[Congressional Record (Bound Edition), Volume 153 (2007), Part 3]
[Senate]
[Pages 4101-4104]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NORMAN RANDY SMITH TO BE UNITED STATES CIRCUIT JUDGE FOR THE NINTH 
                                CIRCUIT

                                 ______
                                 

MARCIA MORALES HOWARD TO BE UNITED STATES DISTRICT JUDGE FOR THE MIDDLE 
                          DISTRICT OF FLORIDA

  The ACTING PRESIDENT pro tempore. The Senate will proceed to 
executive session to consider the following nominations en bloc.
  The clerk will report.
  The assistant legislative clerk read the nominations of Norman Randy 
Smith, of Idaho, to be United States Circuit Judge for the Ninth 
Circuit and Marcia Morales Howard, of Florida, to be United States 
District Judge for the Middle District of Florida.
  Mr. LEAHY. Mr. President, today, we consider nominations for lifetime 
appointments to the Federal bench, including Judge Norman Randy Smith 
to the Court of Appeals for the Ninth Circuit. Judge Smith was 
nominated to a seat on the Ninth Circuit designated a judicial 
emergency by the Administrative Office of the Courts. Judge Smith's 
nomination easily could have been confirmed in the last Congress--and 
the emergency addressed many months ago--had the Bush administration 
chosen the common-sense approach it has now followed of nominating 
Judge

[[Page 4102]]

Smith--who is from Idaho--to Idaho's seat on the Ninth Circuit.
  Instead, the President picked a fight by insisting on nominating 
Judge Smith to a California seat on the Ninth Circuit. Judge Smith had 
been nominated to fill the seat last occupied by Judge Stephen Trott, 
an appointee from California who made a personal decision to move to 
Idaho. I know of no precedent for shifting a circuit seat based on a 
judge's personal decision to change his or her personal residence. That 
generated opposition from the California Senators and created an 
impasse. I supported the California Senators, as I had Senators 
Sarbanes and Mikulski in a similar circumstance when this President 
sought to fill a Maryland seat on the Fourth Circuit with someone from 
Virginia.
  I have tried for some time to get the President to redesignate the 
Smith nomination and nominate him to fill the Idaho vacancy. At long 
last, the President has done the right thing. The White House finally 
changed course and the President nominated Judge Smith for the Idaho 
seat on the Ninth Circuit. I thank the President for finally doing the 
right thing.
  With the cooperation of the Senators from California and the other 
Members of the Judiciary Committee, we were able to avoid having a 
hearing on Judge Smith's nomination in this Congress and to expedite 
his consideration, now that he has been designated for the Idaho 
vacancy. We were able to report Judge Smith's nomination last Thursday. 
Today, at long last, Senator Craig and Senator Crapo and the people of 
Idaho will have a judge on this important court from their home State.
  We have worked hard since convening this Congress to make significant 
progress in our consideration of judicial nominations. At our first 
executive business meeting, the Judiciary Committee reported out five 
judicial nominations little more than 2 weeks after they were sent to 
us. Three of these were for vacancies determined by the Administrative 
Office of the U.S. Courts to be judicial emergencies. All five were 
among those returned to the President without Senate action at the end 
of last year when Republican Senators objected to proceeding with 
certain of the President's judicial nominees in September and December 
last year. All five were confirmed only 3 weeks after they were 
nominated.
  Last week, we reported another five nominations, including the 
nominations we consider today. We reported nominees from the home 
States of Senator Specter and Senator Grassley and I want to thank 
Senator Casey and Senator Brown for expediting their consideration of 
nominees from their home States and approving them so quickly after 
taking office. I have worked cooperatively with Members from both sides 
of the aisle on our Committee, and in the Senate, to consider quickly 
and report 10 judicial nominations so far this year, allowing us to 
fill vacancies and improve the administration of justice in our 
Nation's Federal courts.
  With the five confirmations last week we have confirmed more of 
President Bush's nominations in the 18 months I have served as 
Judiciary Committee Chairman than in the more than two years when 
Senator Hatch chaired the Committee with a Republican Senate majority 
or during the entire last Congress with a Republican Senate majority.
  With Judge Smith's confirmation today, we will have confirmed a 
nomination to one of the Nation's important circuit courts little more 
than a month after the Republicans agreed to resolution allowing the 
Senate to organize. That is more than the total of President Clinton's 
nominations to circuit court vacancies confirmed by the Republican-
controlled Senate during the entire 1996 session. Today, with this one 
confirmation we will surpass the Republican total for an entire session 
of the Congress.
  Last week, we also held the first judicial nominations hearing of the 
new Congress and considered three more nominees, two of whom are 
nominated to fill judicial emergency vacancies. We held that hearing on 
February 6. When a Republican chaired the Committee in 1999 and there 
was a Democratic President, the first hearing on a judicial nominee was 
not held until June 16. We could have postponed this hearing because it 
was at the same time as the Senators briefing on the new National 
Intelligence Estimate about the deteriorating situation in Iraq. As I 
did after 9/11, and after the Senate buildings were shut down by the 
anthrax letters, I chose to go forward with the nominations hearing.
  I know some on the other side of the aisle have tried to raise a 
scare since I, again, became Chairman of the Judiciary Committee. They 
rant as if the sky is falling and as if we would not proceed on any 
judicial nominations. On the contrary, we have proceeded promptly and 
efficiently.
  I have long urged the President to fill vacancies with consensus 
nominees. After this week's confirmations, according to the 
Administrative Office of the U.S. Courts there will be 51 judicial 
vacancies, 24 of which have been deemed to be judicial emergencies. Of 
those 24 judicial emergency vacancies, the President has yet to send us 
nominees for 17 of them. That means two-thirds of the judicial 
emergency vacancies are without a nominee from the President.
  We will continue moving forward efficiently as long as the President 
sends us qualified, consensus nominees.


                                  iraq

  Mr. HAGEL. Mr. President, just a brief response to the distinguished 
majority leader about motives as to debate on Iraq.
  I don't know a Senator who has been clearer or more concise on this 
administration's positions on Iraq than the senior Senator from 
Nebraska. To suggest that some on this side are impeding or trying to 
protect the Bush administration's policy on Iraq, specifically 
escalating our military involvement in Iraq, is a bit off the mark.
  The fact is, the minority leader is very clear in his purpose. I have 
supported that. Minority rights are the essence, the foundation of this 
body. The minority should have an opportunity to present their 
resolution or resolutions. It should not be dictated to by the 
majority.
  Make it very clear, those on this side who have pushed for this 
debate are very clear in our position. I doubt if there is anyone who 
has been clearer than this Senator.
  I yield the floor.
  Mr. SPECTER. Mr. President, there is only a minute left before 10:30, 
not enough time to discuss. I ask unanimous consent I be recognized at 
the conclusion of the third vote for 10 minutes.
  Mr. LEAHY. I did not hear the request.
  Mr. SPECTER. My request--we were supposed to speak, but the time has 
been consumed otherwise. With only less than a minute left until 10:30, 
I have asked for consent to speak for 10 minutes at the conclusion of 
the third vote.
  Mr. LEAHY. At the conclusion of the third vote?
  Mr. SPECTER. Let me amend that to ask for 10 minutes for the chairman 
of the Judiciary Committee.
  Mr. LEAHY. I have an hour reserved after the third vote anyway. 
Certainly, if the Senator from Pennsylvania wants to take his 10 
minutes ahead of that hour, I have no objection.
  Mr. SPECTER. I ask consent to that request.
  The ACTING PRESIDENT pro terrpore. Without objection, it is so 
ordered.


                Vote on Nomination of Norman Randy Smith

  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Norman Randy Smith, of Idaho, to be United States Circuit Judge for 
the Ninth Circuit? The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Connecticut (Mr.

[[Page 4103]]

Dodd), and the Senator from South Dakota (Mr. Johnson) are necessarily 
absent.
  Mr. LOTT. The following Senators were necessarily absent: the Senator 
from Nevada (Mr. Ensign), the Senator from New Hampshire (Mr. Gregg), 
and the Senator from Texas (Mrs. Hutchison).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 94, nays 0, as follows:

                       [Rollcall Vote No. 49 Ex.]

                                YEAS--94

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

                             NOT VOTING--6

     Boxer
     Dodd
     Ensign
     Gregg
     Hutchison
     Johnson
  The nomination was confirmed.


              Vote on Nomination of Marcia Morales Howard

  The PRESIDING OFFICER (Mr. Brown). There are now 2 minutes equally 
divided before a vote on the Howard nomination.
  Who yields time?
  The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, two Senators from Florida rise 
to lend our support to Judge Howard, who is currently a magistrate 
judge and is an excellent choice. It is the privilege of Senator 
Martinez and myself to support the outstanding choice of Judge Howard 
to be a Federal district judge.
  Judge Howard is a graduate of Vanderbilt University and the 
University of Florida Law School.
  I want to make reference to a note I received from Judge Howard 
telling a bit about something unusual, because her parents arrived here 
from Cuba. This is what she writes:

       My parents arrived here with very little other than an 
     education and a willingness to work. Their success and my 
     nomination are truly a testament to the opportunity that 
     exists here simply by virtue of being an American. My parents 
     never let my brother, my sister, or me forget how fortunate 
     we were to be in a country where we could be whatever we 
     wanted to be or that we had a duty to give back to our 
     country.

  That is the kind of person who will be a successful Federal district 
judge.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Mr. President, I am delighted to join my colleague 
Senator Nelson in advancing the nomination of Marcia Morales Howard as 
a Federal district court judge for the Middle District of Florida. This 
outstanding woman lawyer from Florida not only has a distinguished 
academic background, having graduated from the University of Florida 
College of Law, being an editor of the Law Review there, but she also 
has been an accomplished litigator for 13 years with two very fine law 
firms in the State of Florida, Foley & Lardner and McGuireWoods. In 
2003, she became a Federal magistrate. As a magistrate, she has 
distinguished herself in the Middle District of Florida where she would 
be serving as a Federal district court judge.
  I know her and her family. I know what an outstanding American she 
is. I am very proud that with the magnitude of importance of a Federal 
appointment for a lifetime, we have someone of this competence, this 
dedication, and this quality to serve in this important post. I am 
delighted not only for the opportunity to advance the nomination but 
also to tell of the judicial nominating commission Senator Nelson and I 
have formed in the State of Florida, which I frankly believe is a model 
for bipartisan cooperation and also seeking the best and most qualified 
on the merits by positioning the nomination before a group of 
distinguished lawyers who then see the applicants, study their 
qualifications, and make recommendations.
  I am delighted to urge my colleagues to support the nomination of 
Marcia Morales Howard for Federal district judge for the Middle 
District of Florida.
  Mr. LEAHY. Mr. President, Judge Marcia Morales Howard, nominated to 
the Middle District of Florida, has the bipartisan support of both 
Florida Senators. With valuable experience as a Federal magistrate 
judge and as a former civil litigator, Judge Howard is well versed in 
litigation matters in Federal court. Judge Howard graduated from 
Vanderbilt University with a B.S. in 1987, and received her J.D. with 
honors in 1990, from the University of Florida, College of Law, where 
she served as Symposium Editor for the Florida Law Review.
  As a litigator in private practice, Judge Howard worked mostly on 
complex civil litigation matters in Federal court as an Associate with 
the law firm of Foley and Lardner, and later worked on labor and 
employment law cases as an Associate, and then Partner, at the law firm 
of McGuireWoods, LLP. Judge Howard has also shown her dedication to 
serving others by providing pro bono legal services through the 
Jacksonville Area Legal Aid and pro bono seminars through the 
Jacksonville Center for Independent Living to disabled individuals 
informing them of their rights under the Americans with Disabilities 
Act.
  I understand that Judge Howard is a first generation Cuban-American. 
She is being called upon to fill a position in one of the fastest 
growing areas in Florida. Senator Nelson has been a strong supporter of 
this nomination and has pressed for early action. I thank both Senators 
from Florida for their interest in this nomination. I also understand 
that Judge Howard's grandfather celebrated his 100th birthday just 2 
weeks ago, on February 1. Her confirmation today is testimony to the 
great promise that America holds for people from all parts of the 
world, that the granddaughter of someone who came to America can become 
a Federal judge.
  I congratulate the nominee and her family on her confirmation today.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, may I claim 1 minute as ranking member of 
the Judiciary Committee?
  I think Senator Nelson and Senator Martinez had important things to 
say about the nominee, but I don't think anybody heard them. So if I 
could have the attention of my colleagues.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. The nominee has an outstanding record, having served as 
a United States magistrate. She graduated from Vanderbilt in 1987, and 
from the University of Florida College of Law, with honors, in 1990. 
She has an outstanding professional record. I urge my colleagues to 
support her nomination.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Marcia Morales Howard, of Florida, to be a 
U.S. District Judge for the Middle District of Florida.
  Mrs. MURRAY. I ask for the yeas and nays on the nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Connecticut (Mr. Dodd), and the Senator from South 
Dakota (Mr. Johnson) are necessarily absent.
  Mr. LOTT. The following Senators were necessarily absent: the Senator 
from Nevada (Mr. Ensign), the Senator

[[Page 4104]]

from New Hampshire (Mr. Gregg), the Senator from Texas (Mrs. 
Hutchison), and the Senator from Oklahoma (Mr. Inhofe).
  Further, if present and voting, the Senator from Oklahoma (Mr. 
Inhofe) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 93, nays 0, as follows:

                       [Rollcall Vote No. 50 Ex.]

                                YEAS--93

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

                             NOT VOTING--7

     Boxer
     Dodd
     Ensign
     Gregg
     Hutchison
     Inhofe
     Johnson
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider and lay on the table is agreed to, and the President will be 
immediately notified of the Senate's action.

                          ____________________