[Congressional Record (Bound Edition), Volume 153 (2007), Part 13]
[Senate]
[Pages 18101-18111]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF LIAM O'GRADY TO BE UNITED STATES DISTRICT JUDGE FOR THE 
                      EASTERN DISTRICT OF VIRGINIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination which 
the clerk will report.
  The assistant legislative clerk read the nomination of Liam O'Grady, 
of Virginia, to be U.S. District Judge for the Eastern District of 
Virginia.
  The PRESIDING OFFICER. Unless the Senator from Virginia wants to 
modify the pending unanimous consent request to make certain that this 
nomination is called at 5:30, there is now 1 hour of debate equally 
divided on the nomination under the previous unanimous consent request, 
which would mean the vote would likely be in the range of 5:40.
  Who yields time?
  Mr. WARNER. Mr. President, I yield to the distinguished chairman of 
the committee.
  Mr. LEAHY. Mr. President, I am sorry, I was off the floor for a 
moment. I hesitate to interfere with my Senator away from home. What is 
the order?
  The PRESIDING OFFICER. Under the pending unanimous consent request, 
the debate was to begin at 4:30, with a vote at 5:30 on the judicial 
nomination. Senator Nelson asked unanimous consent and received it to 
proceed to speak and spoke until just a moment ago. So if we project 1 
hour from now the debate for the judicial nominee, the vote is likely 
to occur near 5:40.
  Mr. LEAHY. And the distinguished senior Senator from Virginia wishes 
to take time for the Republican side?
  Mr. WARNER. Well, actually, I had hoped to do it on the time of the 
Defense bill, but I yielded to the request of my colleague.
  Mr. LEAHY. We will work out the time.
  Mr. WARNER. Mr. President, I need 3 minutes.
  Mr. LEAHY. I yield to the Senator from Virginia such time as he 
needs.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I thank the distinguished chairman of the 
Judiciary Committee. He is always very courteous to the Senator from 
Virginia and I am appreciative of that.
  I rise with a sense of great pleasure to support an outstanding 
Virginian, Judge Liam O'Grady, who has been nominated by the President 
to serve as an article III judge on the United States District Court 
for the Eastern District of Virginia. I am pleased to note that Judge 
O'Grady also enjoys the support of my distinguished colleague, Senator 
Webb. Senator Webb,

[[Page 18102]]

upon joining the Senate, has worked with me, as we do on many things, 
in a very cooperative spirit to provide nominations to the President 
with respect to the judicial vacancies as they exist in our United 
States District Court in Virginia and to the Fourth Circuit, of which 
Virginia is one of the States served on that distinguished judicial 
panel, which largely resides in Virginia. I thank my distinguished 
colleague, Senator Webb, because he has become a very fast learner 
about the judicial process and we have worked together, and we now have 
nominations pending before the President with regard to the vacancies 
on the Fourth Circuit.
  Turning to Judge O'Grady, he has been nominated to fill the seat that 
was vacated by Judge Claude Hilton. For more than 20 years, Judge 
Hilton served with distinction as an active judge in the Eastern 
District of Virginia. We are fortunate he is continuing to serve on the 
court in senior status. In my view, we are equally fortunate to have a 
nominee such as Liam O'Grady who is willing to continue his public 
service on the bench.
  Since joining the Virginia bar in 1978--quite a few years ago--Judge 
O'Grady has worked as a sole practitioner, as assistant Commonwealth's 
attorney, as an assistant United States attorney, as a partner in an 
international law firm, and for the last 4 years, he has worked with 
the Eastern District of Virginia as a magistrate judge. Magistrate 
judges perform a very valuable function for our district courts.
  His career has provided him with a wide array of experiences. As a 
solo practitioner, he worked as a court-appointed criminal defense 
lawyer. As an assistant Commonwealth's attorney, he tried upwards of 
100 jury trials. As an assistant United States attorney, he focused on 
narcotics and organized crime cases. As a partner at a well-known law 
firm, he worked extensively on patent and trademark cases for a number 
of major industrial organizations in our country. As a magistrate 
judge, he has seen firsthand the extraordinary variety and volume of 
cases that come before a district judge serving not only in Virginia 
but elsewhere in America.
  Equally impressive is that despite the rigors of his career, he 
always found time to give back to his community. He has helped shape 
young legal minds through the instruction of law at both George 
Washington University and George Mason University. Moreover, while in 
private practice, he set up a pro bono legal clinic in his law firm and 
took court-appointed cases serving those in need.
  It is clear to me that this outstanding nominee, now to be voted on 
shortly by the Senate, is eminently qualified to serve on this 
prestigious court. In addition to having the support of his home State 
Senators, Judge O'Grady received the highest--I repeat, the highest--
recommendation of the American Bar Association and was equally 
recommended by a number of the bar associations of the Commonwealth of 
Virginia.
  I thank the distinguished chairman, Senator Leahy, and Senator 
Specter for providing the Virginia Senators an opportunity to present 
Liam O'Grady to the committee and for the committee to act in a very 
expeditious way and now to bring this nomination to the floor.
  Mr. WARNER. I yield the floor and thank the distinguished chairman.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I thank the Presiding Officer. I want the 
distinguished senior Senator from Virginia to know that, of course, I 
will be supporting his nominee, Judge O'Grady. This is an example of 
how quickly we can move judges when Senators work together. In this 
case, one of the most distinguished Republican Senators, combined with 
a distinguished Democratic Member, helped move Judge O'Grady to the top 
of the list. I predict within the next hour or so he will be confirmed.
  Mr. WARNER. Mr. President, I thank my colleague for the kind remarks.
  Mr. LEAHY. Mr. President, the Senate continues to make progress today 
with what I anticipate will be the confirmation of four more lifetime 
appointments to the Federal bench. Along with Judge O'Grady's 
nomination to the District Court for the Eastern District of Virginia, 
we consider three nominations for lifetime appointments to the District 
Court for the Western District of Michigan, those of Janet T. Neff, 
Paul Lewis Maloney, and Robert James Jonker. All four nominations are 
for judicial emergency vacancies, and they all have the support of 
their home State Senators.
  I thank Senators Levin, Stabenow, Warner and Webb for their work in 
connection with these nominations.
  It is unfortunate that the three nominees for the Western District of 
Michigan are not already on the bench helping to ease the backlog of 
cases in that district. All three were reported out of committee last 
fall, but were left pending on the Senate's Executive Calendar when 
some on the other side of the aisle blocked their nominations. All 
three are for vacancies that are judicial emergency vacancies--three 
emergencies in one Federal district.
  The Senators from Michigan had worked with the White House on the 
President's nomination of three nominees to fill those emergency 
vacancies.
  Working with then-Chairman Specter, the Democratic members of the 
committee cooperated to expedite their consideration and reported them 
to the Senate last year.
  But last year Republicans were objecting to Senate votes on some of 
President Bush's judicial nominees. According to press accounts, 
Senator Brownback had placed a hold on Judge Neff's nomination, 
apparently related to her attendance at a commitment ceremony held by 
some family friends several years ago in Massachusetts.
  The Michigan nominations were not returned to the Senate by the 
President at the beginning of this year. Instead, their renominations 
were inexplicably delayed for months.
  When they were renominated, Senator Brownback sought another hearing 
on the nomination of Judge Neff. As chairman, I honored his request. At 
that second hearing in May, Senator Brownback again questioned Judge 
Neff extensively about her attending the commitment ceremony of a 
family friend. I then placed the nomination on our agenda and the 
Judiciary Committee reported it favorably for a second time.
  It is time to act on the group of Michigan nominations at long last. 
There is a dire situation in the Western District of Michigan. Judge 
Robert Holmes Bell, Chief Judge of the Western District, wrote to us 
about the situation in that district, where several judges on senior 
status--one over 90 years old--continue to carry heavy caseloads to 
ensure that justice is administered in that district. Judge Bell is the 
only active judge.
  The four nominations before us will bring this year's judicial 
confirmations total to 25. It is our first day back after the Fourth of 
July recess, and we have already confirmed one and a half times as many 
judges as were confirmed during the entire 1996 session when President 
Clinton's nominees were being reviewed by a Republican Senate majority. 
That was the session in which not a single circuit court nominee was 
confirmed.
  We have already confirmed three circuit court judges in the early 
months of this session. As I have previously noted, that also puts us 
well ahead of the pace established by the Republican majority in 1999 
when to this date not a single circuit court nomination had yet been 
confirmed. This also exceeds the total of 22 judges confirmed in all of 
2005.
  With these confirmations, the Senate will have confirmed 125 judges 
while I have served as Judiciary chairman. During the more than 6 years 
of the Bush Presidency, more circuit court judges, more district court 
judges, and more total judges have been confirmed while I served as 
Judiciary chairman than during the tenures of either of the two 
Republican chairmen working with Republican Senate majorities.
  I have listed another four judicial nominations on the agenda for our 
business meeting later this week and will be noticing another hearing 
on judicial nominations on July 19. I do not

[[Page 18103]]

intend to follow the Republican example and pocket filibuster more than 
60 of this President's nominees as they did President Clinton's 
nominees.
  The Administrative Office of the U.S. Courts lists 47 judicial 
vacancies after these nominations are confirmed, yet the President has 
sent us only 22 nominations for these vacancies. Twenty-five of these 
vacancies--over-half have no nominee. Of the 13 vacancies deemed by the 
Administrative Office to be judicial emergencies, the President has yet 
to send us nominees for 8 of them. That means over half of the judicial 
emergency vacancies are without a nominee.
  Of the 15 circuit court vacancies, two-thirds are without a nominee. 
If the President had worked with the Senators from Rhode Island, New 
Jersey, Maryland, California, Michigan, and the other States with the 
remaining circuit vacancies, we could be in position to make even more 
progress.
  As it is, we have cut the circuit vacancies nearly in half, from 26 
to 15. Contrast that with the way the Republican-led Senate's lack of 
action on President Clinton's moderate and qualified nominees resulted 
in circuit court vacancies increasing from 17 to 26 and beyond. During 
most of the Clinton years, the Republican-led Senate engaged in 
strenuous efforts to keep circuit judgeships vacant in anticipation of 
a Republican President. To a great extent they succeeded.
  The Judiciary Committee has been working hard to make progress on 
those nominations the President has sent to us. Of course, when he 
sends us well-qualified, consensus nominees with the support of his 
home-State Senators like those before us today, we can have success.
  Judge O'Grady is a Magistrate Judge in the U.S. District Court for 
the Eastern District of Virginia, where he has sat since 2003. 
Previously, he was a partner in the intellectual property law firm of 
Finnegan, Henderson, Farabow, Garrett, & Dunner, LLP, an assistant U.S. 
attorney in the Eastern District of Virginia, an assistant commonwealth 
attorney for the Commonwealth of Virginia, and a sole practitioner.
  Judge Neff has been a judge on the Michigan Court of Appeals, 
Michigan's intermediate appeals court, since January 1989. Previously, 
she worked in private practice for several law firms and served as an 
assistant U.S. attorney for the Western District of Michigan, a 
commissioner for the Michigan Supreme Court, and an assistant city 
attorney for the city of Grand Rapids.
  Judge Maloney has been a circuit judge on the Berrien County Trial 
Court in Saint Joseph, MI, since 1996 and previously served as a 
district judge in the same county. Before taking the bench, he served 
as special assistant to the director at the Michigan Department of 
Corrections, a deputy assistant attorney general in the criminal 
division of the U.S. Department of Justice, and a prosecuting attorney 
at the Berrien County Prosecutor's Office in Michigan.
  Robert James Jonker is a partner at the Grand Rapids, MI, law firm of 
Warner Norcross & Judd LLP where he has worked since serving as a law 
clerk to Judge John F. Feikens in the U.S. District Court for the 
Eastern District of Michigan from 1995-1997. I congratulate Judge 
O'Grady, Judge Neff, Judge Maloney, Mr. Jonker, and their families, on 
their confirmations today.


                          Executive Privilege

  Mr. LEAHY. Mr. President, I have a very serious matter that I will 
discuss at this time in my capacity as chairman of the Judiciary 
Committee. The Presiding Officer is one of the most distinguished 
members of the Judiciary Committee.
  Today, House Judiciary Committee Chairman Conyers and I received 
another letter from White House Counsel Fred Fielding responding to 
duly authorized subpoenas with a blanket assertion of executive 
privilege.
  I had hoped that the Judiciary Committee subpoenas would be met with 
compliance, not with confrontation. But instead they have been met, yet 
again, with Nixonian stonewalling that shows this White House's disdain 
for our system of checks and balances. This is more stonewalling for a 
White House that believes it can unilaterally control the other coequal 
branches of Government. It raises this question: What is the White 
House trying to hide by refusing to turn over this evidence?
  From the outset of this scandal, the President spoke about the firing 
of U.S. attorneys as if it were a matter handled and decided by the 
Attorney General, and something Mr. Gonzales would have to explain to 
Congress and the American people. The President was hands off and arms' 
length. He had to ask others whether anything was improperly done and 
relied on a review by White House lawyers for his assertion that 
nothing improper was done.
  This President and the Attorney General have both from time to time 
expressed confidence that the Congress would get to the bottom of this 
as if they themselves had no idea what had transpired.
  Are we now to understand from the White House claims of executive 
privilege that, contrary to what the President said, these were 
decisions made by the President? Is he taking responsibility for this 
scandal, for the firing of such well-regarded and well-performing U.S. 
attorneys?
  When we had the Attorney General testify under oath, he didn't know 
who added U.S. attorneys to the list of those to be fired, or the 
reasons they were added. Somehow they mysteriously arrived on the 
Attorney General's list. You know, it occurred to me when I flew down 
from Vermont today and I was looking in the paper, the latest Harry 
Potter movie is coming out. These mysterious lists sound like something 
would you see in that movie, not in the White House or the Attorney 
General's Office.
  Indeed, the bottom line of the sworn testimony from the Attorney 
General, the Deputy Attorney General, the Attorney General's former 
Chief of Staff, the White House liaison, and other senior Justice 
Department officials was that while the President was not involved in 
the decisionmaking that led to the unprecedented firings of several 
well-performing prosecutors, these people were not responsible either. 
So I ask, who made these decisions? Was it the political operatives at 
the White House who set out to severely damage the careers of well-
performing U.S. attorneys?
  Even this White House cannot dispute the evidence we have gathered to 
date showing that White House officials were heavily involved in these 
firings--not only heavily involved in these firings and in the Justice 
Department's responses to inquiries that I made, the distinguished 
Presiding Officer made, and others, Republicans and Democrats alike 
made, about them.
  The White House continues to try to have it both ways, but at the end 
of the day it cannot. The White House cannot block Congress from 
obtaining the relevant evidence and credibly assert that nothing 
improper occurred. They are just saying: Trust us, we did nothing 
wrong.
  Trust us? With the revelations that come out almost every single day 
of things that tell the American people they should not trust them. 
What is the White House hiding? Was the President involved, were his 
earlier statements to the American people therefore misleading and 
inaccurate? Is this an effort by the White House legal team to protect 
the White House political operatives whose partisan machinations have 
been discovered in a new set of White House horrors?
  Several weeks ago, after Mr. Fielding first conveyed the President's 
blank executive claim--and I have yet to hear directly from the 
President--Chairman Conyers and I sent a letter to the White House 
asking for a specific factual basis regarding each document withheld 
and the normal privilege log that would be shown at the time. I asked 
the White House to provide this information so that it could 
substantiate its claim.
  For months--and I have not done so precipitously but carefully--I 
have been giving the White House every opportunity to provide 
voluntarily the information we have sought. For months the only answer 
we have received is the same unacceptable ``take it or leave it'' 
offer. I have tried to give

[[Page 18104]]

the White House every opportunity to explain its claims. A serious 
assertion of privilege--one they honestly believed in--would include an 
effort to demonstrate to the committee which documents and which parts 
of those documents are covered by any privilege that is asserted and 
why. But it is apparent this White House is contemptuous of the 
Congress and believes it doesn't have to explain itself to anyone--not 
to the people's Representatives in Congress, but worse yet not to the 
American people.
  The White House's refusal to provide a listing of those documents on 
which it asserts privilege, and a specific factual and legal basis for 
the assertion of executive privilege claims, raises even more 
questions. What is the White House so intent on hiding? What is it they 
are so afraid of becoming public that they cannot even identify the 
documents or the dates, authors, and recipients? Would we see the early 
and consistent involvement of the White House political operatives in 
what should be independent and neutral law enforcement decisions? Would 
we see early and consistent involvement of White House political 
operatives who are trying to manipulate law enforcement?
  Nor is the White House content with blanket assertions of privilege 
regarding matters in its control. It has now reached outside the White 
House to direct the Republican National Committee not to provide 
information it has to Congress and has today instructed a former White 
House official, Sara Taylor, not to cooperate with the investigation by 
testifying to the best of her knowledge.
  Mr. President, let me explain our attempts to procure the e-mails 
that White House officials sent using Republican National Committee 
accounts. At first, they gave the impression that we would be happy to 
give you those 60,000 of her e-mails, or 130,000 of Karl Rove's but, of 
course, they were all erased, so we cannot give them to you. When I and 
others suggested that you cannot erase e-mails like that and that they 
are in a backup system somewhere else, they sent somebody who works in 
the White House Press Secretary's Office out to tell the American 
people that this is a ridiculous claim and that we now have Senators 
pretending to be computer experts. Actually, no, that is an answer any 
12-year-old could have given. What happened? Suddenly, they found, yes, 
they do have the e-mails. And as we had said, and as any 12-year-old 
would have said, they weren't erased.
  Ms. Taylor is scheduled to testify on Wednesday to comply with a 
subpoena authorized by the committee. It is unfortunate that the White 
House is trying to interfere with Ms. Taylor's testimony before the 
Senate, and they are trying to interfere with Congress's responsibility 
to get to the truth behind the unprecedented firings of several U.S. 
attorneys.
  Let's review the facts. Sometimes it is good to get outside the 
hyperbole of politics and just talk about the facts. There is clear 
evidence that Sara Taylor is one of several White House officials who 
played a key role in these firings and the administration's response to 
cover up the reasons behind them when questions first arose. The 
question I have is this: Why were they so eager to cover up what they 
did?
  There is also clear evidence that Ms. Taylor was part of 66,000 RNC 
e-mails being kept from the public as part of a White House effort to 
avoid oversight by ignoring the laws meant to ensure a public record of 
official Government business. Basically, they are saying the law 
applies to everybody else, but they are above the law.
  I am willing to discuss the matter in good faith with the White 
House. I have been trying to engage the White House for months in 
discussions to come to some sort of accommodation. I hope we can do 
that. I am reluctant to agree to anything, though, that prevents 
Congress from doing our oversight job effectively. I have been here 
with six administrations, with Republicans and Democrats alike, and we 
found ways to work with Congress. Ultimately, even the Nixon 
administration--the administration that was here before I arrived--
found ways.
  This administration, unlike all those others, wants to obstruct and 
obfuscate. We should not lose sight of the fact that this is a serious 
matter. This is about improper political influence on our justice 
system. It is about the White House manipulating the Justice Department 
into its own political arm. It is about manipulating our justice system 
to pursue a partisan political agenda. It is about pressuring 
prosecutors to bring cases of voter fraud to try to influence 
elections--of sending a partisan operative like Bradley Schlozman to 
Missouri to file charges on the eve of an election, in direct violation 
of their own Justice Department guidelines.
  It is about high-ranking officials misleading Congress and misleading 
the American people about their political manipulation of justice. It 
is about the unprecedented and improper reach of politics into the 
Department's professional ranks, such as the admission by the 
Department's White House Liaison, Monica Goodling, that she improperly 
screened career employees for political loyalty and wielded undue 
political influence over key law enforcement decisions and policies.
  It is about political operatives pressuring prosecutors to bring 
partisan cases and seeking retribution against those who refused to 
bend to their political will, such as the example of New Mexico's U.S. 
attorney, David Iglesias, who was fired a few weeks after Karl Rove 
complained to the Attorney General about the lack of purported ``voter 
fraud'' enforcement cases in Mr. Iglesias's jurisdiction.
  Along the way, this subversion of the justice system has included 
lying, misleading, stonewalling, and ignoring the Congress in our 
attempts to find out what happened. We know White House officials are 
involved, but it is difficult to get the facts when the White House, 
even as of today, refuses to provide even a single witness or a single 
document.
  This administration has instituted an abusive policy of secrecy aimed 
at protecting themselves from embarrassment and accountability. 
Apparently, the President and Vice President think they are above the 
law. In America, nobody is above the law, not even George Bush or Dick 
Cheney.
  The President has sought to make the Vice President's former Chief of 
Staff above the law when he granted him a form of amnesty last week. 
The President chose to override a prosecution, jury trial, conviction, 
and prison sentence and to excuse his lying to Federal investigators 
and a grand jury and his perjury, and to reward his silence by giving 
Mr. Libby what commentators have called a ``get out of jail free'' 
card.
  The lack of accountability for anyone in the Bush administration has 
reached new heights--or lows. It is not often that the New York Times 
and the Washington Times editorial boards agree, but they did about 
this President's abrupt commutation of Mr. Libby's 30-month prison term 
for perjury and obstruction of justice. The Washington Times opined 
that President Bush's action is ``neither wise nor just,'' and it 
continued in its Independence Day editorial by saying:

       Perjury is a serious crime. . . . The integrity of the 
     judicial process depends on fact-finding and truth-telling. A 
     jury found Libby guilty of not only perjury but also 
     obstruction of justice and lying to a grand jury.

  I would add that the widely respected trial judge, who was nominated 
by President Bush and confirmed by the Senate at the time I chaired the 
committee in 2001, imposed a reasonable sentence which was actually at 
the lower end of what the prosecutor recommended, and the DC Circuit 
refused to stay the sentence pending appeal in accordance with the law.
  The New York Times in a July 3 editorial entitled ``Soft on Crime'' 
called the President's action a ``baldly political act,'' noting that 
``[a]s president, he has repeatedly put himself and those on his team, 
especially Mr. Cheney, above the law.'' They noted that the President 
``sounded like a man worried about what a former loyalist might say 
when actually staring into a prison cell.''
  That Presidential act sent the message that silence, bad memory, and 
abject loyalty would be rewarded, just as

[[Page 18105]]

the mass firings of U.S. attorneys sent the message that all remaining 
Federal prosecutors and law enforcement had better knuckle under to the 
political agenda of the administration.
  Untoward White House interference with Federal law enforcement is a 
serious matter. It corrupts Federal law enforcement, threatens our 
elections, and has seriously undercut the American people's confidence 
in the independence and evenhandedness of law enforcement.
  Despite the attitude of the current administration, our Constitution 
does not include the phrase ``executive privilege'' or ``unitary 
executive.'' What the U.S. Constitution does provide in the oath of 
office is that the President has to swear to ``faithfully execute the 
Office of President of the United States'' and ``preserve, protect and 
defend the Constitution of the United States.'' His essential duties 
require him to ``take care that the Laws be faithfully executed.'' I 
have grave concern with regard to how this administration is fulfilling 
these sworn and essential duties. The political intrusion into the law 
enforcement functions of the Government through the scheme to fire and 
replace our U.S. attorneys is a key part of that concern.
  Congress will continue to pursue the truth behind this matter not 
only because it is our constitutional responsibility but because it is 
the right thing to do.
  I hope the White House stops the stonewalling. I hope they accept my 
offer to negotiate a workable solution to the committee's oversight 
needs so we can effectively get to the bottom of what was done wrong 
and what has gone wrong.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Stabenow). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, the existing order is to have 
consideration of four nominees for the U.S. district court. I urge my 
colleagues to confirm all of them.
  The first is Liam O'Grady for the Eastern District of Virginia. I am 
pleased to see that there are substantial Pennsylvania connections with 
these nominees. Liam O'Grady received a bachelor's degree from Franklin 
& Marshall College in Lancaster. I am interested to see his 
diversification of employment. He was a pension examiner for the United 
Mine Workers of America, Welfare and Retirement Fund, as well as other 
outstanding credentials, and was rated unanimously ``well qualified'' 
by the American Bar Association.
  I ask unanimous consent to have the full records of these nominees 
printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. Madam President, I think it is unnecessary to speak at 
length about any of these nominees because they all passed unanimously 
from the Judiciary Committee, and it would be my expectation, based on 
prior practices, that they would all be confirmed. I would be surprised 
if there were any negative votes at all. It may be even possible to 
abbreviate the proceedings today with some voice votes. That is the 
decision for the distinguished chairman. We will come to that later.
  Mr. LEAHY. I am sorry, what was the question?
  Mr. SPECTER. I was commenting that all were passed out unanimously by 
the Judiciary Committee. I said it was my expectation from prior 
practice that they would probably be confirmed unanimously. I would be 
surprised if we have a dissenting vote among the four. And I said I am 
not going to speak long. I am putting their records into the Record. I 
said it might even be possible to abbreviate the rollcalls. That is the 
chairman's call.
  Mr. LEAHY. Madam President, I will be very happy to do that. I think 
there are a lot of people who have stacks of paper since we have been 
gone who would probably be happy to have one or two rollcalls.
  Mr. SPECTER. I am sorry, I didn't understand.
  Mr. LEAHY. Some may be happy to have one or two rollcall votes and 
get out of here.
  Mr. SPECTER. In accordance with the practice Chairman Leahy and I 
adopted in the good old days.
  The second nominee, Janet Neff, in the court of the Western District 
of Michigan, was born in Wilkinsburg, PA, is a University of Pittsburgh 
graduate, and is rated ``majority qualified'' and others rated ``well 
qualified.'' She has an outstanding academic and professional record.
  The third nominee is Paul Lewis Maloney, again for the Western 
District of Michigan, again a Pennsylvania connection. He received a 
bachelor's degree from Lehigh University. His ABA rating was 
unanimously ``well qualified.''
  The fourth nominee is Robert James Jonker, again from the Western 
District of Michigan. I am not distressed, but I note no Pennsylvania 
connection here. But I know the distinguished presiding Senator from 
Michigan will be relieved to have these three nominees confirmed 
because there has been a judicial emergency, and on occasion the 
Congressman from the area has been on the Senate floor urging us to 
confirm these nominees. I think we will get there today.

                               Exhibit 1

                              Liam O'Grady


   United States District Judge for the Eastern District of Virginia

     Birth
       September 24, 1950; Newark, New Jersey.
     Legal Residence
       Virginia.
     Education
       B.A., Franklin & Marshall College, 1973.
       J.D., George Mason University School of Law, 1977.
     Employment
       Pension Examiner, United Mine Workers of America, Welfare & 
     Retirement Fund, 1973-1975.
       Attorney Advisor and Law Clerk, Administrative Law Judge 
     George Koutras, Departments of Interior and Labor, 1976-1979.
       Sole Practitioner, Private Practice, 1979-1982.
       Assistant Commonwealth's Attorney, Office of the Virginia 
     Commonwealth's Attorney, 1982-1986.
       Assistant U.S. Attorney, Department of Justice, 1986-1992--
     Chief of the Narcotics Section (four years); Acting Chief of 
     the Criminal Division (one year).
       Adjunct Professor, George Washington University, Columbia 
     Graduate School for Forensic Sciences, 1986-1994.
       Partner, Finnegan, Henderson, Farabow, Garrett, & Dunner, 
     LLP, 1992-2003.
       U.S. Magistrate Judge, U.S. District Court, Eastern 
     District of Virginia, 2003-Present.
     Selected Activities
       Member, Virginia State Bar.
       Member, American Bar Association.
       Member, George Mason Inns of Court.
       Member, American Intellectual Property Law Association.
       Member, Arlington County Bar Association.
       Coach, McLean Youth Soccer.
     ABA Rating
       Unanimous ``well qualified.''

 Liam O'Grady--U.S. District Judge for the Eastern District of Virginia

       Magistrate Judge Liam O'Grady was initially nominated to be 
     a U.S. District Judge for the Eastern District of Virginia on 
     August 2, 2006. No further action was taken on his nomination 
     in the 109th Congress. Judge O'Grady was re-nominated on 
     January 9, 2007. He received a committee hearing on May 10, 
     2007, and was favorably reported on May 24, 2007.
       He comes before the committee with an impressive resume.
       He received a B.A. from Franklin & Marshall College in 1973 
     and a J.D. from George Mason University School of Law in 
     1977.
       After graduating from law school, Judge O'Grady briefly 
     worked as an attorney advisor to Administrative Law Judge 
     George Koutras in the Departments of Interior and Labor.
       In 1979, Judge O'Grady entered private practice as a sole 
     practitioner. His focus was on domestic relations cases, real 
     estate closings, bankruptcy proceedings, criminal cases, and 
     general civil disputes.
       After three years of private practice, Judge O'Grady became 
     an Assistant Commonwealth's Attorney for the Commonwealth of 
     Virginia. He was the liaison to robbery homicide squad at the 
     police department, and handled many of the homicide cases.

[[Page 18106]]

       From 1986 to 1992, Judge O'Grady served as an Assistant 
     United States Attorney for the Eastern District of Virginia. 
     In that capacity, he focused on drug conspiracies, drug 
     related homicides, and organized crime. For a one-year stint, 
     as Acting Chief of the Criminal Division, he supervised the 
     criminal cases for the whole district.
       Meanwhile, from 1986 to 1994, Judge O'Grady was an adjunct 
     professor at George Washington University's forensic sciences 
     graduate school, teaching courses in criminal law, evidence, 
     and trial advocacy.
       In 1992, Judge O'Grady returned to private practice as a 
     partner for Finnegan, Henderson, Farabow, Garrett & Dunner 
     LLP. As chief litigator, he handled patent, trademark, 
     copyright, and trade secret cases for Fortune 500 clients in 
     courts around the country and the world.
       In 2003, Judge O'Grady became a Magistrate Judge for the 
     United States District Court for the Eastern District of 
     Virginia.
       The ABA has unanimously rated Judge O'Grady ``well 
     qualified.''
                                  ____


                             Janet T. Neff


   United States District Judge for the Western District of Michigan

     Birth
       April 8, 1945, Wilkinsburg, Pennsylvania.
     Legal residence
       Michigan.
     Education
       B.A., cum laude, University of Pittsburgh, 1967.
       Omicron Delta Epsilon, National Economics Honor Society.
       J.D., Wayne State University Law School, 1970.
     Employment
       Tax Examiner, Internal Revenue Service, 1970.
       Research Attorney, Michigan Court of Appeals, 1970-1971.
       Assistant City Attorney, City of Grand Rapids, 1971-1973.
       Associate/Partner, VanderVeen, Freihofer & Cook, 1973-1978.
       Commissioner, Michigan Supreme Court, 1978-1980.
       Assistant United States Attorney, Western District of 
     Michigan, 1980.
       Associate, William G. Reamon, P.C., 1980-1988.
       Judge, Michigan Court of Appeals, 1989-Present.
     Selected Activities
       Member, U.S. District Court Professional Review Committee.
       Member, Michigan Bar Association.
       Member, Grand Rapids Bar Association.
       Member, Michigan Trial Lawyers Association.
       Member, Women Lawyers Association of Michigan.
       Member, Association of Trial Lawyers of America.
       Member, American Bar Association.
     ABA Rating
       Majority ``qualified''/minority ``well qualified.''

 Janet T. Neff--U.S District Judge for the Western District of Michigan

       Janet T. Neff was nominated to be a U.S. District Judge for 
     the Western District of Michigan on June 28, 2006. A hearing 
     was held on her nomination on September 19, 2006, and it was 
     reported out of Committee on September 29 by voice vote. The 
     Senate was unable to act on her nomination before the end of 
     the 109th Congress.
       President Bush re-nominated Judge Neff on March 19, 2007. A 
     second hearing was held on her nomination on May 10, 2007, 
     and she was favorably reported on May 24, 2007.
       She comes before this Committee with a distinguished record 
     of public service.
       Judge Neff received a B.A., cum laude, from the University 
     of Pittsburgh in 1967 and a J.D. from Wayne State University 
     Law School in 1970.
       Following law school, Judge Neff worked briefly as an 
     estate and gift tax examiner for the Internal Revenue Service 
     (IRS). This position involved review and audit of Federal 
     estate and gift tax returns.
       In 1970, Judge Neff accepted a position as a research 
     attorney for the Michigan Court of Appeals, where she 
     reviewed briefs and lower court records.
       Beginning in 1971, Judge Neff served as an Assistant City 
     Attorney for the City of Grand Rapids. As Assistant City 
     Attorney, she prosecuted offenses ranging from drunk driving 
     to assaults.
       Judge Neff entered private practice in 1973, when she 
     worked as an associate and then a partner at Vander Veen, 
     Freifoher & Cook. She had a broad and varied practice that 
     included insurance, products liability, criminal defense, 
     domestic relations, commercial litigation, bankruptcies, and 
     the representation of numerous municipal governments.
       In 1978, Judge Neff became a Commissioner of the Michigan 
     Supreme Court. In that capacity she worked as a staff 
     attorney to the court, conducting research and reviewing 
     applications for leave to appeal, motions, and other matters.
       She served as an Assistant U.S. Attorney for the Western 
     District of Michigan in 1980.
       From 1980 until 1988, Judge Neff was as an associate with 
     William G. Reamon, P.C., where she handled personal injury 
     cases.
       In 1988, Judge Neff was elected as a Judge of the Michigan 
     Court of Appeals where she continues to serve today.
       A substantial majority of the American Bar Association 
     Standing Committee rated Judge Neff ``qualified,'' and a 
     minority rated her ``well qualified'' for service on the 
     Federal bench.
       The seat to which Judge Neff is nominated has been 
     designated a ``judicial emergency'' by the nonpartisan 
     Administrative Office of the Courts.
       The Chief Judge of the U.S. District Court for the Western 
     District of Michigan, Judge Robert Bell, has written the 
     Committee to impress upon us the need to provide his court 
     with another judge. According to the Chief Judge, ``with the 
     present three vacancies [he] is the sole active judge.'' The 
     Western District of Michigan has the weightiest docket per 
     authorized judgeship in the Sixth Circuit.
                                  ____


                           Paul Lewis Maloney


   United States District Judge for the Western District of Michigan

     Birth
       December 15, 1949; Cleveland, Ohio.
     Legal Residence
       Michigan.
     Education
       B.A., Lehigh University, 1972.
       J.D., University of Detroit School of Law, 1975.
     Employment
       Assistant Prosecutor, Berrien County Prosecutor's Office, 
     1975-1981; Prosecuting Attorney, 1981-1989.
       Deputy Assistant Attorney General, Criminal Division, 
     United States Department of Justice, 1989-1993.
       Special Assistant to the Director, State of Michigan, 
     Department of Corrections, 1993-1995.
       District Judge, Berrien County, Michigan, 1995-1996.
       Circuit Judge, Berrien County, Michigan, 1996-Present.
     Selected Activities
       Member, Michigan Prosecuting Attorneys Association.
       Member, Michigan District Judges Association.
       Member, Michigan Judges Association (Board of Directors 
     Member for one year).
       Member, Michigan Bar Association.
       Member, American Bar Association.
       Member, Berrien County Bar Association.
       Member, Knights of Columbus.
       President, Catholic Community Education Commission.
     ABA Rating
       Unanimous ``well qualified''.
                                  ____


  Paul Lewis Maloney--U.S. District Judge for the Western District of 
                                Michigan

       Paul Lewis Maloney was initially nominated to be a U.S. 
     District Court Judge for the Western District of Michigan on 
     June 28, 2006. A hearing was held on his nomination on 
     September 19, 2006, and he was reported out favorably on 
     September 29, 2006, by a voice vote. No further action was 
     taken on the nomination before the 109th Congress adjourned.
       Judge Maloney was re-nominated by the President on March 
     19, 2007, and reported favorably by the Committee on May 24, 
     2007.
       Judge Maloney has an impressive resume reflecting a 
     devotion to public service.
       He received a B.A. from Lehigh University in 1972 and a 
     J.D. from the University of Detroit School of Law in 1975.
       Following law school, Judge Maloney began working as an 
     assistant prosecutor for the Berrien County Prosecutor's 
     Office. In 1981, he was appointed the county's Prosecuting 
     Attorney and was re-elected in 1982, 1984, and 1988.
       In 1989, Judge Maloney left the Berrien County Prosecutor's 
     Office to serve as a Deputy Assistant Attorney General for 
     the Criminal Division of the United States Department of 
     Justice.
       Following his work at the Department of Justice, Judge 
     Maloney returned to Michigan to serve as Special Assistant to 
     the Director of Michigan's Department of Corrections.
       In 1995, Judge Maloney was appointed District Judge for 
     Berrien County. He held this position for a year, before he 
     was appointed to be Circuit Judge of Berrien County, where he 
     continues to serve.
       The American Bar Association rated Judge Maloney 
     unanimously well-qualified, its highest rating.
       This vacancy has been designated a ``judicial emergency,'' 
     and, indeed, the Western District of Michigan is in dire need 
     of judges. Currently, there is only one active judge--Chief 
     Judge Bell--out of the four judgeships authorized for the 
     district. Chief Judge Bell wrote letters on December 28, 
     2006, and April 18, 2007, explaining that he and the senior 
     judges are ``exhausted.''
                                  ____


                          Robert James Jonker


   united states district court for the western district of michigan

     Birth
       March 9, 1960, Holland, Michigan.
     Legal Residence
       Michigan.

[[Page 18107]]


     Education
       B.A., with honors, Calvin College, 1982.
       J.D., summa cum laude, University of Michigan Law School, 
     1985; Order of the Coif; Robert S. Feldman Labor Law Award.
     Employment
       Law Clerk, Honorable John F. Feikens, U.S. District Court 
     for the Eastern District of Michigan, 1985-1987.
       Associate, Warner Norcross & Judd LLP, 1987-1993; Partner, 
     1994-Present.
     Selected Activities
       Fellow, Michigan State Bar Foundation.
       Member, Federal Bar Association, Western District Chapter; 
     President-Elect, October 2006; Vice President--Operations, 2 
     years; Treasurer, 2 years; Executive Board Member, 1999-2006.
       Chairperson, Judicial Code Committee of the Christian 
     Reformed Church.
       Listed in Best Lawyers in America for Business Litigation.
       Member, Grand Rapids Bar Association.
       Member, Michigan Bar Association.
       Member, American Bar Association.
     ABA Rating
       Unanimous ``well qualified''.

 Robert James Jonker--U.S. District Judge for the Western District of 
                                Michigan

       Robert James Jonker was nominated to be a United States 
     District Judge on June 29, 2006. A hearing was held on his 
     nomination on September 19, 2006. His nomination was 
     favorably reported out of the Judiciary Committee on 
     September 29, 2006; however, the Senate failed to act on his 
     nomination prior to the adjournment of the 109th Congress. 
     President Bush renominated Mr. Jonker on March 19, 2007, and 
     the committee favorably reported him on June 7, 2007.
       Mr. Jonker received his B.A., with honors, from Calvin 
     College in 1982 and his J.D., summa cum laude, from the 
     University of Michigan Law School in 1985, where he was 
     elected Order of the Coif.
       Upon graduation from law school, Mr. Jonker served as a law 
     clerk to the Honorable John F. Feikens of the U.S. District 
     Court for the Eastern District of Michigan. His clerkship 
     lasted from 1985 to 1987.
       Following his clerkship, Mr. Jonker accepted an associate 
     position with the Michigan law firm, Warner Norcross & Judd, 
     where he focuses on complex business and environmental 
     litigation.
       In 1994, Warner Norcross made him a partner, a position he 
     holds today.
       For 6 years, Mr. Jonker has served as chair of the 
     professional staff committee of Warner Norcross, which is 
     responsible for the recruitment, development, retention and 
     review of associate attorneys.
       Mr. Jonker was recognized in the Best Lawyers in America 
     for his business litigation expertise.
       The American Bar Association has unanimously rated Mr. 
     Jonker ``Well Qualified'' to serve as a Federal district 
     court judge.
       This vacancy has been designated a ``judicial emergency.'' 
     In fact, the Western District of Michigan has the highest 
     weighted case filings in the Sixth Circuit. Currently, there 
     is only one active judge--Chief Judge Bell--out of the four 
     judgeships authorized for the district. Chief Judge Bell 
     wrote letters on December 28, 2006, and again on April 18, 
     2007, explaining the dire need for judges in the Western 
     District and that he and the senior judges are ``exhausted.''


                          Executive Privilege

  Mr. SPECTER. Madam President, I wish to make a comment or two on the 
subject broached by the distinguished chairman of the committee on the 
current issue with the challenge on executive privilege where letters 
were received today from the White House Counsel indicating that 
executive privilege would be asserted. It is my hope that we will yet 
be able to resolve this controversy because of the importance of 
getting the information which the Judiciary Committee has sought in its 
oversight capacity.
  We are dealing with a Department of Justice which I think, fairly 
stated, is dysfunctional. We have seen the Attorney General of the 
United States come before the Judiciary Committee and say he was not 
involved in discussions, not involved in deliberations, and then was 
contradicted by three of his top deputies, contradicted by documentary 
evidence in the e-mails.
  I think it is generally conceded that the President of the United 
States has the authority to remove U.S. attorneys for no reason, just 
as President Clinton did when he took office in 1993, but you cannot 
remove a U.S. attorney for a bad reason.
  There have been questions raised as to the request for the 
resignation from the U.S. attorney from San Diego, that she perhaps was 
hot on the trail of confederates of former Congressman Duke Cunningham, 
who is serving 8 years in jail. I do not know whether that is true. We 
have yet not had an explanation from the Department of Justice as to 
why her resignation was requested.
  Similarly, a cloud has existed over the reasons for the requested 
resignation for the U.S. attorney from New Mexico, with some 
suggestions that he was asked to resign because he would not bring 
prosecutions for vote fraud when he thought there was no basis, and 
some of us thought there was a basis. That has not yet been explained, 
and the request for resignations generally has not been explained.
  The Department of Justice is second only to the Department of Defense 
in importance to the United States. The Department of Justice has the 
responsibility for investigating terrorism, has the responsibility for 
investigating and prosecuting drug dealers in international cartels, 
the responsibility for investigating and prosecuting organized crime 
and violent crime. Yet it is pretty hard to make a more conclusive 
description than to say that the Department of Justice is 
dysfunctional, and the Attorney General insists on staying. I think, as 
to his own decision, it is a matter for him personally. I am not going 
to tell him what to do, nor am I going to make a recommendation to the 
President. Under separation of powers, it is the President's call. I 
don't want the President to tell me how to conduct my office in the 
Senate and I am not going to impede upon his executive authority, but I 
do believe that the inquiry which the Judiciary Committee is conducting 
might produce facts, if we get to the bottom of things, find out what 
they are, which would lead us to a new Attorney General, which I think 
is very much in the national interest.
  So I am hopeful we can yet avoid the confrontation. I think, 
candidly, there is a lot of posturing on both sides. I don't think it 
is realistic to seek a contempt citation brought against the 
President--that is newspaper talk--contempt citation brought against 
anybody in the executive branch, because there are arguments on both 
sides of this issue. I hope we can work it out so that we don't test 
the good faith of the executive branch in asserting privilege or the 
good faith of the legislative branch, the House of Representatives 
Judiciary Committee and the Senate Judiciary Committee, in seeking 
facts as part of our oversight responsibility. I hope we can work it 
out.
  I said a long while ago I would be prepared to accept the President's 
terms, with only one exception, and that was the importance of having a 
transcript as to what happens. The President made an offer on national 
television months ago saying he would allow White House personnel to 
come in and be informally questioned, but he did not want to have them 
under oath, and I would prefer to see them under oath. But I would give 
on that issue, because what they say is subject to a criminal 
prosecution with a 5-year penalty, the same as a perjury conviction for 
a false official statement under 18 U.S. Code 1001.
  Mr. LEAHY. Will the distinguished Senator yield for a question on 
that point?
  Mr. SPECTER. I yield.
  Mr. LEAHY. Would the distinguished Senator accept the offer of the 
President, if the rejoinder of the President was if we did it the way 
you describe--transcript, knowing that the criminal code applies--but 
once you have done that, there would be no followup? Even if you were 
to find something out during that meeting, there would be no followup; 
there would be a promise of no subpoenas, there would be no further 
proceedings?
  Mr. SPECTER. I will be pleased to respond to that relevant inquiry. 
Senator Leahy and I have discussed this before. We have discussed just 
about everything, because we do things on a joint basis--about as pure 
as Ivory Snow, 99.4. We have some disagreements, but we try to work 
them out on a bipartisan basis because we think it is the right way to 
approach it.
  The Senator from Vermont has said he thinks we would be barred from a 
followup, and I don't know whether that is part of the offer which the 
President has made, but we can get it clarified further. I do not think 
we

[[Page 18108]]

could make the commitment not to pursue a subpoena at a later time if 
we felt the informal interviews were insufficient. I don't think we can 
give up our authority in that process, and if we could, I wouldn't 
agree to that because I don't know what the informal interviews are 
going to produce and I would want to retain the right to exercise our 
right to subpoena. I would acknowledge at the same time that if we 
exercise our right to a subpoena that the President could exercise 
whatever rights he has on executive privilege. We would be back to 
square one, but at least we would have the advantage of the 
questioning. I know the questioning of Senator Leahy, a tough 
prosecutor from Burlington, VT. I have been there. And on an informal 
basis, Senator Leahy can extract quite a lot of information, and 
Chairman Conyers has the capacity to extract a lot of information. I 
might even have a relevant question or two to ask in the course of the 
proceedings.
  I think we can get a lot of information. I want to have that 
information. I want to find out as much as I could before I go to court 
on what is going to be a 2-year battle. It is going to outlast the 
President's term. It is going to outlast Attorney General Gonzales's 
tenure. I don't think the next President is going to reappoint Attorney 
General Gonzales.
  Let the record show there is a smile from staff in the back. It was 
intended to be not serious.
  Then the President doesn't want there to be these witnesses to go 
before both committees, and that is all right. I think Chairman Conyers 
and Chairman Leahy, in consultation with their ranking members, can 
work out a smaller group from the House and Senate, bipartisan, 
bicameral, sufficient to ask the questions. Then I would prefer that it 
be public. But as long as the transcript is published, I would give 
that up as well.
  I think it is so important that we get to the bottom of this 
important issue so we can have the Department of Justice function in 
the interest of the public that I am prepared to make those 
concessions, but I want a transcript. I would even be willing to give 
up the transcript if I am compelled to. I would take the interviews 
rather than have nothing. It would be at least something. But I would 
say to the President, the executive branch, that the transcript 
protects not only the questioners but the persons being questioned so 
there is no doubt as to what was said. I have been in closed-door 
meetings and had a number of participants walk out and, in perfectly 
good faith, have different versions as to what occurred. That happens 
when you are in a closed session. That happens when you are in a closed 
meeting, in perfectly good faith. That is why a transcript would 
protect Sara Taylor. It would protect Ms. Harriet Miers. It would 
protect the people who are being questioned.
  It is my hope we can yet work this out. Before taking the floor, I 
asked Senator Leahy if he would be willing to accept--he doesn't want 
to go as far as I do, and I can understand why he would insist on a 
transcript--I say I would like to have a transcript--but rather than 
have nothing, I would be willing to go into a closed session and have 
Senator Leahy question, Chairman Leahy question, Chairman Conyers 
question, and I question, some others question, to find out what we 
can. If at the end of that process we feel it is necessary to revert to 
subpoenas, we cannot, I think--but in any event should not--give up 
that power that resides with the legislative branch. I don't think we 
have the authority to give it up, but if we had the authority to give 
it up, I wouldn't want to give it up.
  But I want to pursue this matter and I want to get the information. 
When you talk about a criminal citation, a citation for criminal 
contempt, you are talking about a very serious matter. I have great 
empathy for the witnesses, Sara Taylor and Harriet Miers, who have been 
subjected to these subpoenas. If they assert executive privilege, and I 
agree that they are compelled to, I think once they are instructed by 
the President that the work they did for him is subject to his 
executive privilege, as he sees it, I think they have no choice. But 
when you bring a criminal contempt citation against Sara Taylor, people 
aren't going to understand she is an innocent pawn in the midst of this 
proceeding. If you bring a criminal contempt citation against anybody, 
there is an inference of some wrongdoing. You don't have a criminal 
charge customarily unless there is probable cause to believe a crime 
has been committed. That is when you have a warrant of arrest. That is 
when you have an indictment. Of course, a contempt citation is 
different, but if you call it a citation for criminal contempt, that 
has a tarring effect which is very serious and which is very profound.
  The U.S. attorney has to bring the charge, and the U.S. attorney has 
discretion. It is not an automatic matter that if the Congress refers 
the issue for a criminal contempt citation, it is mandated. U.S. 
attorneys have discretion as to what they do. They can bring it or not, 
depending upon their conclusions, upon their allocation of resources. 
And they can bring it on what they want to do. I could see how a U.S. 
attorney might not want to spend a whole lot of time on this matter. I 
can see how the taxpayers of the United States wouldn't like to spend a 
whole lot of time on this matter. But that is where we are heading if 
this posturing continues.
  Most importantly, we will not find out the underlying facts on the 
request for the resignations of these U.S. attorneys, and that is 
important to do so we can make a final evaluation by the Judiciary 
Committee as to what our conclusions are on this matter, and it would 
bear heavily on the continued service, the continued activity, by 
Attorney General Gonzales in holding that position.
  Madam President, I see the distinguished Senator from Kansas on the 
floor, and we have a short time left until the votes start at 5:30, but 
I yield to Senator Brownback.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. I wish to address the nomination of Janet Neff, who is 
the second nominee to come up. I can do so now or wait until after the 
first vote. I would defer to my colleague from Pennsylvania, if he 
wants to do it that way, or if there an order established on the vote 
or for debate on the second nomination.
  The PRESIDING OFFICER. There are 10 minutes provided to the Senator 
from Kansas after the first vote.
  Mr. BROWNBACK. I would be happy to take my time at that point in 
time, and I yield the floor.
  Mr. SPECTER. Madam President, I think there is going to be real 
interest on the part of the body in moving to the second vote, but 
there are 10 minutes for the Senator from Kansas after the first vote?
  The PRESIDING OFFICER. That is correct.
  Mr. BROWNBACK. I would be happy, if I could, Madam President, to take 
that time now. It won't be the full 10 minutes, but I wish to be able 
to discuss this. This is a matter of some concern. It has been pending 
for over a year, and I think it is meritorious of the nominee that it 
be brought forward.
  Mr. SPECTER. Madam President, I would ask the Senator from Kansas if 
he would be willing to take 5 minutes and delay it to that extent.
  Mr. BROWNBACK. Let us see if I can cover it, but if I can't, I will 
take some time before the second vote occurs. This has been pending for 
a year's period of time, and it is a significant matter.
  Mr. SPECTER. Madam President, I suggest we proceed to regular order 
then.
  The PRESIDING OFFICER. The Senator from Pennsylvania has time 
remaining, if you choose to yield that to the Senator or yield it back.
  Mr. SPECTER. How much time do I have remaining?
  The PRESIDING OFFICER. Nine minutes.
  Mr. SPECTER. Ten minutes. I yield to the Senator from Kansas on the 
understanding that will be the time he would have had otherwise, and 
that we

[[Page 18109]]

may proceed then to the sequence of votes.
  Mr. BROWNBACK. That is acceptable to me.
  The PRESIDING OFFICER. Without objection, it is so ordered. There are 
9 minutes remaining.
  Mr. BROWNBACK. I thank my colleague from Pennsylvania for 
accommodating me. Also, we wish to accommodate the other Members who 
will come in and I think will want to vote in a series of votes. I 
think that is perfectly fine.
  I wish to address the second nominee who will be up today, Janet T. 
Neff, for the District Court of the Western District of Michigan. The 
Presiding Officer has had an interest in this matter, as well as many 
others. Alexander Hamilton, in Federalist 78, said this about judges:

       The courts must declare the sense of the law; and if they 
     should be disposed to exercise WILL instead of JUDGMENT, the 
     consequence would equally be the substitution of their 
     pleasure to that of the legislative body. The observation, if 
     it proves anything, would prove that there ought to be no 
     judges distinct from that body.

  As we consider judicial nominees, we must consider whether they have 
the temperament, disposition, and ideology to interpret the law without 
regard to their own personal will. Because I am not convinced Judge 
Neff can do that, I cannot support her nomination.
  I wish to give the body some background on this matter. On June 28, 
2006, Judge Janet Neff was nominated by President Bush for a seat on 
the U.S. District Court for the Western District of Michigan. I wish to 
point out that she was part of an overall package of judges that was 
put forward and that the Michigan Senators were part of this discussion 
of her nomination. I do not know if she would have been the top pick of 
the President, but this is where we work together in this body, trying 
to get district judges the Senators from that State would support. 
These were supported by my two distinguished colleagues from Michigan. 
They were for Judge Neff.
  In September of 2006, following her hearing before the Senate 
Judiciary Committee, I became aware of Judge Neff's participation in a 
same-sex commitment or marriage ceremony in Massachusetts in 2002. This 
was reported in the New York Times.
  This concerned me. I placed a hold on Judge Neff's nomination in 
order to ascertain her role in the ceremony and her position on the 
constitutional validity of State bans on same-sex marriage. That is the 
core issue. No. 1, factually, what is it that took place that she 
participated in and, No. 2, what is her view of the constitutionality 
of same sex marriages? She would be going on to the Federal bench and 
this issue is likely to come in front of her.
  With regard to her involvement in the 2002 Massachusetts commitment 
ceremony, Judge Neff first responded to my concerns in a letter. She 
described the context of the ceremony itself but declined to answer 
questions regarding the legality of traditional marriage laws and 
initiatives. For that reason, I requested a second hearing with Judge 
Neff, which was held on May 10, 2007. My distinguished colleague from 
Vermont, the chairman of the committee, accommodated that hearing, and 
I appreciate that he did. At that hearing, Judge Neff testified she 
attended the commitment ceremony in Massachusetts as a close friend of 
one of the women involved. She stated she did not ``lead'' the 
proceeding, as the New York Times reported but, rather, participated as 
the homilist in the formal ceremony itself. Judge Neff testified that 
when she was asked to deliver the homily, she was pleased to do that.
  I spent much time considering whether her role as a homilist can 
fairly be described as leading the ceremony. It is my belief, whether 
she led the ceremony, she was an active participant and not a mere 
bystander.
  I wish to make clear my decision to oppose Judge Neff's nomination is 
not based merely on her involvement in this ceremony. Rather, her 
participation in this ceremony was simply the means I became aware of 
her approach to interpreting same-sex marriage laws, which are likely 
to come in front of her or have a good possibility of coming in front 
of her were she to be placed on the Federal bench.
  After discussing her role in the ceremony, I asked about her 
understanding of the law regarding same-sex marriage. When asked 
whether she feels the Constitution creates a right to same-sex 
marriage, Judge Neff said that is a ``continuing legal controversy.''
  When asked what her understanding is regarding Michigan statutory 
defense of marriage law, she said, ``I really don't have an 
understanding of it.''
  I would note for the record the State of Michigan passed a 
constitutional amendment by a vote of the people in 2004, 59 percent to 
41 percent, defining marriage as a union of a man and woman. But prior 
to that, in 1996, prior to this commitment ceremony in 2002, the 
legislature passed a State law defining marriage as between a man and a 
woman--clearly the law of Michigan.
  When asked her understanding regarding the law in Michigan, she said, 
``It's not entirely settled,'' even though the legislature had passed 
this in 1996 and by 2004 the people of Michigan had passed a definition 
of marriage.
  These answers of hers give me pause. Michigan's defense of marriage 
law, which has been on the books since 1996, says:

       Marriage is inherently a unique relationship between a man 
     and a woman. As a matter of public policy, this State has a 
     special interest in encouraging, supporting and protecting 
     that unique relationship in order to promote, among other 
     goals, the stability and welfare of society and its children. 
     A marriage contracted between individuals of the same sex is 
     invalid in this State.

  In addition to this statute, in 2004, the voters of Michigan passed a 
similar constitutional amendment defining marriage as a union of a man 
and a woman. In my opinion, the law of Michigan could not be more 
settled. The fact that Judge Neff feels the court has to weigh in 
before this issue is settled suggests a misunderstanding of the role of 
the judiciary. The people of Michigan have spoken, similar to those of 
27 other States. The amendment was a direct statement by the people of 
Michigan. Never is it more important to respect the will of the people 
than with issues of fundamental family values. Those issues must be 
decided by the people and not by Federal judges.
  Because I am not persuaded that Judge Neff will fairly uphold the law 
of the State of Michigan, I cannot support her nomination for a 
lifetime appointment to the bench.
  This has been a long and arduous journey and I recognize that for 
Judge Neff and I recognize that for the State of Michigan. I appreciate 
her willingness to come in front of us in the confirmation process. But 
I believe one of the most important aspects of my job as a Senator is 
the consideration of judges for the Federal bench. I take the Senate's 
role in the judicial nomination process very seriously. Individuals who 
are put in these positions assume lifetime appointments. We have a 
responsibility to ensure they understand their role and are firmly 
rooted in the principles of law and justice and what they will do in 
interpreting the law, not writing the law. They must be committed to 
following the letter of the law without imposing their own ideologies.
  Because I am not satisfied that Judge Neff can do this, on a very 
important, very controversial issue of our day, I cannot support her 
nomination. I have reached out. I met personally with Judge Neff. I met 
with the Senators from the State of Michigan. This has been a long 
ordeal.
  It is my considered judgment that she is not well-set on her role as 
a judge and more willing to consider her role as an activist in this 
particular issue.
  With that, I ask my colleagues and urge my colleagues to consider it 
and consider opposing and voting against Judge Neff's nomination.
  I thank my colleagues for accommodating me. I urge a ``no'' vote on 
Judge Neff, the second nominee. I yield the floor.
  The PRESIDING OFFICER. The distinguished Senator from Vermont.
  Mr. LEAHY. Madam President, does the Senator from Vermont have any 
time remaining?

[[Page 18110]]

  The PRESIDING OFFICER. The Senator does not have any further time on 
this nomination.
  Mr. LEAHY. Madam President, I ask unanimous consent that 3 minutes of 
the time I have reserved between this vote and the next vote be yielded 
to the distinguished senior Senator from Michigan at this point.
  The PRESIDING OFFICER. Is there objection?
  Mr. BROWNBACK. Madam Present, do I have any time remaining? The only 
reason I am asking this is--I think that is a fair request, but I would 
like to have a minute between the votes when our colleagues are 
gathered here. It seems it would be only fair.
  The PRESIDING OFFICER. The Senator from Kansas has 45 seconds 
remaining.
  Mr. BROWNBACK. If I could ask for a minute at that time, I would have 
no problem for 3 minutes for my colleague from Michigan. I think it is 
fair when our colleagues are present to hear some of this discussion.
  The PRESIDING OFFICER. Is there objection? The Senator from Michigan.
  Mr. LEVIN. I believe the Presiding Officer would also need some time 
between the votes, and I believe that is not impacted by the current 
request; is that correct?
  Mr. LEAHY. I will take it off my time between the votes. But there 
will be time for both the Senator from Pennsylvania and the Senator 
from Vermont between the votes.
  Mr. SPECTER. Is the Senator from Kansas asking for 1 minute?
  Mr. BROWNBACK. I am.
  Mr. LEVIN. Between the votes or no?
  Mr. BROWNBACK. Between the votes. That is when your time would occur.
  Mr. LEAHY. I have no objection to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, before the Senator from Michigan speaks, 
the first pending is who?
  The PRESIDING OFFICER. O'Grady is the next.
  Mr. LEAHY. Madam President, I ask it be in order to ask for the yeas 
and nays on both the O'Grady and the Neff nominations at this point.
  The PRESIDING OFFICER. Is there objection to the request? Without 
objection, it is so ordered.
  Mr. LEAHY. I ask for the yeas and nays on those two and only those 
two.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays are ordered on the two nominations.
  The PRESIDING OFFICER. The distinguished Senator from Michigan is 
recognized for up to 3 minutes.
  Mr. LEVIN. I am pleased the long road to confirmation for three 
nominations for the Federal bench in the Western District of Michigan, 
Janet Neff, Robert Jonker, and Paul Maloney is apparently near the end 
of the road. Senator Stabenow and I worked with the White House on 
these nominations. Last year they were unanimously reported out of the 
Judiciary Committee and again this year. The confirmation of these 
nominees has been blocked since last November. The sticking point of 
the Senator who objected was that one of the nominees, Judge Neff, 
personally attended a same-sex commitment ceremony of a family friend 
who was a next-door neighbor of hers for 26 years.
  When Judge Neff was asked to deliver some remarks, Judge Neff felt it 
was similar to being asked by one of her own daughters to be part of an 
important event in her life.
  The ceremony was entirely private. It took place in Massachusetts, 
where Judge Neff has no official capacity. The ceremony had no legal 
effect. Judge Neff took no official role in the ceremony whatsoever.
  Her qualifications are clear. She currently serves on the Michigan 
Court of Appeals, where she has served for a significant period of 
time.
  Judge Neff graduated with honors from the University of Pittsburgh in 
1967, then graduated from Wayne State University Law School in 1970. 
She has had a distinguished legal career. After law school, Judge Neff 
served as an estate and gift tax examiner for the Internal Revenue 
Service and then as a research attorney for the Michigan Court of 
appeals, before becoming an assistant city attorney for the city of 
Grand Rapids. Judge Neff has also worked in private practice, served as 
a commissioner for the Michigan Supreme Court and then as an assistant 
U.S. attorney. Judge Neff currently serves on the Michigan Court of 
Appeals. She has been granted numerous awards and honors, including the 
Outstanding Member for 2006 of the Women Lawyers Association of 
Michigan.
  We are fortunate to have the opportunity today to confirm Judge Neff, 
along with two other qualified nominees, Robert Jonker and Paul 
Maloney.
  I only hope now that we finally have an opportunity to confirm these 
three judges, that we will do so and do so overwhelmingly.
  I yield the floor.
  Mr. WEBB. Madam President, it is my distinct pleasure to offer my 
support--along with my colleague Senator Warner--for the nomination of 
Magistrate Judge Liam O'Grady to be a judge on the U.S. District Court 
for the Eastern District of Virginia.
  Since graduating from law school, Judge O'Grady's career has been as 
expansive as it has been distinguished. Judge O'Grady currently serves 
as magistrate judge in the U.S. District Court for the Eastern District 
of Virginia, where he has sat since 2003. Prior to taking the bench, 
Judge O'Grady was a partner at the law firm of Finnegan, Henderson, 
Farabow, Garrett, & Dunner, LLP, 1992-2003, an assistant U.S. Attorney 
in the Eastern District of Virginia, 1986-1992, and an assistant 
Commonwealth Attorney for the Commonwealth of Virginia. Judge O'Grady 
began his career as a law clerk to an administrative law judge for the 
Department of Labor and the Department of the Interior, 1976-1979, and 
was subsequently a sole practitioner, 1979-1982.
  Judge O'Grady has spent equal time in Federal and State courts and 
has spent equal time handling criminal and civil matters. Judge O'Grady 
has tried more than 100 cases before a jury. Moreover, he has authored 
and published several scholarly articles, and he has devoted countless 
hours in pro bono work for low-income and indigent clients. Judge 
O'Grady was unanimously rated ``well-qualified'' by the American Bar 
Association.
  Judge O'Grady is married to Grace McPhearson O'Grady and has four 
children. He resides in McLean, VA. Judge O'Grady received a B.A. from 
Franklin & Marshall College, 1973, and a J.D. from George Mason 
University School of Law, 1977.
  As I have previously noted, the Constitution assigns a pivotal role 
to the Senate in the advice and consent process related to Federal 
judges. These judgeships are lifetime appointments, and Virginians 
expect me to take very seriously my constitutional duties. In my mind, 
it matters not whether a nominee is a Republican or a Democrat, but 
rather whether the nominee will be respectful of the Constitution, and 
impartial, balanced, and fair-minded to those appearing before him. 
After careful deliberation, including conferring with Senator Warner, I 
believe that Judge O'Grady meets these high standards.
  I thank the Chair for the opportunity to make these remarks about 
Judge O'Grady and for the expeditious way the Senate has moved his 
nomination through the process during the 110th Congress. Again, it is 
with pride that I join Senator Warner in recommending Judge O'Grady to 
each of my colleagues in the Senate.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Liam O'Grady, of Virginia, to be U.S. 
district judge for the Eastern District of Virginia.
  On this question, the yeas and nays have been ordered. The clerk will 
call the roll.
  The assistant journal clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Dakota (Mr. 
Dorgan), the Senator from Hawaii (Mr. Inouye), the Senator from South 
Dakota (Mr. Johnson), the Senator from

[[Page 18111]]

Arkansas (Mrs. Lincoln), and the Senator from Illinois (Mr. Obama) are 
necessarily absent.
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from Colorado (Mr. Allard), the Senator from North Carolina (Mr. Burr), 
the Senator from Georgia (Mr. Chambliss), the Senator from Nevada (Mr. 
Ensign), the Senator from Arizona (Mr. McCain), the Senator from South 
Dakota (Mr. Thune), and the Senator from Ohio (Mr. Voinovich).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                      [Rollcall Vote No. 239 Ex.]

                                YEAS--88

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Durbin
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Martinez
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Vitter
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--12

     Allard
     Burr
     Chambliss
     Dorgan
     Ensign
     Inouye
     Johnson
     Lincoln
     McCain
     Obama
     Thune
     Voinovich
  The nomination was confirmed.

                          ____________________