[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. ____________________