-led Senate confirmed in our 17 months in the 
majority in 2001 and 2002.
  With nearly 200 confirmation of President Bush's judicial nominees, 
the Senate has confirmed more lifetime appointees for this President 
than were allowed to be confirmed in the most recent four-year 
presidential term--that of President Clinton from 1997 through 2000. We 
have confirmed more judicial nominees than his father got confirmed and 
than during President Reagan's entire term from 1981 through 1984. 
Republicans should stop their false claims of obstructionism given 
these broken records.
  With this confirmation, we have filled every vacant seat in South 
Carolina. It is a pleasure working with both of the Senators from South 
Carolina. I congratulate Mr. Harwell on his confirmation.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nominations, en bloc?
  The nominations were agreed to en bloc.
  The PRESIDING OFFICER. The motions to reconsider are laid upon the 
table, and the President will be notified of the foregoing Senate 
action.

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