[Congressional Record (Bound Edition), Volume 152 (2006), Part 12]
[Senate]
[Pages 15599-15613]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JEROME A. HOLMES TO BE UNITED STATES CIRCUIT JUDGE FOR 
                           THE TENTH CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to resume consideration of 
Calendar No. 764, which the clerk will report.
  The legislative clerk read the nomination of Jerome A. Holmes, of 
Oklahoma, to be United States Circuit Judge for the Tenth Circuit.
  The ACTING PRESIDENT pro tempore. There will be 2 hours of debate 
equally divided between the Senator from Pennsylvania, Mr. Specter, and 
the Senator from Vermont, Mr. Leahy, or their designees.
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, before the Senate this moment is the 
nomination of Mr. Holmes to be a judge in the Federal court system. I 
see the Senator from Oklahoma is here. I am sure he will speak to this 
nomination. I am not going to address the nomination but put a 
statement in the Record relative to my vote, which will be in 
opposition to Mr. Holmes.
  I have reviewed his record, as many members of the Senate Judiciary 
Committee have, and there are many positive things to be said, as the 
Senator

[[Page 15600]]

from Oklahoma has mentioned in our committee deliberations. I am 
concerned, though, about some of the statements that have been made by 
Mr. Holmes in relation to his nomination on the issue of affirmative 
action. I am concerned about whether he will truly come to this 
important lifetime appointment with the type of objectivity and open 
mind that we hope for when we give people this opportunity to serve 
their Nation.
  I am also concerned that the Leadership Conference on Civil Rights 
yesterday made it clear that they oppose his nomination. It is an 
important factor, in my judgment, in my decision, and I am sorry that I 
will not be able to support this nomination as a result of that.
  I also want to make it clear that the job of a Federal judge is a 
very important one. It relates to issues that affect us every single 
day. Just last week we had an extensive debate on the floor of the 
Senate about stem cell research--those issues relative to life and 
death in medical research that come before the courts. Judges have to 
make decisions. I have no idea what Mr. Holmes's position is on this 
issue. I don't know what statements he has made relative to it. What I 
am about to say does not reflect on him at all.
  But I do want to say I am very concerned about what I read in this 
morning's newspaper about stem cell research. We know what happened 
last week. President Bush used his first Presidential veto to stop 
medical research--the first time in the history of the United States 
that a President has made a decision that we will stop Federal funding 
of medical research. He made that decision 5 years ago and said that no 
Federal funds would go to the use of these embryonic stem cells.
  We know how these stem cells are created. They are created in a 
perfectly legal medical process where a man and a woman having 
difficulty in conceiving a child expend great sums of money, effort, 
and anguish to try to create this new baby in a petri dish, a glass 
dish, in vitro in glass. It is the fertilization process in the 
laboratory that usually takes place between a man and a woman in their 
married life. It is a miracle that it works, that this process leads to 
human life and people who have been praying for a baby finally have 
that moment when they are told, yes, it worked, in vitro fertilization 
worked, and you are going to have that baby you dreamed of and love the 
rest of your life.
  But in the process, there are created other embryos which are not 
used. One is used to impregnate the woman. The others are left open, 
extra, surplus. What happens to them? They can be preserved at extreme 
cold temperatures for long periods of time. But, ultimately, if they 
are never used by the couple, they are thrown away. They are discarded.
  The question we had before us was, Is it better to take those 
embryonic stem cells that would be cast away and discarded and use them 
for medical research to find cures for diabetes, Parkinson's, 
Alzheimer's and Lou Gehrig's Disease? Is it better to use them for that 
purpose?
  That was the vote. And it was a bipartisan vote, 44 Democrats and 19 
Republican Senators. Sixty-three voted in favor of stem cell research, 
reflecting America's feelings. Seventy percent of American people say 
we should go forward with this research; that these embryonic stem 
cells that will be thrown away, it is far better to use them to find 
cures to relieve human suffering.
  That is what most Americans believe. That is what a bipartisan 
majority of the Senate believed. The magic number in the Senate is not 
63 when it comes to this issue. The important number is 67. Why? That 
is the number of Senators it would take to override a Presidential 
veto, a veto of the stem cell research bill. We fell four votes short.
  It became an operative issue when the President of the United States 
decided to use his first Presidential veto to stop this medical 
research.
  On Saturday, I went back to Chicago. I met with a group of people. I 
wish the President could have been there. I wish he could have been 
standing with me out there in Federal Plaza by the Federal Building. I 
wish he could have walked over to the wheelchair of Danny Pedroza, who 
is suffering from a terrible neurological anomaly which has created a 
burden I can hardly describe on his parents to keep him alive. I wish 
the President could have heard his mother say: Every morning when I 
walk into his bedroom, before I approach him, I look to see if he is 
breathing. That is the struggle which she will face every single day. 
All she wants the President to consider is the fact that this research 
may give her little boy or other little boys and girls who face that a 
chance.
  I wish the President could have been there to see the victims of 
Parkinson's, slightly embarrassed by the tremors which come, and stand 
before the microphones and talk about their lives today.
  I wish he could have been there to meet the mother of this beautiful 
little girl who suffers from juvenile diabetes. Her mother--I know her 
well by now, and I will not use her name on the Senate floor; I have 
used it before--gets up every night twice in the middle of the night to 
go over and take a blood sample from her daughter to make sure there is 
no imbalance. Every night, twice a night. Think about that for a 
moment.
  I wish the President could have been there to see the Lou Gehrig's 
disease victim that I saw at a round-table meeting in Chicago a few 
months ago. He looked like a picture of health and strength. Here was a 
man who was sitting in a wheelchair, immobile. He couldn't move any of 
his limbs. He couldn't speak. His wife spoke for him and talked about 
how stem cell research was their last prayer; that maybe, just maybe, 
it could help him but certainly help others. As she spoke, he sat in 
the wheelchair with tears coming down his cheeks.
  You think to yourself: Mr. President, these are real life stories. 
These are people who get up every single day and night in their battle. 
These are mothers and fathers whose lives have changed dramatically and 
will never be the same because of their love for their child or that 
husband or that wife. These are people who counted on you to sign this 
bill, to give them a chance.
  What do we learn this morning? We learn that there was a little 
apology from the White House about the language that was used about the 
stem cell veto. I would like to read some of this into the Record 
because I think it really reflects on what we were considering on the 
floor of the Senate last week.
  This article in this morning's Washington Post says:

       President Bush does not consider stem cell research using 
     human embryos to be murder, the White House said yesterday. 
     Reversing its description of its position just days after he 
     vetoed legislation to lift Federal funding restrictions on 
     the hotly disputed area of study, White House Press Secretary 
     Tony Snow said yesterday that he ``overstated the President's 
     position.''

  It went on to say the President rejected the stem cell research bill 
``because he does have objections with spending Federal money on 
something that is morally objectionable to many Americans.''
  So the standard now is not that the President vetoed the bill because 
using these embryonic stem cells is somehow taking human life or 
murder. No. The standard is, according to Mr. Snow speaking for the 
President, that this is an issue that is ``morally objectionable to 
many Americans.''
  We know that 70 percent of Americans support stem cell research. We 
know that on any given issue, whether it is the war in Iraq, or 
virtually any expenditure of Federal funds on a controversial issue, 
there will be many Americans who object to it and oppose it. The 
President is now saying he is not going to the heart of the issue as to 
whether this process is immoral; rather, he is saying it was 
politically unpopular and objectionable to many Americans.
  It wasn't objectionable to the families of the victims I met with on 
Saturday. What was objectionable was the President's veto. What was 
objectionable is the fact that he would turn his back on this 
opportunity for medical research.
  When the President vetoed this bill, he had with him what are known 
as

[[Page 15601]]

snowflake babies. I met some of them, the most beautiful kids you can 
imagine. These so-called snowflake babies are beautiful little 
children. They were outside in the lobby. These were children who were 
once these frozen embryos we talked about, and now are babies, smiling, 
gurgling, jumping up and down. The President had many of them with him 
at his veto of the stem cell research bill.
  I think the total number of these babies in America is about 200. It 
is an amazing act of love and courage for these families who want a 
baby so badly they will go to the expense of this process. I am sure 
these children will be loved the rest of their lives. They are lucky 
kids. We are lucky to have them on this Earth. There are 400,000 frozen 
embryos. It is not likely there will be so many families coming forward 
to adopt or to create the life through a frozen embryo.
  The answer to the President is this: There is room for both. We can 
use embryos to create life for the couple who comes to the laboratory, 
for those who want to adopt the embryo. There is ample opportunity for 
that. But there is also an opportunity to use these embryonic stem 
cells to save lives and to spare people from suffering. That is the 
point the President missed. That is what this election is all about.
  Last week, the House and the Senate voted on embryonic stem cell 
research. The next vote on the issue will be on November 7. That is 
when the American people will vote on stem cell research. That is when 
they will have a chance to decide whether they want different 
leadership in this Congress. That is when they will have a chance to 
decide whether they want to give the Senate the four more votes we need 
to override President Bush's veto. That is when they have to decide 
whether we can bring this issue up after the 1st of next year, pass it 
in the House and Senate and, if the President persists in his veto 
position, override that veto in the House and the Senate.
  That is what elections are all about. That is what this Government is 
about. That is why it is important, for those who follow the stem cell 
research debate, to understand it is not over. It has just begun. We 
will continue the battle to fight for stem cell research. We will do it 
on a bipartisan basis. We will try to find the Senators on both sides 
of the aisle who support it. We beg those across America who think it 
is important to move forward on stem cell research to understand now it 
is in their hands. On November 7, across America, in congressional 
elections for the House and the Senate, voters have a chance to ask the 
candidates: Where do you stand on this? How will you vote? Will you 
vote to override another veto by President Bush if it is forthcoming? 
That is what the process is all about.
  Today we debate a Federal judge. As I said, my remarks are not meant 
to reflect on him personally at all because I don't know his position 
on this issue nor would I even presume it at this moment in time. But 
it is to put into context the decisions we make in the Senate, not just 
on judges but on issues that affect real lives in America. Sadly, this 
Senate has been derailed and diverted from the important issues people 
care about. Do you know what issue we are going to next? After this 
judicial nominee, we are going to be embroiled, at least for hours--and 
I hope that is all we take of the time of the Senate on an issue that 
is so peripheral it has never ever been raised to me by anyone in the 
State of Illinois--on a question about people who would transport their 
children or young people across a State line for an abortion situation, 
a tragic decision to be made, for sure, but we are going to take up the 
time of the Senate to deal with that when, in fact, there is no 
controversy or issue that has been brought to my attention by anyone in 
my State about this matter.
  What else could we be doing in the Senate? How about something on 
gasoline prices for Americans who are now facing $3 a gallon, gasoline 
that might go to $4 a gallon if we are not careful? How about a 
national energy policy? Wouldn't that be a good debate in the Senate? 
Wouldn't it be worth our time to spend a few moments changing the Tax 
Code to help ordinary families pay for college education expenses for 
their kids? Think about students making it into good schools and 
graduating with a mountain of debt. Wouldn't it be interesting if the 
Senate found time to debate ways to help those families with tax 
deductions? Wouldn't that be time well spent? Or perhaps a little time 
talking about health insurance? Forty-six million Americans have no 
health insurance and this Senate does not want to take up an issue to 
offer American businesses the same kind of health insurance that is 
available for Members of Congress. Why aren't we considering that? 
Shouldn't we be considering the minimum wage across America? It has 
been 9 years since we have increased the minimum wage--it is $5.15 an 
hour--and during that same period of time, Members of Congress have 
voted themselves an increase in salaries of $31,000. For 9 years we 
have said to the hardest working, lowest paid Americans, you get no pay 
raise. That has been our position. Shouldn't we change it? Shouldn't we 
take the position the Democrats have taken, if we can't raise the 
minimum wage, we are not going to increase congressional pay, period? 
Shouldn't we also be considering legislation that deals with some of 
the serious problems facing people with pensions across America who 
work for a lifetime with the promise that they will be taken care of, 
yet when they finally reach their golden years they find out that 
through some corporate sleight of hand or a merger or bankruptcy, they 
are left holding the bag? Why don't we do something to help those 
families? Or change the Tax Code that rewards companies that send jobs 
overseas? Why would we reward an American company with a tax break for 
exporting jobs? Why don't we consider any of those issues I have just 
listed as a priority?
  No, what we are doing is dwelling on this debate relative to those 
extreme narrow issues that appeal to the base of the Republican Party 
vote. We went through Constitutional Amendment Month--that was June--
where we said we are going to address a major problem across America, 
that is flag burning, but it turns out there have only been a handful 
of instances in America in the last year. Has anyone even reported to 
have burned a flag in this country? And we decided we are going to 
change the Bill of Rights because of our concern over this major, 
dominant issue?
  Then, of course, the issue of gay marriage, a divisive issue. To 
think we want to amend the Constitution--thank goodness they could not 
even rally a majority of 100 Senators to vote for that constitutional 
amendment which was clearly a political experiment, a political project 
by the Republican side.
  We cannot seem to find the time to get to the real issues of an 
energy policy, a health care policy, doing something about paying for 
college expenses for families. We cannot find the time for that. No, we 
have to go after these divisive issues relative to abortion and other 
matters such as that. That is the agenda and those are the priorities 
of the Republican leadership in the Senate.
  It is the reason why an overwhelming majority of Americans have said, 
it is time for a change in Washington. They have taken a look at this 
Republican Congress and they say it is time for a significant change, 
to move us back toward an agenda that truly will make a difference and 
move this country in a new direction.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tem. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COBURN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tem. Without objection, it is so ordered.
  Mr. COBURN. Mr. President, I don't know quite where to begin. If you 
are sitting out in America today and you heard what you just heard, 
what you heard was, I am going to point out how bad you are. Here is 
what is wrong, here is the choice. What you heard was

[[Page 15602]]

a partisan rant about the situation we find ourselves in today rather 
than a constructive hand that says, let's work together to get things 
done.
  We heard a debate about stem cells so it could be used politically. 
We heard a lot of words that were interchanged, stem cells versus 
embryonic stem cells. We heard words that President Bush does not care 
about people with illnesses, Republicans do not care about people with 
illnesses. We heard words that 70 percent of Americans support stem 
cell research. The fact is when you as Americans are asked, do you 
think your taxpayer dollars ought to be used to destroy embryos for 
embryonic research, that number changes to 38 percent.
  Half truths are just that. The time we are supposed to be using is on 
the nomination of a great American by the name of Jerome Holmes. What 
we saw is, Members are going to vote against him because they have a 
litmus test. That is what is going to drive our country farther apart 
rather than bring us together. If you don't match up and you don't pass 
the litmus test, then you can't be voted for.
  The problem is, that works both ways. If the Senate is going to 
change its approach to judicial nominees, and you have to match either 
a liberal or conservative dogma, what will happen to our courts? What 
will happen to our country?
  The fact is Jerome Holmes is a man of absolute character, impeccable 
credentials, and has integrity that nobody questions. Except by a 
sleight of hand and backhanded inference that he doesn't care about 
minorities, even though he is African American, he does not care about 
minorities because he happens to have published a difference of opinion 
on the legal basis for affirmative action, that is the litmus test. 
That is why he is not going to be voted on.
  Here is a man who grew up in less than ideal circumstances, graduated 
cum laude, went to Georgetown University, has advanced degrees from 
Harvard, has been a prosecutor, has been a defender, has been an 
advocate for those who are less fortunate, and will be the first 
African American ever to be on the Tenth Circuit Court of Appeals.
  Yet as we heard, he measures up in everything except one thing: He 
doesn't buy into what some want him to buy into on one issue. Who 
better to question his own opinion--not his legal opinion but his own 
personal opinion? Is it the fact that you can't have a personal opinion 
about anything and become a judge in this country? How would we know 
anything about them?
  It takes great courage for an African American, a lawyer, to say, I 
think there are some things that are wrong with the affirmative action 
plan.
  He did not say: I don't think we should have equality. He did not 
say: I don't think we should make up for past deeds that have not been 
rectified. What he said was: Here is what the Supreme Court did. I 
think they should have gone a little further. And on that basis alone 
he does not meet the absolute litmus test that is going to be required.
  Well, think what happens if every judge who is conservative has to be 
pro-life. Do they have to be pro-life? No. We have to get away from 
this idea that you have to fit a certain mold politically before you 
can be a judge in this country. And, if we do not, we are going to 
destroy this country.
  What we want is people of integrity who understand the limited role 
of a judge; and that is not to put your personal opinions in but to, in 
fact, take the Constitution, take the statutes, and take the treaties, 
follow Supreme Court precedent, and make sure everybody who comes into 
your courtroom gets a fair chance, given what those rules are. They are 
not to make new law. They are not to put their opinions in. They are 
not to change based on what they feel rather than what the law says.
  The only way we can have blind justice is to make sure those litmus 
tests are not a part of the selection. And what we heard today was the 
opposition--wouldn't go into details--come and aggressively tell us why 
you do not want Jerome Holmes to be an appellate judge on the Tenth 
Circuit. We are not going to hear that. We are not going to hear that 
at all. Instead, we are going to hear a political debate about the 
politics of division in our country rather than the healing hand of 
reconciliation that should be about the leadership in this body and 
Congress. How do we reconcile our differences to move the country 
forward instead of divide? How do we gain advantage in the next 
election by making somebody look bad.
  That is what we just heard. How do we make somebody look bad? It is 
easy to make somebody look bad. It is a lot harder to build them up and 
say, in spite of our differences, we can walk down the road together to 
build a better America for everybody. We did not hear that this 
morning. What we heard was the politics of division. First of all, I 
think it is improper to do that when we are considering the nomination 
of such a great American as Jerome Holmes.
  I want to comment a minute on the stem cell debate. I am a physician. 
I think it is so unfortunate that we are gaming this. All of us, as 
families and members of this society, have members in our families who 
have diseases for which future research is going to unlock wonderful 
and magnificent cures. There is no question about that. But there is a 
question about an embryo. I personally believe to destroy an embryo is 
to take a life. That is my personal belief. You can have a different 
position than that, and it does not make you a bad person. It just 
means we have different positions. It does not make you incapable of 
making good decisions in the future if you have a different position 
than I do.
  But there are some facts that are not out, and I would hope the 
American public would listen to them. Embryonic stem cells have 
tremendous potential. There is no question about it. But they also have 
potential tremendous danger. And there will be no cure that will come 
from embryonic stem cells that does not come along with potential 
danger, and that is called rejection because it will not be your 
tissue, it will be the tissue of a clone, which will still have foreign 
DNA in it that is foreign to you. So any cure that comes out of 
embryonic stem cell research will be faced with a lifelong utilization 
of medicines to keep you from rejecting that treatment.
  Now, the difference between an embryonic stem cell and a cord blood 
or adult stem cell or an amniotic membrane stem cell or chorionic stem 
cell is that it is your tissue, there is no rejection. There is no 
potential for rejection if you use your own stem cells to treat 
yourself so you do not have to have a lifelong utilization of 
medicines. And the complication of those medicines is tremendous.
  The other thing we did not hear today, which is the most promising 
for everything that we have in terms of research, is called germ cell 
stem cells, that have absolutely all the potential of embryonic stem 
cells with none of the downside and none of the rejection and none of 
the carcinogenesis or teratogenesis, which means the forming of 
tumors--has none of the downside--so, in fact, we now have in front of 
us, in the last 9 months, in this country an ethical alternative that 
solves all the problems associated with embryonic stem cells and gives 
us all the potential. But we did not hear a thing about that today.
  We did not hear it because we were creating a wedge issue for the 
elections rather than solving the problems of health care in this 
country. We did not hear about the fact that you can take a stem cell 
from the duct of the pancreas and recreate beta islet cells to have 
people--children and adults--who are insulin dependent today have 
reproduction of their insulin on their own from their own cells. We did 
not hear that. What we heard was division rather than reconciliation.
  I think it is highly unfortunate that we take time when we should be 
talking about the merits of what do we want in our judges. I do not 
care if a judge is liberal or conservative. I do not care if a judge is 
a Republican or a Democrat. What I do care about is do they buy the 
fact that they have a limited role? Do they understand what that role 
is, that they are there to follow stare decisis, precedent set by the

[[Page 15603]]

Supreme Court, and the only books they get to look at is what the law, 
the Constitution, and the treaties say? That is what they get to decide 
it on, and the facts of the case.
  It should not matter what their political affiliation is. It should 
not matter what their philosophy is of life. What should matter is, how 
do they see their role? Jerome Holmes is a man who understands the role 
of a judge. He will make a fine judge. There is not anybody who knows 
this man who has come forward, in any of the testimony or any of the 
history, who has raised an issue about his integrity, his competence, 
or his character. But we have one issue. He has written his real 
opinion.
  If we say judges cannot have an opinion outside of their job, then we 
are going to have terrible judges--terrible judges. And if we use only 
political marks--you have to line up on all the politically correct 
stuff from my viewpoint or somebody else's viewpoint to be a judge--we 
are going to have terrible judges. But, more importantly, we are going 
to have a divided country.
  What we need in our country today is leadership that brings us 
together, not leadership that divides us. We need leadership that looks 
at a vision of America as to what we need 30 years from now, and what 
do we do today to get there, rather than to concentrate on our 
differences today so we can have a political advantage in the next 
election. The American people understand that. They can be manipulated. 
We saw that today.
  But America is great when America embraces its heritage. And that 
heritage is self-sacrifice and service for the next generations. It is 
not about, how do I make myself better today; how do I create an 
advantage for me politically today. It is about putting me second and 
our country first. It is about putting my party second and our country 
first. It is about creating a future for the very lives we are saying 
we want to cure with stem cells so they have something to look forward 
to.
  Those who vote against Jerome Holmes do not have that vision for 
America. They have a vision of alienation, of division, of failure for 
our country.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The ACTING PRESIDENT pro tempore. The Holmes nomination is pending.
  Mr. LEAHY. Is there a time agreement?
  The ACTING PRESIDENT pro tempore. Yes, there is.
  Mr. LEAHY. How much time is available to the Senator from Vermont?
  The ACTING PRESIDENT pro tempore. Forty minutes thirty seconds.
  Mr. LEAHY. I thank the Chair. Mr. President, today, the Senate 
considers the nomination of Jerome A. Holmes for a lifetime appointment 
to the Court of Appeals for the Tenth Circuit. Just last week we 
confirmed another nominee to the Tenth Circuit, the fifth to be 
appointed by this President. This progress comes in stark contrast to 
the seven years in which a Republican-led Senate failed to confirm a 
single new judge for that court. Indeed, when I moved forward with the 
nominations of Harris Hartz of New Mexico, Terrence O'Brien of Wyoming, 
and Michael McConnell of Utah, it broke a longstanding partisan 
barricade that had been maintained by Republicans. Among the victims of 
the Republican obstruction were outstanding lawyers President Clinton 
nominated such as James Lyons and Christine Arguello, who were never 
even granted hearings by the Republican majority. Judge Lyons was among 
the many Clinton nominees voted unanimously ``Well Qualified'' by the 
American Bar Association who were never granted hearings, and Ms. 
Arguello is a talented Hispanic attorney whose nomination had 
significant, widespread and bipartisan support from her community and 
State. They were among the more than 60 qualified, moderate judicial 
nominees of President Clinton that Republicans ``pocket filibustered'' 
and defeated without hearings or votes of any kind.
  Just last Thursday, Democratic Senators joined in the confirmation of 
Judge Gorsuch, an extremely conservative nominee, and three others. 
Working together we confirmed two circuit court nominees and two 
Federal trial court nominees in a matter of minutes. We brought the 
total number of judicial nominees confirmed during this President's 
term to 255, which exceeds the total for the last 5\1/2\ years of the 
Clinton administration. It brought the total number of judges confirmed 
over the last 18 months to 50. Of course, during the 17 months I 
chaired the Judiciary Committee the Senate confirmed 100 lifetime 
judges, twice as many in less time. Last week's success demonstrates 
again how we can make progress in filling vacancies by working 
together. Senator Salazar's support for Judge Gorsuch was a critical 
factor in our ability to act swiftly. Senator Lincoln's and Senator 
Pryor's support for confirming Judge Shepherd to the Eighth Circuit 
likewise made a real difference.
  Regrettably, this nomination we consider today is not without 
controversy and concern. Mr. Holmes initially was nominated to fill a 
district court seat in Oklahoma. The White House withdrew that 
nomination and renominated him to the circuit court after Judge James 
H. Payne asked the President to withdraw his nomination. That 
withdrawal came after public reports that Judge Payne had ruled on a 
number of cases in which he had a conflict of interest. While the 
committee never had a chance to hear directly from Judge Payne about 
the reported conflicts, these types of conflicts are a violation of 
Federal law as well as canons of judicial ethics and have no place on 
the Federal bench. Certainly, they should not be rewarded with a 
promotion.
  Before Mr. Holmes' hearing, I raised concerns about the many 
controversial letters and columns he has written on such topics as 
juror racial bias, affirmative action, discrimination, and school 
vouchers. In these writings, Mr. Holmes derided opposing points of view 
and those who held them. I asked Mr. Holmes to address my concerns 
about how he might rule on civil rights issues and how he would treat 
litigants as a judge. Regrettably, Mr. Holmes' stock answers to my 
questions that he would follow Supreme Court precedent have not 
reassured me that he would be the kind of judge who understands the 
critical role of the courts as a protection of individual rights and 
civil rights.
  In one column, Mr. Holmes described certain allegations of racial 
prejudice at criminal trials as ``harmful'' because it ``bolster[s] the 
cynical view that jurors vote along racial lines,'' which ``undermines 
public confidence in the fairness of the criminal justice system.'' In 
fact, Mr. Holmes suggested that it is the focus on the problem of 
racial bias in jury selection--as opposed to the racial bias itself 
that--harms the criminal justice system. He wrote that focusing on 
racial bias ``may actually give the green light to jurors to exercise 
arbitrary power in the jury box when their racial number allow it.''
  The Supreme Court has long recognized that racial bias in jury 
selection undermines constitutional guarantees to a fair trial, 
establishing in the landmark 1986 decision Batson v. Kentucky that 
striking jurors on the basis of race is unconstitutional. In contrast 
to Mr. Holmes' statement that accusations of racial bias are merely 
``cynical,'' Batson was based on evidence showing patterns of race 
discrimination in jury selection. It has been reaffirmed repeatedly 
during the last 20 years in sharp contrast to the views of Mr. Holmes. 
I gave Mr. Holmes every opportunity to admit error and indicate not 
only that he had learned of the Supreme Court's precedent but that he 
had adopted that view of the law and accepted the prohibitions against 
racial discrimination as just, but received no such reassurance. 
Instead, the nominee begrudgingly acknowledged that he would have to 
follow Supreme Court precedent when expressly bound by it.
  In another column Mr. Holmes wrote after the Supreme Court's landmark 
affirmative action decision, Grutter v. Bollinger, he criticized the 
High Court

[[Page 15604]]

for missing an ``important opportunity to drive the final nail in the 
coffin of affirmative action'' and said that the ``court did not go far 
enough: Affirmative action is still alive.'' In addition, he described 
affirmative action scholarship programs as involving classifications 
that are ``constitutionally dubious and morally offensive.''
  This was a landmark case and in it Justice Sandra Day O'Connor spoke 
for the Supreme Court and the Nation. Justice O'Connor, a conservative 
appointed by President Reagan, considered the facts and the law 
carefully. She took into account the brief from 65 leading U.S. 
corporations that noted the importance of a diverse workforce and the 
brief of a highly respected group of former military officers that the 
military needed a racially diverse and highly qualified corps of 
officers. She built upon the Supreme Court's Bakke decision when she 
upheld the University of Michigan Law School's use of race as a factor 
in law school admissions and affirmed the important interest in 
diversity. She proclaimed: ``Effective participation by members of all 
racial and ethnic groups in the civic life of our nation is essential 
if the dream of one nation, indivisible, is to be realized.'' She went 
on to note that she hoped and expected that consideration of race might 
no longer be necessary in another 25 years. Even after the decision, 
Mr. Holmes chose to criticize Justice O'Connor's pragmatic, principled 
and practical resolution of what had become an ideological dispute. 
Sadly, Mr. Holmes seems to continue to want to take sides, and in my 
view, he is on the wrong side.
  Just last week, the Senate unanimously extended the expiring 
provisions of the Voting Rights Act of 1965 for another 25 years. We 
all hope that such special provisions will no longer be necessary after 
another 25 years of growth and progress. But they are needed now.
  Last week, we also heard the President, who has nominated Mr. Holmes, 
acknowledge that slavery and racial discrimination ``placed a stain on 
America's founding, a stain that we have not yet wiped clean.'' In his 
first-ever address to the NAACP national convention during his time in 
office, the President said racial discrimination remains a ``wound'' 
that ``is not fully healed.'' I will not soon forget President Bush 
speaking to the Nation from Jackson Square in New Orleans and 
acknowledging that ``poverty has roots in a history of racial 
discrimination, which cut off generations from the opportunity of 
America.''
  Such powerful words inspire hope for change. But that change only 
occurs when those words are followed by action. During his address to 
the NAACP, the President lamented the Republican Party's loss of 
support among many African Americans in our country today. He called it 
a ``tragedy'' that the party of Abraham Lincoln could disenfranchise 
the African-American community. It is not difficult to understand why. 
Despite his eventual support for the reauthorization of the Voting 
Rights Act, this President's priorities, his polices--and indeed his 
nominees do not demonstrate any sort of meaningful commitment on the 
part of this administration to confront the very real racial and 
economic disparities that continue to persist today.
  When considering a nominee to a lifetime appointment on the Federal 
bench, a chief consideration of mine has always been whether all 
litigants would get a fair hearing in that nominee's courtroom. That is 
why I have been, and remain, concerned about the tone and stridency of 
Mr. Holmes' writings. In answering my questions about the tone of his 
criticisms of those with whom he disagrees on issues, Mr. Holmes seeks 
to make a distinction between ``the role of the opinion-article 
writer'' and the role of a judge. The fact that Mr. Holmes took part in 
hard-edged debate on public issues should not be disqualifying. It 
appears, however, that those opinions are what earned him this elevated 
nomination and what his proponents expect he will deliver from the 
bench.
  Mr. Holmes has been an outspoken critic not only of affirmative 
action programs and efforts to combat race discrimination, but of 
African-American civil rights leaders who support them, calling them 
``ideologically bankrupt.'' He has called into question the sincerity 
of civil rights organizations opposed to school vouchers by describing 
them as having ``longstanding ties to school employee labor unions, 
which view vouchers as a dangerous threat to the educational status 
quo, in which teachers bear little or no accountability for their 
students' educational failures.'' When the convention of the NAACP 
reacted negatively last week to President Bush's advocacy for vouchers, 
it was not because they were under the sway of any teachers' union. It 
was because they know how important public education is to the futures 
of so many from minority communities.
  In a letter to one publication, Mr. Holmes criticized claims of race 
discrimination based on forced assimilation, characterizing a doctor's 
complaint that his colleagues had ``negative reactions to his 
dreadlocks'' as ``naive.'' In another article, he described a defense 
attorney's concerns about racial bias in jury selections as 
``philosophically offensive.'' Mr. Holmes' comments belittling those 
concerned with the persistence of race-based barriers in this country 
leave me with little assurance that he has the ability to maintain 
objectivity when applying constitutional and statutory remedies for 
race discrimination and concerned that he will not have an open and 
fair mind as a judge.
  Mr. Holmes membership in the Men's Dinner Club of Oklahoma City, 
which restricts its membership to men, also concerns me about his 
ability to have an open mind. He did not resign his membership until 
February 2, 2006, less than 2 weeks before his initial nomination to be 
United States District Judge for the District of Oklahoma, presumably 
only after he had been notified that he would be nominated. When I 
asked him about why he said in his response to the committee's 
questionnaire that he did ``not perceive the club as practicing 
invidious discrimination,'' he did not respond directly. Instead, he 
declared in a self-serving conclusion that he would ``not knowingly be 
a member of any organization that harbored or expressed any bias 
against women, or any other groups on the basis of immutable 
characteristics.'' I am left to wonder what it is that Mr. Holmes would 
consider the kind of discrimination with which he would not want to be 
associated and why he was not troubled by the Men's Dinner Club. It was 
a place for social and professional advancement for him and he seemed 
not at all concerned with its restrictive policies. The fact that Mr. 
Holmes did not resign until the eve of his nomination because ``some 
might perceive the Men's Dinner Club as being an improper 
organization'' is troubling.
  I worry that even before I announced any opposition to Mr. Holmes' 
nomination, we had already begun to hear the whispers of criticisms 
taken from the pages of the playbook of extreme right-wing groups. 
These groups marked a new low a few years ago by launching a scurrilous 
campaign to inject religion into the debate over judicial nominations. 
These smears were fabricated as a calculated weapon to chill proper 
consideration of candidates nominated for significant judicial 
positions. Similar, baseless accusations of other forms of 
discrimination serve only to inflame and distract from the fair and 
deliberate consideration of judicial nominations.
  The Senate has confirmed 255 of this President's nominee including 
100 who were approved during the 17 months that Democrats made of the 
Senate majority. The first confirmation when I became chairman was of 
an African-American circuit court nominee on whom Republicans had 
refused to vote. For that matter, it was Republican Senators who 
defeated the nominations of Justice Ronnie White, Judge Beatty, Judge 
Wynn, Kathleen McCree Lewis and so many outstanding African-Americans 
judges and lawyers who they pocket filibustered.
  I was surprised when we debated Mr. Holmes' nomination in the 
Judiciary Committee that those defending Mr. Holmes' nomination 
criticized any expression of concern about his troubling

[[Page 15605]]

writings in the area of civil rights. I appreciated when the Senator 
from Oklahoma apologized to me after that debate. The Senators from 
Oklahoma are within their rights in supporting this nomination. In 
fact, I consider their support as a weighty factor in considering this 
nomination.
  That support is not universal. This is a controversial nomination. A 
number of leading organizations concerned with civil rights, including 
the NAACP, MALDEF, and many others, raised ``grave concern'' about Mr. 
Holmes' record. The Leadership Conference on Civil Rights, the 
country's oldest, largest civil rights coalition has opposed the 
confirmation of this nomination. Having reviewed the record, I share 
those concerns.
  In the last several months, as we have worked to reauthorize and 
revitalize the Voting Rights Act, I have been thinking about the civil 
rights movement, what progress we have made, and what distance we still 
have to go. The new law is named for Coretta Scott King among others. 
Dr. Martin Luther King Jr. knew that our judges and our courts were 
important to securing civil rights. It was not the Congress but the 
Supreme Court that moved the Nation forward in its Brown v. Board of 
Education decision in 1954. It is worth recalling Dr. King's call for 
the political branches to join the courts in protecting the fundamental 
rights of all. In his 1957 address, ``Give Us the Ballot,'' Dr. King 
said, ``[s]o far, only the judicial branch of the government has 
evinced this quality of leadership. If the executive and legislative 
branches of the government were as concerned about the protection of 
our citizenship rights as the Federal courts have been, then the 
transition from a segregated to an integrated society would be 
infinitely smoother.'' Dr. King knew how important fairminded judges 
were to the realization of equality. Dr. King's view and that expressed 
by Mr. Holmes appear to be in sharp contrast.
  I take no pleasure today in doing my duty. I have considered this 
nomination on its merits and, in good conscience, I cannot support it. 
Based on Mr. Holmes' own writings and his responses to our questions, I 
will vote no. I hope that Mr. Holmes will prove my concerns unfounded 
and be the kind of judge that Dr. King would have admired, a judge in 
the mold of Thurgood Marshall, William Hastie or A. Leon Higginbotham, 
Jr.
  I ask unanimous consent that a letter raising grave concerns from the 
Leadership Conference on Civil Rights regarding Mr. Holmes' nomination 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             Leadership Conference


                                              on Civil Rights,

                                    Washington, DC, June 14, 2006.
     Hon. Arlen Specter, Chairman,
     Hon. Patrick J. Leahy, Ranking Member,
     Committee on the Judiciary, U.S. Senate,
     Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: On behalf 
     of the undersigned organizations, we write to express our 
     grave concern regarding the nomination of Jerome Holmes to 
     serve on the Court of Appeals for the Tenth Circuit. Mr. 
     Holmes has been a longstanding and outspoken critic of 
     affirmative action. His criticism of affirmative action 
     raises serious questions about whether litigants could expect 
     him to rule impartially and fairly on claims that turn on 
     legal principles of affirmative action, and about Mr. Holmes' 
     approach to antidiscrimination laws more broadly, if he is 
     confirmed.
       Many civil rights organizations, including the Leadership 
     Conference on Civil Rights (LCCR), the Leadership Conference 
     on Civil Rights Education Fund (LCCREF), and the other 
     signatories to this letter, worked to persuade the U.S. 
     Supreme Court to uphold the University of Michigan's 
     affirmative action programs. In the closely watched decision, 
     the Supreme Court reaffirmed that universities may take race 
     into consideration as one factor among many when selecting 
     incoming students. In a 5 to 4 opinion written by Justice 
     O'Connor, the Supreme Court in Grutter v. Bollinger 
     specifically endorsed Justice Lewis Powell's view in 1978's 
     Regents of the University of California v. Bakke that student 
     body diversity is a compelling state interest that can 
     justify using race in university admissions. The Supreme 
     Court thus resolved a split among the lower courts as to 
     Bakke's value as binding precedent.
       Both before and after the Court spoke in Grutter, Mr. 
     Holmes has been openly hostile to affirmative action, 
     expressing his deeply held beliefs regarding the matter. To 
     that end, Holmes has penned several articles widely 
     publicizing these views. In one article, Holmes referred to 
     affirmative action as a vehicle to ``[sow] the seeds of 
     racial disharmony.'' As the Court decided the University of 
     Michigan affirmative action cases, Holmes stated that, 
     ``[t]he court did not go far enough . . . the court upheld 
     the affirmative action policy of the university's law school. 
     And in so doing, it missed an important opportunity to drive 
     the final nail in the coffin of affirmative action.'' With 
     regard to minority scholarships, Mr. Holmes has written that, 
     the ``shelving [of] race-based scholarship programs . . . 
     takes us one step closer to a time when constitutionally 
     dubious and morally offensive racial classifications will no 
     longer impede the progress of any citizen toward full 
     achievement of the American dream.''
       Affirmative action is a tool to provide qualified 
     individuals with equal access to opportunities. Affirmative 
     action programs, including recruitment, outreach, and 
     training initiatives, have played a critical role in 
     providing African-Americans and other minorities and women 
     with access to educational and professional opportunities 
     they would otherwise have been denied despite their strong 
     qualifications.
       Although progress has been made over the last 30 years, 
     ensuring equal opportunity for African-Americans and other 
     minorities and women remains an elusive goal. Continued use 
     of affirmative action is necessary to help break down 
     barriers to opportunity and ensure that all Americans have a 
     fair chance to demonstrate their talents and abilities. 
     Therefore, we have no choice but to express our deepest 
     concerns regarding Mr. Holmes' nomination.
       If you have any questions or need further information, 
     please contact Nancy Zirkin, LCCR deputy director or Richard 
     Woodruff at the Alliance for Justice.
           Sincerely,
         Alliance for Justice; American Federation of State, 
           County and Municipal Employees; Feminist Majority; 
           Lawyers' Committee for Civil Rights Under Law; 
           Leadership Conference on Civil Rights; Legal Momentum; 
           Mexican American Legal Defense and Educational Fund; 
           NAACP Legal Defense & Educational Fund, Inc.; National 
           Association for the Advancement of Colored People 
           (NAACP); National Partnership for Women & Families; 
           National Urban League; National Women's Law Center; 
           People For the American Way; The American Association 
           for Affirmative Action; YWCA USA.

  Mr. LEAHY. Mr. President, I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, could the Chair advise the time remaining 
on both sides?
  The ACTING PRESIDENT pro tempore. The majority has 46 minutes 
remaining; the minority has 22\1/2\ minutes.
  Mr. COBURN. I thank the Chair.
  I ask unanimous consent that letters from judges, Democrats, 
Republicans, businesses, the Governor of Oklahoma, be printed in the 
Record in support of Mr. Holmes.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            U.S. Court of Appeals,


                                                Tenth Circuit,

                                 Oklahoma City, OK, June 14, 2006.
     Re recommendation of Jerome Holmes nomination for the United 
         States Circuit Judge for the Tenth Circuit Court of 
         Appeals.

     Hon. Arlen Specter,
     Chairman of Judiciary Committee, U.S. Senate, Washington, DC.
       Dear Senator: I am pleased to recommend highly my former 
     clerk, Jerome Holmes, as a splendid candidate for service as 
     a United States Circuit Judge of the Tenth Circuit.
       Jerome gave extraordinary service to me as my law clerk 
     from August 1990 to August 1991. He is dedicated to the 
     highest standards of intellectual service and performed his 
     work for our court as my clerk with complete impartiality and 
     compassion for the people whose cases were before the court. 
     I am convinced he will give extraordinarily fine service as a 
     fair minded and industrious judge of the Tenth Circuit Court 
     of Appeals if his nomination is confirmed. I heartily commend 
     Jerome for your favorable consideration.
           Sincerely,
                                          William J. Holloway, Jr.

[[Page 15606]]

     
                                  ____
                                                  Crowe & Dunlevy,


                              Attorneys and Counselors at Law,

                                 Oklahoma City, OK, June 13, 2006.
     Re Jerome A. Holmes.

     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Specter: I write in support of the nomination 
     of Jerome A. Holmes to the Tenth Circuit Court of Appeals. 
     After a distinguished career in the Office of the United 
     States Attorney for the Western District of Oklahoma, in 
     August, 2005, Jerome joined our firm as a director. Jerome 
     has already assumed firm leadership positions as the chair of 
     both our Diversity and Business Development Committees.
       Jerome is thoughtful and principled in all that he does. 
     The other directors of this firm quickly learned to respect 
     and rely upon him. Jerome has been able to represent the 
     clients of the firm and become an integral part of our firm 
     through his outstanding analytical abilities and his 
     excellent temperament.
       In fact, Jerome Holmes is a paradigm for the judicial 
     temperament and discretion that we expect of a judicial 
     officer. He is the most articulate and well spoken attorney I 
     have had the opportunity to work with, and is easily able to 
     ponder multiple sides of complex issues and arrive at a 
     thoughtful analysis.
       Jerome has long been active in both the Oklahoma Bar 
     Association and the Oklahoma County Bar Association and is 
     now serving our profession as the vice president of the 
     Oklahoma Bar Association. He has earned the respect of the 
     legal community, both bench and bar, in this city and tate.
       Jerome Holmes will fill the role as a member of the Tenth 
     Circuit Court of Appeals with distinction and the highest 
     level of professional integrity. I take, great pleasure in 
     sending my highest recommendation of Jerome Holmes for this 
     important judicial position.
           Yours truly,
                                                 Brooke S. Murphy,
     President.
                                  ____

         Riggs, Abney, Neal, Turpen, Orbison & Lewis, Attorneys 
           and Counselors at Law,
                                  Oklahoma City, OK, May 26, 2006.
     Re recommendation of Jerome A. Holmes, U.S. Court of Appeals 
         for the Tenth Circuit.

     Hon. Arlen Specter,
     U.S. Senate,
     Washington, DC.
       Dear Senator: Please accept this letter as an enthusiastic 
     endorsement of Jerome A. Holmes for a position on the U.S. 
     Court of Appeals for the Tenth Circuit. Although I often find 
     myself in disagreement with Senators Inhofe and Coburn on a 
     variety of policy issues, I have a great deal of respect for 
     Jerome and must commend the Senators for endorsing his 
     nomination for this important judicial position. I 
     respectfully request that you move Jerome's name forward for 
     confirmation.
       Jerome is an experienced trial lawyer, working on civil and 
     criminal matters. He recently entered private practice at one 
     of the largest law firms in Oklahoma, after a distinguished 
     11-year career as a federal prosecutor in the U.S. Attorney's 
     Office for the Western District of Oklahoma. During his time 
     in the U.S. Attorney's Office, Jerome primarily prosecuted 
     cases involving white collar and public corruption offenses. 
     He also worked for almost 1 year on the prosecution team that 
     brought charges against the perpetrators of the Oklahoma City 
     Bombing.
       Jerome received his Juris Doctor from Georgetown University 
     Law Center, where he served as Editor-in-Chief of the 
     Georgetown Immigration Law Journal. He received a B.A. degree 
     from Wake Forest University, graduating cum laude. In 
     addition, Jerome earned a Master in Public Administration 
     degree from Harvard University's John F. Kennedy School of 
     Government, where he was a John B. Pickett Fellow in Criminal 
     Justice Policy and Management.
       Jerome is licensed to practice law in three jurisdictions, 
     including Oklahoma. He also has been admitted to practice 
     before the Bars of the U.S. Supreme Count and the U.S. Courts 
     of Appeals for the Tenth Circuit and the District of Columbia 
     Circuit.
       Jerome is a leader in his profession, currently serving on 
     the Oklahoma Bar Associations's Board of Governors (BOG) as 
     Vice President. He is the first African American in the 
     history of the Oklahoma Bar Association to occupy an 
     officer's position on the BOG.
       Jerome's long-standing concern for the economically 
     disadvantaged is evident in his professional and civic 
     activities. Jerome serves on the ABA's Commission of 
     Homelessness & Poverty and is Chair of the Board of one of 
     the largest providers of shelter to Oklahoma's homeless, City 
     Rescue Mission. Jerome also is committed to ensuring that the 
     doors of the legal profession are open to underrepresented 
     racial and ethnic minorities. He is Chair of his law firm's 
     Diversity Committee and has devoted numerous hours to working 
     with minority high school students in a mock trial program.
       Jerome enjoys widespread support among Oklahoma Democrats 
     and Republicans alike. In Oklahoma legal circles, Jerome has 
     a very strong reputation. He is a dedicated professional who 
     would be committed as a judge to fairness and justice, rather 
     than ideology. I heartily endorse Jerome's nomination for the 
     Tenth Circuit position without reservation. Please help all 
     Oklahomans by moving Jerome's name forward for confirmation 
     as soon as possible.
           Sincerely,
     Michael C. Turpen.
                                  ____

                                                         Jim Roth,


                                 Oklahoma County District One,

                                                Oklahoma City, OK.
     Re: nomination of Jerome Holmes, 10th Circuit Court of 
         Appeals

     Hon. Arlen Specter,
     Chairman, U.S. Senate, Judiciary Committee, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, U.S. Senate, Judiciary Committee, Washington, 
         DC.
       Dear Distinguished Senators: It is truly an honor to offer 
     this Letter of Recommendation for your consideration on 
     behalf of Jerome Holmes, a nominee for the lOth Circuit Court 
     of Appeals.
       I have known Jerome Holmes for several years, both 
     professionally and personally, as I am also a member of the 
     Oklahoma Bar Association. I know him to be a person of 
     Integrity and Character and I have always appreciated Mr. 
     Holmes' fairness in our dealings. What's more, I have 
     witnessed Mr. Holmes' efforts in our local community to 
     improve the lives of those around us; all people regardless 
     of where they live, what they look like or how much money 
     they have. He has an altruistic spirit that makes him a 
     standout in this world.
       I serve Oklahoma County as one of three elected County 
     Commissioners, am a proud Democrat and consider Jerome Holmes 
     to be a principled leader who demonstrates mutual respect for 
     all people. In particular, he is respectful of views that 
     differ from his own and he enjoys tremendous bipartisan 
     support and respect.
       If I can provide any further information or perspective, 
     please do not hesitate to contact me at your convenience.
           Respectfully yours,
                                                         Jim Roth,
     County Commissioner.
                                  ____



                                   Holy Temple Baptist Church,

                                 Oklahoma City, OK, June 21, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senators Specter and Leahy: I am writing in reference 
     to the nomination of the Honorable Mr. Jerome A. Holmes, 
     Esq.'s judicial appointment. I appreciate the concern that 
     has been expressed about his nomination based upon his 
     writings and positions on affirmative action. In all honesty 
     I stand in a position that is contrary to the interpreted and 
     most likely actual personal stance of Mr. Holmes, yet my 
     relationship with him moved me to write and to express my 
     support for him.
       I have known Mr. Holmes for many years and believe that he 
     does have a high regard for the views of those who maybe 
     different from his own. That in and of itself is enough for 
     me to believe that he would ``hear'' fairly. In addition, Mr. 
     Holmes has displayed a level of integrity in all his dealings 
     that I have been aware and has shown in our personal 
     conversation willingness to listen and respect differing 
     views. I trust Mr. Holmes and so in light of our differences 
     I support his nomination.
       I do realize the responsibility that is upon me as a 
     Pastor, Community Leader and a concerned citizen. This is no 
     light matter for me, indeed it is with much prayer and 
     struggle that I searched out the right words to convey the 
     right tone to reinforce my message. As a member of the NAACP, 
     Urban League and many other organizations that fight for the 
     rights of minorities, I am moved to ask your continued 
     approval of this nomination.
           Sincerely,
                                              George E. Young, Sr.
     Pastor.
                                  ____

                                                    June 19, 2006.
     Re recommendation of Jerome A. Holmes, U.S. Court of Appeals 
         for the Tenth Circuit.

     Hon. Arlen Specter,
     U.S. Senator,
     Washington, DC.
       Dear Senator Specter: As Governor of the State of Oklahoma, 
     and as a former Chair of the State Senate Judiciary 
     Committee, I have had a lot of experience in the selection of 
     judges. In our modified Missouri system of appointment of 
     judges, the Governor plays a key role when judicial vacancies 
     occur. Not only does the Governor appoint members to the 
     Judicial Nominating Commission, but he or she also is 
     forwarded the final three names of judicial applicants for 
     gubernatorial selection. I take this responsibility very 
     seriously, and I have personally interviewed every single 
     candidate forwarded to me.

[[Page 15607]]

       I have come to know and respect Mr. Jerome Holmes, a 
     nominee for the Tenth Circuit vacancy created by the 
     retirement of my friend, Judge Stephanie Seymour. Jerome is a 
     highly qualified candidate, a superb lawyer with a reputation 
     for fairness, ethics and integrity. Indeed, I recently 
     appointed his former supervisor, Judge Arlene Johnson, to our 
     court of last resort on criminal matters, the Oklahoma Court 
     of Criminal Appeals. When Arlene was Chief of the Criminal 
     Division of the U.S. Attorney's office in the Western 
     District of Oklahoma, Jerome was her chief deputy. Their 
     division was considered a model division of the U. S. 
     Attorney's office. Jerome handled this difficult task with 
     competence and honor, and he was part of the prosecution team 
     that brought charges against the perpetrators of the Oklahoma 
     City federal building bombing.
       I have also come to know Jerome on a personal basis through 
     the Oklahoma Symposium, a sort of ``think tank'' gathering of 
     top Oklahomans that meets formally once a year, and 
     informally in small groups from time to time. It is an honor 
     to be invited to join the Symposium, and Jerome was among the 
     first to be invited for membership.
       Jerome is uniquely qualified for this position. He served 
     as a law clerk for Federal District Judge Wayne Alley and 
     then for the then-Chief Judge of the Tenth Circuit Court of 
     Appeals, the honorable Judge William Holloway. Jerome then 
     practiced for several years in civil litigation before 
     devoting himself for eleven years to the U.S. Attorney's 
     Office in Oklahoma City. For several months, he has been 
     practicing at Crowe & Dunlevy, one of the largest and most 
     respected law firms in Oklahoma. In short, I do not think you 
     could have a candidate more highly qualified and regarded 
     than Jerome Holmes.
       I hope you will see fit to appoint this remarkably talented 
     young man to this important position. I know of the Tenth 
     Circuit, as well, because my cousin, Judge Robert Henry, will 
     become the Chief Judge of that Circuit in 2008. I know he 
     shares my high regard for Jerome, as he has told me of 
     Jerome's excellent professional appearances before that 
     court.
       I continue, Senator, to appreciate the very important work 
     that you do. Please do not hesitate to contact me if I can be 
     of service, or, of course, if you should come to Oklahoma.
           Sincerely,
                                                       Brad Henry,
     Governor.
                                  ____

                                          Ryan, Whaley & Coldiron,


                              Attorneys and Counselors at Law,

                                 Oklahoma City, OK, June 21, 2006.
     Re: nomination of Jerome A. Holmes to the Tenth Circuit.

     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Specter and Senator Leahy: I am writing in 
     support of the nomination of Jerome A. Holmes for the United 
     States Court of Appeals for the Tenth Circuit.
       I am a lifelong Democrat. For six years I was fortunate to 
     work on the United States Senate staff of Senator David Boren 
     and the Senate Agriculture Committee. During this time I met 
     Senator Leahy and personally witnessed his leadership as a 
     committee chairman. I was the Democratic nominee for an 
     Oklahoma congressional race in 1994. I later became a federal 
     prosecutor and eventually served as the United States 
     Attorney for the Western District of Oklahoma, first through 
     appointment by Attorney General Janet Reno and then through 
     nomination by President Clinton.
       I have known Jerome Holmes for over ten years through our 
     work together in the United States Attorney's Office and now 
     in private practice. I believe his intellect, experience and 
     character make him an excellent choice for a position on the 
     appellate court. I saw these qualities firsthand as Jerome 
     carried out his many responsibilities as a prosecutor. One of 
     the most important duties he performed was that of the 
     office's legal ethics and professional responsibility 
     counselor. Jerome acted ably in this capacity during a time 
     of heightened scrutiny for federal prosecutors following the 
     passage of the Hyde Act and the McDade Amendment. Since both 
     of you are former prosecutors, I trust that you can 
     appreciate the degree of confidence in Jerome's abilities and 
     integrity that were required in order to be given such an 
     assignment by me and other United States Attorneys.
       Jerome's nomination has apparently triggered concern from 
     groups that have focused on his writings on affirmative 
     action. In this regard, I can offer three observations. 
     First, I have known Jerome to be open-minded and respectful 
     of different views. More importantly, I know Jerome to be 
     respectful of the role of the courts, as opposed to the role 
     of the advocates, and I believe this understanding to be 
     partly the result of his three years of service as a law 
     clerk for federal appellate and district judges. Finally, as 
     noted above, I know Jerome to be a person of unwavering 
     integrity. Therefore, when Jerome states under oath that he 
     will put his personal views aside and follow the law, I 
     believe he will do just that.
       I hope these observations are helpful as you consider 
     Jerome's nomination, which I hope you will act upon 
     favorably. I respectfully request that this letter be made 
     part of the committee record regarding his nomination. If I 
     can be of further assistance or if you or your staff have any 
     questions, please do not hesitate to contact me.
           Sincerely,
     Daniel G. Webber, Jr.
                                  ____



                                     Oklahoma Bar Association,

                                 Oklahoma City, OK, July 21, 2006.
     Re: confirmation of Jerome A. Holmes, Nominee for Judicial 
         Appointment to Tenth Circuit Court of Appeals.

     Hon. James M. Inhofe,
     Russell Center Office Building,
     Washington, DC.
       Dear Senator Inhofe: As president of the Oklahoma Bar 
     Association, I am writing in support of the nomination of 
     Jerome A. Holmes, Esquire to the United States Court of 
     Appeals for the Tenth Circuit.
       I've had the pleasure of serving with Jerome for the last 
     2\1/2\ years, in various official capacities with the 
     Oklahoma Bar Association. I selected Jerome to serve as my 
     Vice President for this year. He has served in that capacity 
     with exceptional skill, talent and knowledge of a vast 
     breadth of issues.
       I have enjoyed working with Jerome as I find him to be an 
     intelligent lawyer and an extremely thoughtful leader who 
     excels in everything that he does. I believe that Jerome 
     should be entitled to bipartisan support because he displays 
     the demeanor, work ethic and outstanding capacity to reach an 
     appropriate decision under our constitution. Jerome will be 
     an outstanding jurist who will follow the law and not his 
     personal views or beliefs.
       Again, I appreciate your consideration of my support for 
     the confirmation of Jerome Holmes to the United States Court 
     of Appeals for the Tenth Circuit by the full Senate. Please 
     feel free to contact me if you have any questions regarding 
     his qualifications.
           Very truly yours,
                                                 William R. Grimm,
     President, Oklahoma Bar Association.
                                  ____


                     Resolution to the U.S. Senate

       Whereas, Jerome A. Holmes exemplifies the highest standards 
     of the legal profession, has given unselfishly of his time 
     and talents to further the legal profession, has served as 
     Vice President and Govrenor of the Oklahoma Bar Association 
     and has held numerous other high positions within the 
     Association;
       Whereas, Jerome A. Holmes has consistently demonstrated 
     that he possesses the demeanor, intelligence and legal skills 
     to serve in the highest office of his profession and the 
     public;
       Whereas, Jerome A. Holmes has served his profession, his 
     community, his state, and his nation with courageous, devoted 
     and tireless service to insure that the rule of law prevails 
     and that there be liberty and justice for all;
       Whereas, Jerome A, Holmes has received a nomination from 
     President George W. Bush to serve as a judge of the Tenth 
     Circuit Court of Appeals pending confirmation by the United 
     States Senate;
       Be it Resolved, on behalf of the Oklahoma Bar Association, 
     the Board of Governors unqualifiedly and wholeheartedly 
     supports the confirmation of Jerome A. Holmes to the position 
     of judge of the Tenth Circuit Court of Appeals;
       Be it Further Resolved, the Board of Governors requests the 
     honorable members of the United States Senate for favorable 
     confirmation of Jerome A. Holmes.
       In Witness Whereof, this Resolution is unanimously Adopted 
     by the Oklahoma Bar Association Board of Governors this 21st 
     day of July 2006.
                                      William R. Grimm, President,
                                         Oklahoma Bar Association.

  Mr. COBURN. Mr. President, I want to take a few moments to discuss 
the comments we just heard. I will go back to the litmus test.
  My belief is there is no way Jerome Holmes could have given an answer 
in response to questions that were asked by Senator Leahy that would 
have met with Senator Leahy's approval. We had a hearing on Mr. Holmes. 
The great concerns we have heard on the floor, nobody came to ask any 
of those questions. No one showed up other than myself and two other 
Members to hear Jerome Holmes' response, both in terms of his comments 
and beliefs about affirmative action, but also about the beliefs he 
has. This is a man who has experienced racial discrimination. This is a 
Black man who rose to heights without the assistance of anyone else 
other than his sheer will and great effort on his part and the 
character instilled in him by his parents.
  There are multiple allegations that have been raised. I will hold 
back on answering those specifically with Mr. Holmes' responses.

[[Page 15608]]

  I yield to the senior Senator from Utah 20 minutes. If he needs 
additional time, I will be more than happy to yield that to him. Would 
the Chair please notify us when we have 10 minutes remaining?
  The ACTING PRESIDENT pro tempore. Yes.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my colleague and I appreciate his 
leadership on the floor. This is an exceptional nominee for the court.
  I rise to voice my strong support for the nomination of Jerome A. 
Holmes of Oklahoma to be a judge on the U.S. Court of Appeals for the 
Tenth Circuit. With this nomination, we see an all-too-familiar 
pattern. Mr. Holmes is a highly qualified nominee, a man of integrity 
and character who knows the proper role of a judge, someone who is 
praised by those who know him and attacked by some who do not.
  Let me review each element of this familiar pattern in turn.
  First, Mr. Holmes is a highly qualified nominee. After receiving his 
law degree from Georgetown University in 1988, where he was editor in 
chief of the Georgetown Immigration Law Journal, Mr. Holmes returned to 
Oklahoma and began an impressive legal career. He clerked first for 
U.S. District Judge Wayne Alley of the Western District of Oklahoma, 
and then for U.S. Circuit Judge William Holloway of the Tenth Circuit. 
Both judges have since taken senior status, and I can only imagine how 
proud they must be to see their former clerk now nominated to the 
Federal bench himself. And in the case of Judge Holloway, I truly hope 
that Mr. Holmes will soon have the privilege of calling his former boss 
a colleague.
  After 3 years of private practice with the highly regarded law firm 
of Steptoe & Johnson, Mr. Holmes entered public service. While an 
Assistant United States Attorney serving the Western District of 
Oklahoma, Mr. Holmes prosecuted a wide range of cases and was that 
office's anti-terrorism coordinator. No doubt among his most vivid 
memories from that time was his experience on the prosecution team 
regarding the Oklahoma City bombing. Somehow, Mr. Holmes also completed 
a master's degree in public administration from Harvard University's 
Kennedy School of Government. Currently, after more than a decade as a 
prosecutor, Mr. Holmes is back in private practice as a director of 
Crowe & Dunlevy, a prominent law firm in Oklahoma City, where he chairs 
the firm's diversity. committee. He has also served as Vice President 
of the Oklahoma Bar Association. This is an exceptional man.
  Second, Mr. Holmes is a man of integrity and character. We hear now 
and then about the need for judges who are well-rounded individuals, 
who are good people as well a good lawyers. Well, during his years in 
private practice and public service, Mr. Holmes has also served his 
community. In addition to chairing the Oklahoma City Rescue Mission, 
Mr. Holmes has been a director of the Oklahoma Medical Research 
Foundation and a trustee of the Oklahoma City National Memorial 
Foundation.
  Third, Mr. Holmes understands the proper role of judge in our system 
of Government. He has testified under oath that he knows judges must 
separate their personal views from what the law requires. He has 
repeatedly affirmed his commitment to follow applicable Supreme Court 
precedent in cases that will come before him. This means, as he put it 
in answers to questions following his hearing, an even-handed 
application of legal principles in all areas.
  Fourth, Mr. Holmes is praised and supported by those who know him. 
This includes Democrats in Oklahoma. Daniel Webber, appointed by 
President Bill Clinton to be U.S. Attorney in Oklahoma, has written the 
Judiciary Committee in support of Mr. Holmes' nomination. He has known 
this nominee for more than a decade and urged confirmation based on Mr. 
Holmes' intellect, experience, and character. Reaffirming that the 
nominee before us today knows the proper role of a judge, Mr. Webber 
wrote us that Mr. Holmes is ``respectful of the role of the courts. . . 
. When Jerome states under oath that he will put his personal views 
aside and follow the law, I believe he will do just that.''
  Oklahoma Governor Brad Henry, a Democrat, also wrote the Judiciary 
Committee to support this nomination. Governor Henry said that Mr. 
Holmes is ``a highly qualified candidate, a superb lawyer, with a 
reputation for fairness, ethics and integrity. In short, I do not think 
you could have a candidate more highly qualified and regarded than 
Jerome Holmes.'' A superb lawyer with a reputation for fairness, 
ethics, and integrity. It seems to me that is exactly the formula we 
should consistently be looking for in nominees to the Federal bench.
  So far, so good. The fifth element of this familiar pattern, however, 
is that Mr. Holmes is being attacked and opposed by some who do not 
know him. Mind you, they have not suggested that Mr. Holmes is not 
qualified to sit on the Federal appellate bench. They have not disputed 
his character or integrity. Nor have they offered anything to cast 
doubt on what seems to be universal acclaim from those who know Mr. 
Holmes and have worked with him. In yet another familiar element of 
this pattern, Mr. Holmes' critics find fault not with his experience, 
his qualifications, his integrity, or his character, but his politics.
  In particular, the critics take issue with Mr. Holmes' opposition to 
Government-imposed racial preference policies. Let me emphasize what I 
mentioned a few minutes ago, that Mr. Holmes helped create and chairs 
his law firm's diversity committee. In the private arena, he works to 
recruit and retain qualified lawyers of various racial and ethnic 
backgrounds. He also believes that race-based policies were once 
necessary to address the effects of past discrimination. Mr. Holmes 
would be the first African-American judge on the Tenth Circuit. At the 
same time, like two-thirds of Americans, Mr. Holmes opposes current 
programs that condition admission to public universities on race, not 
to address past discrimination but to create future diversity.
  My liberal friends can, of course, disagree with Mr. Holmes on this 
issue. But by suggesting that his opinion on this issue somehow 
disqualifies him from serving on the Federal bench, they are treading 
on very dangerous ground. Mr. Holmes is hardly the first judicial 
nominee to have taken a clearly defined stand on a controversial issue. 
I could chronicle some of the more prominent examples, judges 
overwhelmingly confirmed by this body. Are my liberal friends saying 
that we should instead be looking to be judicial nominees individuals 
who have no opinions on issues of the day, who have done nothing, said 
nothing, and thought nothing? Or are they suggesting that if nominees 
have thought about and have opinions on controversial issues, only 
liberal opinions are acceptable?
  The issue is not whether a nominee is liberal or conservative, 
Democrat or Republican, but whether he is committed to basing his 
judicial decisions on the law. The evidence from him and those who know 
him is that Mr. Holmes will do just that, and there is not a shred of 
evidence to the contrary.
  Not only that, but Mr. Holmes' supporters--again, those who know him 
best--also stress his willingness to listen and to respect those with 
differing views. Oklahoma County Commissioner Jim Roth, another 
Democrat, wrote the Judiciary Committee calling Mr. Holmes ``a 
principled leader who demonstrates mutual respect for all people. In 
particular, he is respectful of views that differ from his own and he 
enjoys tremendous bipartisan support and respect.'' That is from a 
Democrat. How can you ask for a better statement from anybody?
  Specifically on the issue that has so captivated Mr. Holmes' critics, 
Pastor George Young, Sr., who supports affirmative action, writes that 
``Mr. Holmes has displayed a level of integrity in all his dealings 
that I have been aware and has shown in out personal conversation 
willingness to listen and respect differing views.''
  Perhaps my liberal friends are taking out their litmus paper to judge 
Mr. Holmes' personal views because they

[[Page 15609]]

believe that is precisely what should drive judicial decisions. Mr. 
President, I reject that notion out of hand and I invite those who take 
such an ideological, politicized view of what judges do to try and sell 
that to the American people.
  Mr. President, personal views or political positions are the wrong 
standard for evaluating judicial nominees. It distorts the fundamental 
difference between advocates and judges, between opinion and law. And 
it misleads the American people about what judges do and the important 
place they occupy in our system of Government. I am convinced that Mr. 
Holmes understands far better than his critics that judges must be 
neutral arbiters, that they must follow the law, that they must set 
aside personal views or opinions. I am convinced that Mr. Holmes will 
do just that on the Tenth Circuit.
  Mr. President, we have been here before. Nominees of obvious 
qualification and experience, unquestioned integrity and character, and 
solid bipartisan support, are nonetheless attacked and maligned because 
of their personal views or political opinions. It has happened before 
and, sadly, I expect it will happen in the future. The proper standard, 
however, looks at qualifications, integrity, and commitment to the 
proper role of judges in our system of Government. Judged by this 
proper standard, Mr. Holmes will be a fine member of the court he once 
served as a law clerk.
  Let me close with the words of one of the judges Mr. Holmes served as 
a law clerk. Judge William Holloway was appointed to the Tenth Circuit 
in 1968 by President Lyndon Johnson. He wrote the Judiciary Committee 
that Mr. Holmes ``performed his work for our court as my clerk with 
complete impartiality and compassion for the people whose cases were 
before the court. I am convinced he will give extraordinarily fine 
service as a fair minded and industrious judge.''
  Excellence, fairness, integrity, impartiality, compassion, and a 
willingness to listen. That is what the evidence shows, Mr. President. 
Jerome Holmes is a fine lawyer and a good man. He will make a great 
judge.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I believe under the agreement I have 15 
minutes; am I correct?
  The PRESIDING OFFICER. There is no time agreement. The Senator is 
recognized and may proceed.
  Mr. COBURN addressed the Chair.
  Mr. KENNEDY. Mr. President, I think I have the floor.
  Mr. COBURN. Will the Senator yield for an inquiry of the Chair?
  Mr. KENNEDY. Yes.
  Mr. COBURN. Mr. President, it is my understanding that we are under a 
unanimous consent agreement. There is a time agreement, and it is 
limited on both sides.
  The PRESIDING OFFICER. The Senator from Oklahoma is correct. There is 
2 hours equally divided. We are operating under a time agreement, but 
there is no specific consent to limit the Senator from Massachusetts to 
15 minutes.
  Mr. COBURN. Will the Chair advise the amount of time left on either 
side? I thank the Senator for yielding.
  The PRESIDING OFFICER. The majority has 32 minutes remaining and the 
minority has 22 minutes remaining.
  The Senator from Massachusetts is recognized.
  Mr. KENNEDY. I thank the Chair.
  Mr. President, the Senate's exercise of its advice and consent power 
when it considers nominees to the Federal bench is one of our most 
important constitutional responsibilities. We are conferring on men and 
women the power to interpret and apply our laws for the rest of their 
lives. It is the last opportunity any of us have to sit in judgment of 
them.
  Our task is not to evaluate a nominee based on politics but, rather, 
to consider other important criteria. We start with the essential 
elements of professional excellence and personal integrity, but we must 
also evaluate the likelihood that nominees will be fair and openminded 
judges who bring compassion and understanding of the history and 
fundamental values of America to the bench.
  In considering a nomination to our Federal courts of appeals, we must 
exercise special care. The Supreme Court accepts few cases out of the 
thousands of cases it is asked to hear every year. The Federal 
appellate courts are almost always litigants' last hope for justice 
from our legal system. For those who seek relief from race and sex 
discrimination at work or at school, for criminal defendants who have 
been wrongfully deprived of their liberty or sentenced to death, or for 
those who seek to protect our liberties, the circuit courts of appeals 
are almost always their last hope for justice.
  The record of Jerome Holmes demonstrates that he is not a nominee we 
can afford to entrust with the judicial power of the United States. His 
professional qualifications are not in dispute, but he has taken 
extreme public stances on issues that regularly come before our courts. 
These stances suggest that he will not approach these issues with an 
open mind or fairly apply the law in these areas.
  Perhaps most troubling are Mr. Holmes' strong and repeated statements 
denouncing affirmative action. Just last week, this body reauthorized 
the Voting Rights Act, one of America's greatest achievements in the 
effort to overcome centuries of racial oppression. During that debate, 
numerous Senators had the occasion to revisit the legacy of racially 
motivated violence, discrimination, and disenfranchisement that 
oppressed so many in this country. We had the occasion to reflect on 
the need for strong and complete remedies for those centuries of 
discrimination that would eliminate it root and branch.
  Affirmative action is an effective and necessary remedy that must be 
available if we are to provide opportunity for all, by breaking down 
persisting barriers and making it possible for all Americans to 
demonstrate their abilities and fulfill their potential. Yet Mr. Holmes 
has repeatedly denounced affirmative action as both immoral and 
unlawful.
  Shortly after the Supreme Court struck down the University of 
Michigan's affirmative action program for undergraduates but upheld the 
law school's program, Mr. Holmes wrote:

       The court did not go far enough: Affirmative action is 
     still alive.

  He lamented that the Court ``missed an opportunity to drive the final 
nail in the coffin of affirmative action.'' He called affirmative 
action a ``quota system'' and accused it of perpetuating a society in 
which ``race unfortunately still matters.'' He referred to scholarships 
for minority students as ``constitutionally dubious and morally 
offensive.''
  We know that race does still matter in our society, which is the very 
reason lawful affirmative action programs are needed. They guarantee 
opportunity for minority students who, because of discrimination and 
its legacy, might otherwise never be able to excel. We all hope for the 
day that individuals will not be denied opportunity because of race, 
but until we reach that day, affirmative action programs are part of 
the solution, not the problem.
  Mr. Holmes' extreme statements make it impossible to believe that he 
will approach affirmative action cases with an open mind. He says he 
will fairly apply our Nation's affirmative action laws, which have 
helped--and continue to help--women and racial minorities overcome 
centuries of discrimination, but his bland assurances are far from 
sufficient to overcome his record.
  His views on our criminal justice system are also disturbing. He has 
put on a set of ideological blinders to ignore the invidious racial 
discrimination that persists in criminal trials and sentencing. When a 
defense lawyer in Oklahoma had the courage to suggest that African 
Americans accused of committing crimes against Whites in Oklahoma City 
could not receive a fair trial, Mr. Holmes delivered a swift rebuke. 
Not only did he dismiss the effect of racial bias, he also chastised 
the defense lawyer for even raising the issue, contending that he had 
undermined the

[[Page 15610]]

public's confidence in the judicial system. The problem of racial bias 
in juries is an important issue in the criminal justice system that 
merits discussion and recognition that we should be seeking effective 
remedies, not blaming the messenger.
  By approving this nominee, the Senate would send a message that we 
don't care about the racial disparities in our criminal justice system. 
If we confirm an appellate judge who ignores the realities of such 
disparities, we cannot expect the public--especially minorities--to 
believe that they will get a fair day in court. The fact that Mr. 
Holmes stated these views while serving as deputy criminal chief of a 
U.S. attorney's office only reinforces my concern about his ability to 
separate his extreme personal ideologies from his actions as a judge if 
we confirm his nomination.
  Mr. Holmes' aggressive support for the death penalty raises special 
concern. He said that the statement society sends through the death 
penalty ``is not materially diminished by the fact that . . . mistakes 
are made'' in imposing the death penalty. Unlike Mr. Holmes, most death 
penalty supporters appreciate the severity of a death sentence. It is 
irreversible punishment, which means that we must do everything in our 
power to reduce the possibility of mistakes. Many death penalty 
advocates have supported expanded use of DNA testing and other tools to 
avoid mistakes in capital punishment cases.
  Taking an extreme position yet again, Mr. Holmes has no respect for 
these concerns. He is more interested in the symbolism of the death 
penalty than the fact that an individual life will end. Because the 
Supreme Court hears so few death penalty cases, appellate courts often 
have the final word on the life and death of criminal defendants. We 
should not support the confirmation of a Federal judge who has so 
little respect for this grave responsibility.
  The Senate has supported the overwhelming majority of President 
Bush's judicial nominees. I have voted for the confirmation of dozens 
of judges with whom I have ideological differences. However, the 
nomination of Jerome Holmes is different. I do not believe that he will 
serve on the Federal bench with a fair and open mind. I, therefore, 
cannot support the confirmation of Jerome Holmes to the Tenth Circuit, 
and I urge the Senate to oppose his nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, it is amazing the way things get twisted. 
I want to read exactly what Jerome Holmes said in his comments about 
racial bias. The Senator from Massachusetts just stated that he would 
ignore reality. Here is what he said in his article.

       One need not doubt the lingering effects of racism in our 
     society to reject the above claims. Harvard law professor 
     Randall Kennedy and other scholars remind us that racial 
     prejudice still exists in the jury box.

  He didn't deny it. He said it did. You just heard the opposite of 
that. What he said is: As an African American, I am among the first to 
condemn it.
  We did not hear any of that. And what was just said about what Jerome 
Holmes wrote, he condemns it. He can't be trusted. That was what we 
just heard. What you just heard was a litmus test that if he doesn't 
agree down the line with those who have a completely different 
political philosophy, he is unqualified. Here is a Black man who has 
been discriminated against tons in his life. It makes no intuitive 
sense that he would oppose a jury system that ferreted out racial 
discrimination. So that is unfounded.
  His comments on the death penalty, Judge Holmes said we should use 
DNA but that should come through the legislature as direction, as a 
directive of the legislative bodies in terms of creating parameters, 
also, which you would say is to his credit because what he said is: I 
recognize the limited role of the judiciary in how we make decisions. 
We should be dependent in certain areas on directions from the 
legislative body. In other words, what we rule on is the laws of this 
country which the legislative body and the executive branch determine. 
So all he is doing is deferring. It has nothing to do with whether DNA 
should be used to protect the life of somebody wrongly convicted and 
under threat of the death penalty.
  The other quote we heard is it is impossible for him to have an open 
mind because he disagrees with the Senator from Massachusetts on an 
issue. Well, if we use that standard in this body, nothing would ever 
happen. If we disagree, then we can't have an open mind, we can't 
listen, we can't learn.
  He won't come unbiased to the court. There is not one judge anywhere 
in this country who does not have biases. The question is can they 
separate their biases through the commitment of their oath of office to 
say: Here is our function. Here is how we function. Here is how we 
carry out our obligations.
  Nobody meets the standard that the Senator from Massachusetts just 
set up. There would be nobody with whom I might have a philosophical 
difference that I could not raise that same example.
  I am hopeful that the Members of this body will overwhelmingly 
endorse Jerome Holmes, the first African American to be appointed to 
the Tenth Circuit Court of Appeals. For the very reasons that Senator 
Kennedy raised, Jerome Holmes disproves every one of those arguments.
  It gives me great pleasure to yield to the senior Senator from 
Oklahoma at this time and to thank him in the process and to also 
recognize and thank the President for the nomination of Jerome Holmes.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, first, let me thank the junior Senator 
from Oklahoma for the time he spent on the floor and the time he spent 
defending this man, not that he should ever need any type of defense 
against some of the accusations. I didn't realize that there is an 
article referred to where he stated: There are other ways to get 
minority students on college campuses besides handing out benefits 
based solely on skin color.
  I am proud of it. I am also proud of the fact that I have known 
Jerome Holmes for some 5 years. Frankly, prior to this nomination, I 
made recommendations to the President that he consider this man because 
he is so incredibly qualified. We all agree he is a man of great 
character and undeniably fit for the bench. He has connections with 
both Oklahoma City and throughout Oklahoma, as well as the District of 
Columbia, a family history that goes back.
  He was one of the prominent figures in the Oklahoma City bombing that 
took place 11 years ago. He was on the Oklahoma City bomb prosecution 
team, and I believe it was his distinguished service as assistant U.S. 
attorney that really began to set him apart in the legal field.
  When asked about Mr. Holmes, most lawyers in Oklahoma begin their 
compliments with his work as U.S. assistant attorney in some public 
corruption cases in our State. He is someone who is willing to get in 
there and criticize and open up things other people aren't, a great 
characteristic and I think very important. But if I were to single out 
another one, I would say his chairmanship of City Rescue Mission in 
Oklahoma. This is their mission statement:

       Serving the homeless both with help, hope, and healing in 
     the spirit of excellence, under the call of Christ.

  I have certainly made my position known for quite some time 
concerning him and how he limits his opinions to the facts, the 
litigants, and law before him in any case. At a time when our Nation is 
faced with the onslaught of judicial activism, he is a breath of fresh 
air and I believe he is a man of character and principle; that he will 
rule justly within the parameters of the law.
  We have a resolution from the Oklahoma Bar Association. I have the 
former president of the American Bar Association, the president-elect 
of the local Federal bar association, I have the deans of all three of 
the Oklahoma law schools praising him in the highest of terms.
  Judge Holloway, currently sitting on the Tenth Circuit, noted Mr. 
Holmes's

[[Page 15611]]

compassion for people whose cases were before the court. John Richter, 
the U.S. attorney for the Western District of Oklahoma, who worked with 
Mr. Holmes, can speak from the prosecutor's perspective and has said 
that Mr. Holmes is a man of integrity and character and possesses a 
rock-solid work ethic.
  Mike Turpen is someone with whom Senator Coburn is very familiar. I 
don't believe in the years I have known Mike--and we have one of these 
very honest relationships. He is a very partisan Democrat. I don't 
think he has ever said anything nice about a Republican in his life 
except Jerome Holmes. Dan Webber--we have all these Democrats who are 
lined up without anyone dissenting from the idea that this guy is the 
perfect nominee to be confirmed to the Tenth Circuit.
  Judge Ralph Thompson--I was elected to the State legislature with 
Judge Thompson. I considered him not just one of my closest personal 
friends, but he is certainly a judge of distinction in Oklahoma and has 
been for over 30 years. He ought to know a thing or two about judges. 
He said:

       Mr. Holmes is dedicated completely to the rule of law, the 
     proper role of the judiciary and to applying and interpreting 
     the law without regard to personal views on given issues.

  I don't think there is any judge, any Federal judge in the history of 
Oklahoma, who is more highly regarded than Judge Thompson. He also went 
on to affirm Mr. Holmes's honesty and compassion.
  I have a letter from Pastor George Young, a member of the NAACP and 
the Urban League, who showed great character in voicing his support for 
Mr. Holmes. He said: I trust Mr. Holmes, and so in light of our 
differences I support his nomination. Now, he is one who doesn't agree 
with everything, every statement that Jerome Holmes has made, and yet 
he supports his nomination. He is for him. He is supporting him, a 
member of the NAACP and the Urban League.
  I talked with various attorneys in the State, and they all have good 
things to say about him. What I want to do, Mr. President, is submit 
for the Record a list of letters, if this has not been done by my 
colleague from Oklahoma.
  It has been done, so it is already in the Record.
  I thank my colleague for the time he spent in the Chamber. It happens 
I am on the Armed Services Committee, and we have a critical meeting 
that is going on even right now, so I haven't been able to be here, but 
my absence from the floor is no indication that I don't hold this 
person in the highest regard.
  I worked hard in getting his name to the President, made that 
recommendation early on, and I believe he will be confirmed and history 
will reflect later on that he would be one of the greatest circuit 
judges, and I certainly encourage my colleagues to support his 
nomination to the Tenth Circuit.
  I thank the Chair.
  Mr. GRAHAM. Mr. President, I am very pleased to support the 
nomination of Jerome Holmes to be a judge on the Tenth Circuit Court of 
Appeals. Due to a scheduling conflict, I am unable to be here to vote 
for Mr. Holmes, though I would have cast my vote to confirm him. In any 
event, with his stellar qualifications, I doubt my vote will be needed. 
President Bush made a great choice in nominating Mr. Holmes, and I look 
forward to great things from him during his tenure on the Tenth 
Circuit.
  Mr. FEINGOLD. Mr. President, I will vote ``no'' on the nomination of 
Jerome M. Holmes to be a judge on the U.S. Court of Appeals for the 
Tenth Circuit, and I would like to take a minute to explain why I 
reached this decision.
  This is an important nomination and should receive close scrutiny. 
Judges on the court of appeals have enormous influence on the law. 
Whereas decisions of district courts--a position Mr. Holmes has never 
held--are subject to appellate review, the decisions of the courts of 
appeals are in almost all cases final, as the Supreme Court agrees to 
hear only a very small percentage of the cases on which its views are 
sought.
  I believe in certain longstanding touchstones of the qualifications 
needed for judicial nominees: legal competence, fairness, and the 
ability to approach issues with an open mind. We sometimes short-hand 
these qualities into a single phrase--a judicial temperament. In 
evaluating a nominee's judicial temperament, our goal is to have an 
evenhanded judiciary that hears the case before it and applies the law 
fairly and uniformly, rather than letting strong personal convictions 
override the facts or the law. We do this for a simple but fundamental 
reason, namely, that we want a highly qualified and independent 
judiciary that can command the respect and admiration of the American 
people.
  In the nomination of Mr. Holmes, we have a nominee to one of our 
highest courts who has never served as a judge before. President Bush 
originally nominated Mr. Holmes to be a Federal district judge in 
Oklahoma earlier this year. Prior to this nomination, Mr. Holmes had 
been an assistant U.S. attorney in Oklahoma and in private practice. 
The Judiciary Committee was ready to consider that initial nomination--
to determine the merits of Mr. Holmes serving in his first judicial 
position as a Federal district judge, a position with substantial 
responsibility.
  But for some reason Mr. Holmes' nomination was upgraded to the U.S. 
Court of Appeals for the Tenth Circuit. Placing a nominee with no 
judicial experience on an appellate court makes it hard to evaluate the 
nominee's judicial temperament--his capacity to be fair and impartial.
  With no judicial record to illuminate his views, we are left only 
with Mr. Holmes' words as a window into his judicial temperament. Those 
words are troubling and could lead a reasonable person to question his 
objectivity and temperament. After the Supreme Court's nuanced 
affirmative action ruling, Grutter v. Bollinger, Mr. Holmes derided the 
Court for missing the ``opportunity to drive the final nail in the 
coffin of affirmative action,'' and complained that ``[t]he court did 
not go far enough: Affirmative action is still alive.'' He has referred 
to scholarship programs targeted at minority children as ``morally 
offensive.'' He has called African-Americans leaders, on various 
occasions, ``ideologically bankrupt'' and suggested that their 
opposition to school vouchers is insincere. In a letter to a 
publication, Mr. Holmes flippantly dismissed a doctor's complaint that 
his colleagues had ``negative reactions to his dreadlocks'' as 
``naive.'' He has even gone so far as to claim that efforts to address 
racial bias in jury selection actually harm the criminal justice 
system.
  Mr. Holmes has even dismissed problems with the administration of the 
death penalty. In a 2004 speech, he said: ``The statement society is 
sending--that certain conduct and the perpetrators of it deserve to die 
is not materially diminished by the fact that in the implementation of 
the death penalty mistakes are made.'' In response to my written 
questions regarding whether executing an innocent person was an 
acceptable mistake, Mr. Holmes responded by saying that ``the criminal 
justice system should be administered in a manner that eliminates 
mistakes--to the extent it is humanly possible--and yields accurate 
outcomes.'' I do not think this is an acceptable answer to a fairly 
simple question. His statements suggest a rather cavalier approach to a 
very significant issue in contemporary criminal law.
  Mr. Holmes' dismissive comments about affirmative action, school 
vouchers, and the death penalty were not offhand remarks, or 
impassioned advocacy on behalf of a client. Nonetheless, Mr. Holmes, of 
course, urges us to set his earlier statements aside, and look to his 
assurances of his future impartiality as a judge. But Mr. Holmes did 
little to actually address the concerns of many members of the 
Judiciary Committee. Rather than discuss his previous comments openly 
and candidly--and take the opportunity to show why those comments might 
not reflect his actual thinking--he provided stock and unconvincing 
answers that he considers racism to be a ``negative influence'' in 
society and that he would follow Supreme Court precedent.

[[Page 15612]]

  Mr. Holmes' actions in connection with his membership in the Men's 
Dinner Club of Oklahoma also suggest, rather than candor, a strategy of 
simple image control. Mr. Holmes, having been a member of this club 
that excludes women from membership, resigned from its membership on 
February 2, 2006 just 2 weeks prior to his initial nomination to be a 
district court judge. Mr. Holmes has defended this institution as, to 
his knowledge, not ``practicing invidious discrimination.'' So what 
accounts for his resignation? His explanation--that ``some might 
perceive the Men's Dinner Club as an improper organization''--suggests 
not a principled decision but a pure political and image calculation. 
Clearly, Mr. Holmes wishes to make this nomination as palatable as 
possible--and we should therefore take his assurances and stock answers 
with a grain of salt.
  Mr. President, I am saddened that President Bush has once again 
proposed a judicial nomination that I cannot support, especially 
because Mr. Holmes would be the first African American to serve on the 
Tenth Circuit. But he has never served as a judge either on the Federal 
or State level--and his statements on a broad range of topics suggest 
concerns about his ability to provide impartial justice. And, by 
failing to explain his statements and views with candor, he missed a 
chance to show the Judiciary Committee that he has the deliberative and 
impartial reasoning needed to serve on an appellate court. We want a 
judiciary that the American people respect and admire as impartial. 
With no judicial record to examine and a history of troubling 
statements, Mr. Holmes has not shown that he will apply the law fairly. 
I will therefore vote ``no.''
  Mr. LEVIN. Mr. President, I will oppose the nomination of Jerome 
Holmes to the Tenth Circuit Court of Appeals. Although I do not 
question the integrity or qualifications of Mr. Holmes to be a Federal 
circuit court judge, I do have serious questions about his ability to 
be an impartial jurist.
  While all judges have and are entitled to their personal views and 
philosophies, a judge's decisions should not be controlled by an 
inflexible ideology. When a nominee's personal views will determine or 
dominate their judgements, such a nominee should not be put in a 
lifetime position on the Federal bench.
  I am concerned by statements that he has made indicating insufficient 
sensitivity about the irreversible errors in the implementation of the 
death penalty. For example, in a presentation given by Mr. Holmes, he 
said that:

       Like any human endeavor, there is a possibility of error . 
     . . But the statement society is sending--that certain 
     conduct and the perpetrators of it deserve to die--is not 
     materially diminished by the fact that in the implementation 
     of the death penalty mistakes are made.

Mr. Holmes' statement demonstrates a lack of understanding and concern 
about the death penalty and the way that erroneous convictions 
undermine a legal system.
  Mr. Holmes has also sharply criticized affirmative action programs 
both before and after the Supreme Court rulings and those hardline 
views exhibited a lack of adequate respect for Supreme Court precedent. 
Although he told members of the Judiciary Committee that he would 
follow precedent, he was vocal in his opposition to the Supreme Court's 
decision in Grutter v. Bollinger, criticizing the Court for missing an 
``important opportunity to drive the final nail in the coffin of 
affirmative action''.
  Because Mr. Holmes' statements do not reflect the objectivity 
necessary to serve in a lifetime appointment on the Federal bench, I 
cannot vote to confirm his nomination.
  Mr. DURBIN. Mr. President, Jerome Holmes has made some troubling 
statements about affirmative action and the use of race in our society. 
He has said:

       [Affirmative action] policies necessarily divide us along 
     racial lines, and establish a spoils system based upon skin 
     color. . . .
       [t]he [Supreme] court upheld the affirmative action policy 
     of the university's law school [in the 2003 Michigan case]. 
     And in so doing, it missed an important opportunity to drive 
     the final nail in the coffin of affirmative action. . . .
       [r]ace-based scholarship programs . . . [are] 
     constitutionally dubious and morally offensive racial 
     classifications. . . .
       Al Sharpton, Jesse Jackson and their ilk have little to 
     offer me or other African-Americans in the 21st century. They 
     continue to peddle a misguided and dangerous message of 
     victimization. . . . As long as Jackson and company can 
     successfully portray African-Americans as victims to the 
     public at large, they'll be able to wring concessions out of 
     educational institutions like Harvard University and 
     corporate 
     America . . . .

  Mr. Holmes didn't make just an occasional comment against affirmative 
action. He has written over a dozen columns and op-ed pieces expressing 
his views on race and affirmative action.
  I understand and accept that people in good faith can disagree about 
issues of race and the merits of affirmative action. It is a hard issue 
for many people and it stirs passions on both sides. But Mr. Holmes' 
statements are those of an ideological soldier. When it comes to 
affirmative action, Mr. Holmes seems to have open hostility, not an 
open mind.
  In its letter of opposition to the Holmes nomination, the Leadership 
Conference on Civil Rights wrote: ``Mr. Holmes has been a longstanding 
and outspoken critic of affirmative action, and his views raise serious 
questions about whether he would rule impartially and fairly in cases 
involving affirmative action.''
  I asked Mr. Holmes a simple question: Would you be willing to recuse 
yourself in all cases involving affirmative action?
  Section 455 of title 28 of the United States Code states: ``Any 
justice, judge, or magistrate judge of the United States shall 
disqualify himself in any proceeding in which his impartiality might 
reasonably be questioned.''
  This seems like a simple standard, and I share the belief of the 
Leadership Conference on Civil Rights that Mr. Holmes presents a clear 
case of someone whose impartiality would be questioned when it comes to 
affirmative action.
  But Mr. Holmes doesn't see it that way. He said he would not recuse 
himself in affirmative action cases. He said he would be able to put 
his personal views aside and rule fairly on this issue. I doubt it. He 
harbors such hostility to affirmative action and such disdain for those 
who promote it--that I believe he will not have an open mind on this 
issue.
  We have seen judicial nominee after judicial nominee come before this 
committee and pledge to put their personal views aside. But they rarely 
do. Chief Justice John Roberts and Justice Samuel Alito said they would 
put their personal views aside before they were confirmed, but they 
have not done so.
  Just in the last 2 months, Chief Justice Roberts and Justice Alito 
have voted to limit the scope of the Voting Rights Act. They have voted 
to strip whistleblower protections for prosecutors. They have voted to 
restrict the right to privacy so that can police officers can enter a 
home without knocking. They have voted to expand the death penalty and 
to reduce the rights of the criminally accused. They have voted to roll 
back 30 years of environmental protection under the Clean Water Act. 
And in the case Hamdan v. Rumsfeld, Justice Alito embraced the view 
taken by John Roberts in the appellate court that the President should 
have unchecked power when it comes to using military commissions for 
enemy combatants.
  There are very real and serious consequences when it comes to 
confirming judicial nominees.
  I also think Mr. Holmes lacks good judgment because he didn't answer 
several questions that I asked him during the nomination process.
  For example, I asked him if be believed the Supreme Court cases of 
Roe v. Wade, Brown v. Board of Education, and Miranda v. Arizona are 
consistent with the notion of ``strict constructionism.'' Mr. Holmes 
refused to answer. He said: ``it would be inappropriate for me to offer 
my personal views as to whether these decisions are consistent with a 
particular school of judicial decision-making.''

[[Page 15613]]

  Well, tell that to Deborah Cook. She was a nominee to the U.S. Court 
of Appeals for the Sixth Circuit a few years ago, and I asked her the 
same question. She answered it. I appreciated her candor, and I voted 
to confirm her.
  I also asked Mr. Holmes to explain a statement he made about his 
judicial philosophy. In his Senate questionnaire, he wrote: ``The 
judiciary should not . . . issu[e] rulings that go beyond the 
resolution of the dispute before the court to impose wide-ranging 
obligations on societal groups.'' I asked Mr. Holmes to provide some 
specific examples of what he meant by this. He refused to do so.
  I do not believe Jerome Holmes deserves a lifetime position on the 
second highest court in the country.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I ask unanimous consent that the vote on 
the confirmation of Jerome Holmes be at 11:45 a.m. today with the 
remaining time under the majority.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. COBURN. I thank the Chair. I will not take all the time. I want 
to go back to what we said earlier this morning. If we are going to do 
a litmus test on judges, if we are going to say a judge cannot have an 
opinion outside of his role of a judge, we will destroy this country, 
whether it is a conservative litmus test or a liberal litmus test.
  The fact is, as to Jerome Holmes, there have been very few 
appointments or nominees for this position at the appellate level that 
compare to the qualifications of Mr. Holmes. He also has the life 
experiences that will make him even more valuable on the court in terms 
of his compassion. He has experienced discrimination as an African 
male. He has risen to heights on his own, struggled--advanced degrees 
from Harvard, law degree from Georgetown, cum laude from his alma 
mater. There are very few people who will measure up to him.
  Now, does he fit every litmus test? No, he doesn't fit every litmus 
test that I might have for a judge, but that is not the basis under 
which we should be considering judges.
  He does, in fact, have the one key characteristic that is necessary, 
and it has been attested to by the people who know him. It has been 
attested to if you just heard him in the hearings. But of all those who 
have come to the floor to oppose him, members of the Judiciary 
Committee wouldn't even come and confront him with concern. They didn't 
come to the hearing. They didn't hear what he had to say. They had 
their minds made up.
  The fact is, this is an excellent nomination. It is someone of whom 
we in our country should be proud, who recognizes the diversity of our 
country, and despite what the Senator from Massachusetts said, he can 
be entrusted with the future of this country, our Constitution, and the 
limited role of a judge in applying the law.
  With that, Mr. President, I yield back the remainder of our time and 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Jerome A. Holmes, of Oklahoma, to be United States Circuit Judge for 
the Tenth Circuit?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from South Carolina (Mr. Graham).
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein) and the Senator from Connecticut (Mr. Lieberman) are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Burr). Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 67, nays 30, as follows:

                      [Rollcall Vote No. 213 Ex.]

                                YEAS--67

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bingaman
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Jeffords
     Johnson
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--30

     Akaka
     Bayh
     Biden
     Boxer
     Cantwell
     Clinton
     Dayton
     Dodd
     Durbin
     Feingold
     Harkin
     Inouye
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--3

     Feinstein
     Graham
     Lieberman
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President shall 
be immediately notified of the Senate's action.

                          ____________________