[Congressional Record (Bound Edition), Volume 152 (2006), Part 4]
[Senate]
[Pages 4760-4762]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF MICHAEL A. CHAGARES TO BE U.S. CIRCUIT JUDGE FOR THE 
                             THIRD CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session.
  The clerk will report.
  The legislative clerk read the nomination of Michael A. Chagares, of 
New Jersey, to be United States Circuit Judge for the Third Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. shall be equally divided for debate.
  Mr. LAUTENBERG. Mr. President, I rise to express my support for the 
confirmation of Michael Chagares to a seat on the U.S. Court of Appeals 
for the Third Circuit.
  A Federal judge must be fair, impartial, and well-qualified. I 
strongly believe that if you look at Mr. Chagares' record and his 
appearance before the Senate Judiciary Committee, it is obvious that he 
is the right person for this assignment.
  Mr. Chagares is currently in private practice, but he served in the 
U.S. Attorney's office in New Jersey for 14 years.
  Through hard work and diligence, he rose to become the head of the 
civil division, where he supervised and managed all civil cases on 
behalf of the United States Government, its agencies and officials. He 
oversaw litigation, directed legal positions to be taken in court, and 
approved settlements.
  Before he became head of the civil division, Mr. Chagares directed 
the Affirmative Civil Enforcement Unit of the U.S. Attorney's Office 
for several years. During his tenure in the U.S. Attorney's office, Mr. 
Chagares received a number of awards and commendations, including two 
director's awards for superior performance as an assistant U.S. 
Attorney.
  Mr. Chagares is a graduate of Seton Hall Law School in Newark, where 
he has also taught as an adjunct professor since 1991.
  His familiarity with the Third Circuit goes back to the late 1980s, 
when he worked as a law clerk for the honorable Morton Greenberg.
  The Third Circuit is based in Philadelphia, and it considers appeals 
from Federal district courts in Pennsylvania, New Jersey and Delaware. 
It is a vitally important court, and his is an important seat, as he 
will replace Michael Chertoff, who left the court to serve as Secretary 
of the Department of Homeland Security.
  I hope my colleagues agree with me that Mr. Chagares is more than 
qualified for this position, and I hope they will join me in voting for 
his confirmation.
  Mr. MENENDEZ. Mr. President, I rise in strong support of the 
nomination of Michael A. Chagares to be a Circuit Judge on the U.S. 
Court of Appeals for the Third Circuit.
  It is an honor that another person from my home State of New Jersey 
has been called to serve this Nation by the administration. The 
confirmation of a judge to a lifetime appointment is a vital 
responsibility given to this body by the Constitution and one that I 
take very seriously.
  Mr. Chagares has been nominated to replace the current Secretary of 
Homeland Security, Michael Chertoff, on the

[[Page 4761]]

Third Circuit. No matter one's political persuasion, we all take pride 
in the honor that has been bestowed on a fellow New Jerseyan.
  Mr. Chagares is a New Jersey native who graduated from Gettysburg 
College and Seton Hall School of Law, with honors. Upon graduation, he 
clerked for Judge Greenberg on the Third Circuit. Over the past 15 
years, Mr. Chagares has served the public with distinction in the U.S. 
Attorney's Office for the District of New Jersey and has also worked in 
private practice.
  In addition, he is a popular Professor of both appellate advocacy and 
civil trial practice at Seton Hall. I believe this popularity is a 
testament to his ability to both convey the essence of the subject 
matter and do it in a way that excites a new generation of lawyers.
  The American Bar Association has rated Mr. Chagares as ``well 
qualified'' for the position that he has been nominated. It is a view 
that I share as well.
  I am pleased to see that people of his quality are willing to serve 
our Nation in the administration of justice, and join Senator 
Lautenberg in commending him to the Senate.
  Mr. President, I urge my colleagues to support the nomination of Mr. 
Chagares to be a judge on our Nation's Third Circuit Court of Appeals.
  Mr. LEAHY. Mr. President, this morning, the Senate will confirm 
Michael Chagares to a lifetime appointment to the U.S. Court of Appeals 
for the Third Circuit. This confirmation will bring the total number of 
judicial appointments since January 2001 to 235, including the 
confirmations of 2 Supreme Court Justices and 44 circuit court judges. 
Of course, 100 judges were confirmed during the 17 months when there 
was a Democratic majority in the Senate. In the other 45 months, under 
Republican control, only 135 judges have been confirmed. Ironically, 
the Senate was almost twice as productive under Democratic leadership 
as under Republican leadership.
  Recently, President Bush withdrew the nominations of Judge Henry Saad 
to the Sixth Circuit Court of Appeals and Judge Daniel P. Ryan to the 
Eastern District of Michigan. These withdrawals are long overdue and 
bring to a close a sad chapter in history of judicial confirmations 
when the President and the chairman of the Judiciary Committee ignored 
opposition to nominations by the home State Senators.
  Even with negative blue slips opposing the nominations in 2003 from 
the home State Senators, the former Judiciary Committee chairman took 
the position to ignore them and proceed with hearing and to force the 
Saad nomination through the committee on a party-line vote. That was 
the first time the committee voted on a nominee with two negative blue 
slips and it may have been the first time any chairman and any Senate 
Judiciary Committee proceeded with a hearing on a judicial nominee over 
the objection of both home State Senators. It is certainly the first 
time in the last 50 years, and I know it was the first time during my 
32 years in the Senate.
  When Chairman Hatch chaired this committee and we were considering 
the nominations of a Democratic President, one negative blue slip from 
one home State Senator was enough to doom a nomination and prevent a 
hearing on that nomination. Indeed, among the more than 60 Clinton 
judicial nominees who this committee did not consider there were 
several who were blocked in spite of the positive blue slips from both 
home State Senators. So long as one Republican Senator had an 
objection, it appeared to be honored, whether that was Senator Helms 
objecting to an African-American nominee from Virginia or Senator 
Gorton objecting to nominees from California.
  The blue-slip policy in effect, and enforced strictly, by the 
Republican chairman during the Clinton administration operated as an 
absolute bar to the consideration of any nominee to any court unless 
both home State Senators had returned positive blue slips. No time 
limit was set, and no reason had to be articulated. Remember, before I 
became chairman in June of 2001, all of these decisions were being made 
in secret. Blue slips were not public, and they were allowed to operate 
as an anonymous hold on otherwise qualified nominees. In the 106th 
Congress alone, more than half of President Clinton's circuit court 
nominees were defeated through the operation of the blue slip or other 
such partisan obstruction.
  Perhaps the best documented abuses occurred in the Sixth Circuit, 
when the nominations of Judge Helene White, Kathleen McCree Lewis, and 
Professor Kent Markus to that court were blocked. Judge White and Ms. 
Lewis were themselves Michigan nominees. Republicans in the Senate 
prevented consideration of any of President Clinton's nominees to the 
Sixth Circuit for years. When I became chairman in 2001, I ended that 
impasse. Under Democratic leadership, in spite of the abuses by 
Republicans, we proceeded to consider and confirm 2 nominees to the 
Sixth Circuit among the 17 circuit judges we were able to confirm in 
our 17 months. We have continued to confirm judges, and the vacancies 
that once plagued the Sixth Circuit have been cut dramatically. Where 
Republican obstruction led to 8 vacancies on that 16-judge court, 
Democratic cooperation has allowed these vacancies to be filled and 
only 2 remain. The Sixth Circuit currently has more judges and fewer 
vacancies than it has had in years.
  Ignoring the opposition of Michigan's Senators, President Bush 
renominated Judges Saad and Ryan in 2005 rather than nominate consensus 
nominees for those vacancies that could be easily confirmed. In fact, 
Judge Ryan's nomination was not withdrawn until last week even though 
he received a majority ``not qualified'' rating from the American Bar 
Association in March 2005. I look forward to the White House 
reconsidering its confrontational posture and working with the Senate 
to send to the Senate well-qualified nominees who can be confirmed with 
the support of Michigan's Senators.
  These are not the only nominations the President has withdrawn 
recently. Last month, the President also withdrew the nomination of 
James Payne to the Tenth Circuit Court of Appeals after information 
became public about that nominee's rulings in a number of cases in 
which he appears to have had a conflict of interest. Those conflicts 
were pointed out not by the administration's screening process or by 
the ABA but by online journalists.
  As I discussed last month, at a minimum that case and the other 
withdrawals reinforce concerns about this White House's poor vetting 
process for important nominations which became apparent with the 
withdrawals of Bernard Kerik to head Homeland Security, Harriet Miers 
to the Supreme Court, and Claude Allen to be a Fourth Circuit judge. It 
was not the administration's vetting but reporting in a national 
magazine that doomed the Kerik nomination. It was opposition within the 
President's own party that doomed the Miers nomination. Democratic 
Senators resisted the nomination of Allen, a Virginian, because the 
President was seeking to appoint someone from another State to a 
Maryland seat on the Fourth Circuit. Unfortunately, rather than being 
thorough in selecting lifetime appointments of judicial officers who 
are entrusted with protecting the rights of Americans, all too often 
this White House seems more interested in rewarding cronies and picking 
political fights.
  As today's confirmation demonstrates, Democrats in the Senate 
cooperate with this White House when it focuses on sending the Senate 
qualified consensus nominees. Unfortunately, as the recent withdrawals 
demonstrate, this White House too often does not want to cooperate with 
us.
  I congratulate the nominee and his family on his confirmation today.
  Is all time yielded back on the nomination?
  Mr. DURBIN. I yield back all time on the minority side and ask for 
the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Michael A. Chagares, of New Jersey, to

[[Page 4762]]

be United States Circuit Judge for the Third Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Mississippi (Mr. Cochran).
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) is necessarily absent.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                       [Rollcall Vote No. 86 Ex.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Cochran
     Rockefeller
       
  The nomination was confirmed.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mr. KYL. Mr. President, I move to lay that motion on the table.
  The ACTING PRESIDENT pro tempore. Without objection, under the 
previous order, the President shall be notified of the Senate's action.

                          ____________________