[Congressional Record (Bound Edition), Volume 152 (2006), Part 6]
[Senate]
[Pages 8242-8244]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF MILAN D. SMITH, JR. TO BE UNITED STATES CIRCUIT JUDGE FOR 
                           THE NINTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session for consideration of Executive Calendar 
No. 625, which the clerk will report.
  The legislative clerk read the nomination of Milan D. Smith, Jr., of 
California, to be U.S. Circuit Judge for the Ninth Circuit.
  Mr. SPECTER. Mr. President, I have sought recognition to urge my 
colleagues to vote in support of the nomination of Milan D. Smith, Jr., 
for the U.S. Court of Appeals for the Ninth Circuit.
  The Judiciary Committee has held a hearing on Mr. Smith, and we 
recommend him to our colleagues.
  He was a graduate of Brigham Young University, cum laude, in 1966, 
and he has a law degree from the University of Chicago Law School in 
1969.
  He has had a distinguished career in the practice of law. After law 
school, he joined the international law firm of O'Melveny & Myers.
  In 1972, Mr. Smith formed his own firm, Smith Crane Robinson & 
Parker, one of Southern California's premier law firms specializing in 
complex transactions.
  Mr. Smith has served in public services. In 1988, he served as 
Commissioner of the California Fair Employment and Housing Commission 
where he remained until 1991.
  The American Bar Association gave Mr. Smith a ``substantial majority 
well qualified'' and a ``minority qualified'' rating.
  Beyond these excellent credentials, he comes with a strong 
recommendation from somebody who knows him very well, and that is our 
distinguished colleague, Senator Gordon Smith from Oregon.
  I am pleased at this time to yield the floor either to Senator Smith 
or to the senior Senator from California.
  The PRESIDING OFFICER. Under the previous order, there will be 5 
minutes each to the Senators from California and 5 minutes to the 
Senator from Oregon, and 5 minutes to the Senator from Pennsylvania.
  The Senator from California is recognized.
  Mrs. FEINSTEIN. Thank you very much.
  Mr. President, I am very pleased to be here as a member of the 
Judiciary Committee and as a Californian to indicate my support for the 
confirmation of Milan Smith to the Ninth Circuit Court of Appeals. It 
is a fine occasion to be able to come here and represent that we have a 
very competent man to become an appellate court judge.
  Mr. Smith has a long and distinguished legal career in our State. The 
chairman of the committee pointed out some of this. After graduating 
from the University of Chicago Law School in 1969, Milan Smith moved to 
Los Angeles where he has been an important part of the legal community 
ever since.
  Mr. Smith founded the law firm known as Smith Crane Robinson & Parker 
in 1972, and over the last 34 years with Smith Crane Robinson & Parker 
he has engaged in a wide-ranging legal practice in business and real 
estate law.
  After reviewing his extensive record, a majority of the American Bar 
Association rated him ``well qualified'' to serve as a judge of the 
Ninth Circuit Court of Appeals.
  He has demonstrated an impressive and enduring commitment to serving 
the public, from presiding over the Governing Board of the Los Angeles 
State Building Authority to acting as vice chairman of Ettie Lee Homes 
for Youth.
  As many of you know, Milan Smith is the older brother of our esteemed 
colleague, Senator Gordon Smith. I know the Senator from Idaho was just 
talking to Senator Smith and saying: Isn't it nice that California is 
getting a Californian.
  We are having a little tussle over another judge which the Senator 
from Idaho believes should be an Idaho judge, and the Senators from 
California believe should be a California judge. So that issue has not 
yet to be joined, but it certainly will.
  Mr. CRAIG. Mr. President, will the Senator yield only for a moment?
  Mrs. FEINSTEIN. Certainly.
  Mr. CRAIG. It is important to recognize that we are getting the Smith 
from California, and we are asking that we get a Smith from Idaho.
  Mrs. FEINSTEIN. California would prefer having two Smiths. But we 
will talk about that another day.
  The Smiths' maternal grandfather, Jesse Udall, was the chief justice 
of the Arizona Supreme Court. So Milan Smith stands poised to follow 
family precedent in serving on one of our Nation's highest courts.
  I congratulate him on this nomination. I urge all of my colleagues to 
vote for him. I say to his younger brother, who is sitting here in the 
Chamber, that it is a wonderful day for both Senator Boxer and for me 
to be able to see you so happy. I know what it means to you and how 
great it is to have such a fine legal mind in your family. We offer you 
our best congratulations, as well.
  Thank you very much, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, this is a special day for all of us who 
are on the floor presently because this date has been coming, in my 
opinion, for far too long. We could have done this 4 years ago, but 
sometimes it takes a while for good things to happen.
  We will not look back, we will look ahead.
  I say to my colleague, Senator Feinstein, that we are very fortunate 
because we worked hard to set up a system for our district court 
nominees which is working beautifully. We don't have rancor in 
California over judges--we really don't.
  This nomination of Milan Smith is also an opportunity to bring 
everyone together around a fine man, someone

[[Page 8243]]

who will be, I believe, a very fine judge. Why? Because Mr. Smith is 
highly respected by those who know him and know his work. I am 
confident he will discharge his responsibilities with dignity, 
integrity, and intelligence.
  After law school, Mr. Smith joined the firm of O'Melveny & Myers and 
later started his own law firm where he is the managing partner. His 
work in the private sector has given him a wealth of experience and has 
earned him respect from his peers.
  Mr. Smith's career goes beyond the private practice of law. He has 
dedicated a significant amount of time and energy to public service, as 
well. In 1984, then-Governor Deukmejian appointed Mr. Smith to the 
governing board of the Los Angeles Service Building Authority where he 
served as president until 1992. Since then, he has acted as the 
Authority's general counsel.
  He also was appointed as a member of the California Fair Employment 
and Housing Commission. He joined the Fair Employment and Housing 
Commission in 1988 and worked for the next 3 years to protect the 
rights of the disadvantaged. It says a lot about Milan Smith. This was 
something he wanted to do: protect the rights of others who are less 
fortunate than he.
  During that tenure, Mr. Smith worked with legislators to reverse a 
Supreme Court of California decision limiting the commission's power to 
reward and collect damages for victims of discrimination. Because of 
Mr. Smith's hard work, passion, and compassion, the California 
Legislature passed a bill restoring the commission's authority to award 
damages to victims of discrimination.
  When then-Governor Wilson vetoed the bill, Mr. Smith resigned in 
protest. We all know a lot of fine people, but it takes guts to stand 
up and say: I submit my resignation. That shows courage and 
independence of mind. Here is Milan Smith, standing up to a Governor of 
the same political party. That is hard to do. I am sure it was painful. 
I am sure it was terrible. But he did it.
  In his resignation letter, Mr. Smith said:

       Despite my generally conservative political views, I've 
     come to know much more of the sexual harassment, bigotry and 
     mean spiritedness abroad in the land. To continue to sit on 
     the FEHC when we can do nothing to fairly compensate genuine 
     victims of unlawful sexual harassment, for example, would be 
     unconscionable to me.

  Again, those words are eloquent. They are courageous. They show the 
kind of leadership we need in a judge. We need someone who is fair, 
someone who truly understands the rights of all Americans, and 
certainly of all Californians. Mr. Smith gained my profound respect by 
refusing to sit quietly in the face of what he believed to be 
injustice. It gives me confidence that as judges sit around and discuss 
cases that have come before them, he will be motivated by a fierce 
sense of independence. He will not fear standing up and will be counted 
when the moment comes.
  I am absolutely thrilled about this nomination. The Ninth Circuit 
will benefit greatly with the addition of Milan Smith. I strongly 
support his nomination. I had written a letter in favor of this nominee 
4, maybe more, 5 years ago. This is a wonderful day for me, personally. 
I know Senator Feinstein feels that way. My colleague feels that way, 
and I think most of our colleagues feel this way. It shows we can reach 
across party lines and come to a point where we can compromise. I am 
sure Mr. Smith isn't going to do everything I want or everything that 
Senator Frist wants, but this is a wonderful choice today.
  I yield the floor.
  The PRESIDING OFFICER. The proud Senator from Oregon.
  Mr. SMITH. Mr. President, it is an honor to be here today, a special 
day for me, I know for my brother, and all of our family.
  Let me begin my remarks by expressing to Senator Feinstein and 
Senator Boxer my heart felt appreciation for their kind words about my 
big brother. Let me tell them what a pleasure it has been to work with 
them on coming to this hour in which the Senate will vote on his 
confirmation.
  I would be remiss if I also did not give special thanks to Senator 
Frist and Senator Reid, the leaders of this Senate, for their courtesy 
to me in making this moment possible. Also, to Senator Specter and 
Senator Leahy, Senator Hatch who chaired the hearing for my brother, 
all have been his champions, as well, in this very difficult process.
  Finally, most profoundly I thank President Bush for his confidence in 
my brother, for his courtesy to my family, and to all of his staff, 
specifically Harriet Miers, who have been wonderful throughout this 
journey. I am profoundly thankful to them.
  I have been in this Senate now for a decade. There are times when I 
feel a certain electricity, a certain excitement to be here. As I 
reflect upon my memories of service and the hundreds of votes I have 
cast, some stand out more than others. But those that stand out most 
for me are those occasions when we watch the operation of the 
Constitution of the United States.
  This is one of those moments. Those special times are when the 
branches of our Government come together and we watch the Constitution 
literally in operation.
  What I am talking about in a broader sense is the rule of law. The 
rule of law stands in great contrast to the rule of man. The rule of 
man has been responsible for much of the blood and carnage and horror 
on this Earth. But it is the rule of law, however imperfect it is, to 
which we are all bound and to which we are all obligated to give 
obedience. The rule of law--equal protection, due process--involves 
principles which, fortunately, we in America are able to take for 
granted in large measure but which are at the center of a good and 
decent society that the American people have created in this country.
  Today we are watching the three articles of the Constitution in play. 
Article I establishes the Congress, specifically, the Senate, charged 
with providing advice and consent on nominations to the courts. Article 
II, the President has nominated Milan D. Smith, Jr., for this position 
on the Ninth Circuit. Article III is about the court's responsibility 
in dispensing equal protection and due process of law. This is one of 
those moments when these three branches of Government intersect in the 
Senate.
  For me, it is a very special moment, not just because of my 
responsibilities as a Senator, my understanding of the Constitution, 
but because it is a profoundly proud moment for my family.
  I could speak about my brother in many contexts. My colleagues from 
California have done that already. I could speak of our mother, Jessica 
Udall Smith, who is the descendent of David King Udall, who is one of 
the drafters of the Arizona State Constitution. I could speak of our 
grandfather, Jesse Udall, who was the chief justice of the Arizona 
Supreme Court for many decades. I could certainly speak of the heritage 
we received from our father, Milan D. Smith, and his service in the 
Eisenhower administration, his many discussions with us about politics, 
and the importance of public service.
  What I could also speak about is Milan's preparation. His academic 
credentials are sterling. I could speak about his studies at Brigham 
Young University, the University of Chicago Law School, and I could say 
many things that would make clear about him and to others his 
preparation for this moment in this great position.
  But what I will do is share with you, the whole Senate, what I wrote 
about my brother in introducing him to the Judiciary Committee. I only 
quote a part of it:

       Milan, Jr., is the eldest child of Milan Dale and Jessica 
     Udall Smith's ten children. I am the eighth in that number 
     and Milan's youngest brother. In my 54 years of life, Milan 
     has been an example and force for good in our family, and, 
     since the death of our parents, has been truly a family 
     leader and friend to us all through times of tears and 
     cheers.
       For as far back as my memory serves, I have been witness to 
     a concourse of people who have sought him out for his wisdom 
     and judgment, for counsel and comfort on matters great and 
     small. These have included my parents, myself, and all of my 
     brothers and sisters, cousins, and kinsman from far and wide, 
     his own six children, and of course, his legions of legal 
     clients over many decades. Without respect of persons, he has 
     been a wise friend and a good shepherd to all.

[[Page 8244]]

       His academic preparations and provident life speak for 
     themselves. But, in sum, what I can say is that he is one of 
     the wisest men I have ever known. He has an understanding 
     heart, a heart for judgment, he is possessed of the spirit of 
     discernment, between good and bad, right and wrong, the just 
     and the unjust. I cannot think of a time or a court, when a 
     man of his quality and preparations are more sorely in need 
     than this one, at this time, in our time.

  Mr. President, I am honored to be here today to speak about my big 
brother. I urge his confirmation to the Ninth Circuit Court of Appeals.
  That brings us to the point where it is my privilege to ask for the 
yeas and nays on behalf of Milan Dale Smith, Jr.
  I yield the floor.
  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 Milan D. Smith, Jr., of California, to be United States Circuit 
Judge for the Ninth Circuit? On this question, the yeas and nays have 
been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Mississippi (Mr. Cochran), the Senator from New Hampshire 
(Mr. Gregg), the Senator from Mississippi (Mr. Lott), the Senator from 
Arizona (Mr. McCain), the Senator from Pennsylvania (Mr. Santorum), and 
the Senator from Missouri (Mr. Talent).
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) is necessarily absent.
  The PRESIDING OFFICER. Are they any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 93, nays 0, as follows:

                      [Rollcall Vote No. 120 Ex.]

                                YEAS--93

     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
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Salazar
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--7

     Cochran
     Gregg
     Lott
     McCain
     Rockefeller
     Santorum
     Talent
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President shall 
be immediately notified of the Senate's action.

                          ____________________