[Congressional Record (Bound Edition), Volume 154 (2008), Part 11]
[Senate]
[Pages 15405-15409]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATIONS OF PAUL G. GARDEPHE TO BE UNITED STATES DISTRICT JUDGE FOR 
 THE SOUTHERN DISTRICT OF NEW YORK AND KIYO A. MATSUMOTO TO BE UNITED 
       STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK

  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the Senate 
now proceed to executive session to consider the following nominations: 
Calendar Nos. 687 and 688, and that the Senate proceed to vote on 
confirmation of the nominations; that upon confirmation of the 
nominations, the motions to reconsider be laid upon the table, en bloc, 
the President be immediately notified of the Senate's action, with no 
further motions in order, and the Senate then resume legislative 
session; and that any statements relating to the nominations be printed 
in the Record; and that after this consent is granted, Senator Specter 
of Pennsylvania be recognized for 1 hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the Senate will go into executive session 
and proceed to the consideration, en bloc, of Executive Calendar Nos. 
687 and 688, which the clerk will report.
  The assistant legislative clerk read the nominations of Paul G. 
Gardephe, of New York, to be United States District Judge for the 
Southern District of New York; and Kiyo A. Matsumoto, of New York, to 
be United States District Judge for the Eastern District of New York.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nominations of Paul G. Gardephe, of New York, to be U.S. 
District Judge for the Southern District of New York, and Kiyo A. 
Matsumoto, of New York, to be U.S. District Judge for the Eastern 
District of New York?

[[Page 15406]]

  The nominations were confirmed.
  Mr. LEAHY. Mr. President, today we continue to make progress by 
having confirmed two more nominations for lifetime appointments to the 
Federal bench: Paul Gardephe for the Southern District of New York and 
Kiyo Matsumoto for the Eastern District of New York.
  These nominees each have the support of the New York Senators, who 
worked with the White House to identify a slate of consensus nominees. 
I thank Senators Schumer and Clinton for their consideration of these 
nominees. I also thank Senator Schumer for chairing the hearing on 
their nominations.
  It is ironic that again this week the Senate Republicans have made 
another attempt to make a partisan, election-year issue out of the 
confirmation of judicial nominations. This is the one area where the 
numbers have actually improved during the Bush Presidency while the 
life of hardworking Americans has only gotten more difficult. Inflation 
is now on the rise, jobs are being lost, gas prices have skyrocketed, 
food prices have soared, health care is unaffordable and what 
Republicans come to the floor to pick a partisan fight about today is 
the pace of judicial confirmations.
  Americans have seen the unemployment rate rise to 5.5 percent and 
trillions of dollars in budget surplus have turned into trillions of 
dollars of debt. This week General Motors announced layoffs. The annual 
budget deficit is in the hundreds of millions of dollars, the dollar 
has lost half its value and the costs of the Iraq war and interest on 
the national debt amount to $1.5 billion a day. And today Republicans 
spent their time on the Senate floor--after the Democratic leadership 
of the Senate had pushed through two more judicial confirmations to 
lifetime appointments--to complain about the pace of judicial 
confirmations.
  When President Bush took office, the price of gas was $1.42 a gallon. 
Today it is at an all-time high of over $4.10 a gallon. The Nation's 
trade deficit widened 8 percent in April alone due to the surging gas 
prices, and is now at its highest level in 13 months. The housing 
crisis and mortgage crisis threaten the economy. The Chairman of the 
Federal Reserve gave sobering testimony this week to the Senate and the 
House. The stock market lost 2,000 points in the first 6 months of the 
year and went under 11,000. But Republicans want to talk about judicial 
confirmations, an issue that they hope will charge up rightwing voters.
  Struggling Americans--no not whiners, but hardworking Americans 
trying to do the best they can for their families--are more concerned 
about critical issues they face in their lives each day. They are 
concerned about affording to heat their homes this winter. They are 
concerned about gas prices that have skyrocketed so high they do not 
know how they will afford to drive to work. They are concerned about 
the steepest decline in home values in two decades. More and more 
Americans are affected by rising unemployment, with job losses for the 
first 6 consecutive months of this year tallying over 438,000. 
Americans are worried about soaring health care costs, rising health 
insurance costs, the rising costs of education and rising food prices. 
The partisan, election-year rhetoric over judicial nominations, at a 
time when judicial vacancies have been significantly reduced, is a 
reflection of misplaced priorities.
  Our progress today in confirming two more nominations for lifetime 
appointments shows that when the President works with home state 
Senators to identify consensus, well-qualified nominees, we can make 
progress, even this late in an election year.
  Paul Gardephe has been a partner and chair of the Litigation 
Department at the New York law firm of Patterson, Belknap, Webb & Tyler 
LLP since 2003. Previously, Mr. Gardephe worked in the private sector 
and also held several positions with the Department of Justice, 
including special counsel for the Office of the Inspector General.
  Kiyo Ann Matsumoto is a U.S. magistrate judge in the Eastern District 
of New York. Prior to her appointment to the bench in 2004, Judge 
Matsumoto served as an assistant U.S. attorney for the Eastern District 
of New York and also worked in private practice. Judge Matsumoto is 
only the fourth Asian-American judge appointed by this President in 
nearly 8 years. Her mother and father spent time in an internment camp 
during World War II, one of the dark days in American history when we 
allowed fear and prejudice to undermine our commitment to liberty and 
justice. Now Judge Matsumoto is poised to be confirmed to a lifetime 
appointment to the Federal bench, charged with protecting the rights of 
all Americans.
  I congratulate the nominees and their families on their confirmation 
today. The Federal judiciary is the one arm of our Government that 
should never be political or politicized, regardless of who sits in the 
White House. I will continue in this Congress, and with a new President 
in the next Congress, to work with Senators from both sides of the 
aisle to ensure that the Federal judiciary remains independent, and 
able to provide justice to all Americans, without fear or favor.
  Even while we hear a steady stream of grumbling from Republicans, 
responding to partisan pressure from special interest groups, the 
Senate continues to make progress in reducing judicial vacancies to 
lows not seen in decades. We have gone quite a ways to make up for the 
abuses the Republicans committed during the Clinton years. Since the 
years in which Republicans pocket-filibustered more than 60 of 
President Clinton's moderate and qualified judicial nominees, and 
judicial vacancies topped 100, we have cut vacancies by more than half 
and reduced circuit court vacancies by almost three-fourths from a high 
point of 32, to just nine throughout the entire country and throughout 
all 13 Federal circuits.
  The contrast is stark between the Democratic majority that cut 
vacancies dramatically during the Bush Presidency and the Republican 
majority that doubled them during the Clinton Presidency. The 100 
nominations we confirmed in only 17 months in 2001 and 2002, while 
working with a most uncooperative White House, reduced the vacancies by 
45 percent by the end of 2002. Consider this snapshot: On July 15, 
2000, when a Republican Senate majority was considering the judicial 
nominees of a Democratic President in Presidential election year, there 
were 61 judicial vacancies. Twenty were circuit court vacancies On July 
15 of this year, before today's two confirmations, there were 42 total 
vacancies throughout the country, and for the first time in decades, 
circuit court vacancies were in single digits, at just 9. For the first 
time since Republicans began their obstruction of President Clinton's 
judicial nominees in 1996, circuit vacancies had been reduced to single 
digits.
  With 40 additional confirmations last year, and another 16 so far 
this year, the Senate under Democratic leadership has already confirmed 
more judges than in the entire last Congress. In 2 full years with a 
Republican chairman and a Republican Senate majority working to confirm 
the judicial nominees of a Republican President, 54 nominations were 
confirmed. After the two confirmations today, we will have already 
reached 56 judicial confirmations for this Congress. Two additional 
nominations remain pending on the Senate's Executive Calendar. With a 
little cooperation from Republican Senators, who objected earlier today 
to the majority leader's proposal to consider two judges today with a 1 
hour time agreement, those two judicial nominations could also be 
confirmed. Then we will not only have exceeded the total of the last 
Congress but equaled under Democratic leadership the total number of 
nominees confirmed in 4\1/2\ years of Republican control of the Senate. 
Truth be told, President Bush's judicial nominees have been confirmed 
faster by the Democratic majority than by the previous Republican 
majority of the Senate. To date, the Democratic majority has confirmed 
156 of President Bush's judicial nominations in the 3 years that I have 
chaired the Judiciary Committee. Judicial vacancies have fallen from 
9.9

[[Page 15407]]

percent at the start of the Bush administration to just 4.7 percent 
today.
  The colloquies on the Senate floor today included misinformation 
about judicial emergency vacancies. Many of these resulted from the 
Republican slowdown during the Clinton years. In fact nearly half of 
the judicial nominees the Senate has confirmed while I have served as 
the chairman of the Judiciary Committee have filled vacancies 
classified by the Administrative Office of the Courts as judicial 
emergency vacancies. Eighteen of the 27 circuit court nominees 
confirmed while I have chaired the committee filled judicial 
emergencies, including 9 of the 10 circuit court nominees confirmed 
this Congress. This is another aspect of the problem created by 
Republicans that we have worked hard to improve. When President Bush 
took office there were 28 judicial emergency vacancies. Those have been 
reduced by more than half.
  Republicans playing to the far right wing of their political base 
ignore this progress. They also ignore the crisis they had created by 
not considering circuit nominees in 1996, 1997 and 1998. They ignore 
the fact that they refused to confirm a single circuit nominee during 
the entire 1996 session. They ignore the fact that they returned 17 
circuit court nominees without action to the White House in 2000. They 
ignore the public criticism of Chief Justice Rehnquist to their actions 
during those years. They ignore the fact that they were responsible for 
more than doubling circuit court vacancies during their pocket 
filibusters of Clinton nominees or that we have reduced those circuit 
court vacancies by almost three quarters.
  In fact, as the Presidential elections in 2000 drew closer, and when 
the judicial vacancy rate stood at 7.2 percent, then-Judiciary 
Committee Chairman Orrin Hatch declared that ``There is and has been no 
judicial vacancy crisis,'' and that 7.2 percent was a ``rather low 
percentage of vacancies that shows the judiciary is not suffering from 
an overwhelming number of vacancies.'' As a result of their inaction, 
the vacancy rate continued to rise, reaching 10 percent when the 
Democrats took over the Senate majority in 2001.
  Democrats have reversed course. We have cut circuit court vacancies 
by nearly three-quarters, from a high of 32 to only 9. With the 
confirmation of two nominees today, the vacancy rate will be just 4.7 
percent.
  I have yet to hear praise from a single Republican for our work in 
lowering vacancies. I also have yet to hear in the Republican talking 
points any explanation for their actions during the 1996 congressional 
session, when the Republican Senate majority refused to allow the 
Senate to confirm even one circuit court judge.
  Republicans' childish antics this year include boycotting business 
meetings of the Judiciary Committee, cutting hearings short or 
objecting to them being held and cutting short business meetings of the 
committee. Today we were scheduled to consider a number of bipartisan 
measures. Several are important items on which Republicans had already 
delayed consideration since June. They include the bipartisan bill to 
reauthorize the Juvenile Justice and Delinquency Prevention Act, a 
bipartisan OPEN FOIA bill and the bipartisan William Wilberforce 
Trafficking Victims Protection Reauthorization Act. In addition, we had 
before us the Fairness in Nursing Home Arbitration Act, the Fugitive 
Information Networked Database Act, the Methamphetamine Production 
Prevention Act and the National Guard and Reservists Debt Relief Act.
  I had hoped that today we would be able to report these measures. A 
few words about one of them--the legislation to reauthorize the William 
Wilberforce Trafficking Victims Protection Act. This bill would 
strengthen our efforts to stop the abhorrent practice of human 
trafficking around the world. Our bill enhances protections for victims 
of these terrible crimes. Human trafficking is a modern-day form of 
slavery, involving victims who are forced, defrauded or coerced into 
sexual or labor exploitation. These practices continue to victimize 
hundreds of thousands around the word, mostly women and children, and 
we must do all that we can to be more effective in confronting this 
continuing problem. I thank Senator Biden for his leadership. 
Unfortunately, Republican partisan antics have gotten in the way of 
progress on this front and delayed the Judiciary Committee and the 
Senate from acting on this measure.
  Rather than meet and work on the human trafficking bill and the 
others, a number of the Republican Senators who serve on the Judiciary 
Committee came to the Senate floor while Republicans objected to the 
committee meeting. That is too bad.
  They previously boycotted business meetings for the month of February 
when we were trying to report judicial nominations. That only slowed 
our progress. Then, when we tried to expedite consideration of two 
circuit court nominations in May, they objected. Those judicial 
nominations were finally confirmed late in June.
  As my friend, the senior Senator from Pennsylvania may recall, while 
chairman of the committee, I helped him move forward with the judicial 
nominations of Nora Barry Fischer, and Thomas Hardiman to the Third 
Circuit, and with Legrome Davis, Michael Baylson, Cynthia Rufe, 
Christopher Conner, John Jones III, David Cercone, Timothy Savage, 
Terrence McVerry, Arthur Schwab, James Gardner to the Federal district 
courts in Pennsylvania despite the way President Clinton's Pennsylvania 
nominees were treated. I also had the committee proceed to the Third 
Circuit nomination of D. Brooks Smith, a nomination which I did not 
support. As ranking member, I worked with Chairman Hatch and Chairman 
Specter in connection with the confirmations of Michael Fisher and 
Franklin van Antwerpen to the Third Circuit, as well as the nominations 
of Thomas Hardiman, Gene Pratter, Lawrence Stengel, Paul Diamond, Juan 
Sanchez, and Thomas Golden to Federal district court in Pennsylvania. 
With the exception of two nominees from Pennsylvania currently pending 
before the Judiciary Committee that do not have the support of their 
home State Senators, every judicial nominee for a Pennsylvania vacancy 
nominated by President Bush has been confirmed by the Senate. That is 
23 nominations in all, including four to the Third Circuit.
  As my good friend from Iowa may recall, I expedited confirmation of 
John Jarvey and Michael Mellow to the Eighth Circuit, and James 
Gritzner and Linda Reade to the Federal district court in Iowa. As we 
discussed at a recent committee business meeting, thanks to all our 
work, there is no Federal judicial vacancy in Iowa, not one.
  I did not hear the Senator from Arizona recall my cooperation over 
the years in the confirmation of a number of Federal judges in Arizona. 
The Senate confirmed David Campbell, Neil Vincent Wake, Frederick 
Martone, Cindy Jorgenson, and David Bury. Among the last judges 
confirmed in 2000 was the Senator from Arizona's close friend James 
Teilborg. I accommodated Senator Kyl as recently as last month in 
connection with the most recent Federal judge appointed in Arizona, 
Judge Murray Snow. That filled the only vacancy on the Federal bench in 
Arizona. So like Iowa, given our action, there is no Federal judicial 
vacancy in Arizona, not one.
  As for my friend from Alabama, he is another member I have gone out 
of my way to assist over the years. In particular, I remember the 
confirmation of Kristi Dubose. There were also the confirmations of 
Karon Boudre, Callie Granade and Mark Fuller while I chaired the 
committee. The Senate has also confirmed William Steele, L. Scott 
Coogler, R. David Proctor, Virginia Hopkins and W. Keith Watkins, all 
of whom I supported. Having helped confirm 10 Federal judges in Alabama 
since 2001, I wondered why he did not note that Alabama is another 
State that, thanks to our efforts, has no judicial vacancy, not one.
  I look forward to a time when Senators from the other side of the 
aisle return to work with us on the important legislative business of 
the Judiciary Committee. It would be refreshing if they recognized the 
progress we have made on filling judicial vacancies. We

[[Page 15408]]

have not pocket-filibustered 60 of President Bush's judicial nominees, 
as they did to President Clinton. We have not engaged in tit for tat. 
But, as even Senator Specter acknowledged this morning, nothing we do 
will satisfy Republican Senators.
  Mr. COBURN. Mr. President, today I join my colleagues in calling for 
up-or-down votes for the President's judicial nominees. I supported the 
decision not to attend the Judiciary Committee's Executive Business 
Meeting this morning because the committee does not appear to be 
serious about its responsibility to process nominees. Today's agenda 
contained no nominees, and no hearings have been scheduled for the many 
qualified individuals who await them. One of our highest constitutional 
responsibilities in the Senate is the consideration of judicial 
nominees. If the Judiciary Committee agenda does not include nominees, 
there is little point in attending its meetings. I hope the chairman 
will take note of Republicans' absence and schedule nominees for both 
hearings and markup without further delay.
  Now I would like to take a minute to respond to a comment made by the 
majority leader this morning. He said, ``I can't ever remember going 
home and somebody . . . saying, `Could you guys do some more judges? We 
need to take care of this judges problem.' ''
  For the record, I would like to say that I have not had the same 
experience with my constituents in Oklahoma. In fact, I frequently hear 
from them regarding their interest in judicial nominations. Here are 
just a few examples:
  Lou Baber, from Oklahoma City, writes: ``I am incensed by the U.S. 
Senate's lack of action on the federal judicial nominees President Bush 
has proposed for seats on district and appeals courts. . . . I hope you 
will take action in the coming weeks on an issue that has already 
seriously damaged the Senate's reputation.''
  Samantha Jones, from Claremore, writes: ``Please . . . vote for . . . 
judicial nominees in the confirmation process. They deserve fair 
treatment . . . we need good judges.''
  Peggy Low, of Yukon, writes: ``Will you please press the other 
senators to give the judicial nominees an up-or-down vote, pronto? That 
is their job and [it is] so overdue.''
  Barbara Tipton, of Chandler, writes: ``Please push to have the 
judicial nominees come to the full Senate for a vote.''
  John and Pam Rawlins, of Ponca City, write: ``I want to applaud and 
thank Senator Coburn for bold[ly] standing up for the many judicial 
nominees that are blocked in the Senate. KEEP IT UP! That is what you 
are elected to do. We in Oklahoma understand this and [are] 1000 
percent behind you.''
  As I said, there are just a few of the many letters I have received 
from home about this issue. I will ask that they be printed in the 
Record.
  As demonstrated by the statements I just read, my constituents 
understand what some in this body do not: The issue is not about 
getting more judges, it is about confirming quality judges who will 
uphold the Constitution. Isn't this our clear constitutional 
responsibility?
  Part of the reason I decided to run for the Senate was my desire to 
see judicial nominees receive an up-or-down vote and my desire to 
restore a restrained judiciary, bound by our Constitution, laws and 
treaties. Too often fundamental liberties and important decisions are 
taken away from the American people by judicial fiat. The Constitution 
gives the American people, through their elected officials, the right 
of self-determination by allowing legislative bodies closest to the 
people decide the important issues of the day.
  You don't have to look far to find examples of judges overriding the 
people's will--one recent example affected my home state of Oklahoma. 
Last month, in a 5-4 decision, the Supreme Court held that the death 
penalty is an unconstitutional punishment for the rape of a child. The 
majority assumed a ``national consensus'' that the death penalty for 
child rape was unconstitutional and then substituted its own 
independent judgment for that of the people and the law, declaring it 
inconsistent with ``evolving standards of decency.'' Yet Oklahoma, 
along with five other States, had laws permitting the death penalty for 
such offenses. Congress had even adopted the penalty, a fact somehow 
overlooked by the Court. One decision by five unelected judges struck 
those laws down.
  Americans are right to be outraged by this kind of judicial activism. 
Oklahomans chose to protect their children by allowing the death 
penalty for anyone convicted twice of rape, sodomy or lewd molestation 
involving children under 14. Now, because a handful of judges halfway 
across the country declared the state's decision to be inconsistent 
with so-called ``evolving standards of decency,'' their sound judgment 
has been overruled.
  Given this example and many others like it, it is clear that 
Americans are concerned about the Senate's treatment of judicial 
nominees. If further evidence is needed to prove the point, a recent 
Rasmussen poll shed light on the issue. It found that, by a 69 percent 
to 20 percent margin, voters believe that judges should interpret the 
law as it is written. Sixty-one percent say they trust voters more than 
judges or elected officials to decide important decisions facing the 
country.
  The obstruction that has occurred in the 110th Congress is 
unacceptable. It is time to break this stalemate and confirm more of 
the President's highly qualified nominees.
  I ask unanimous consent that the letters to which I referred be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       I am incensed by the U.S. Senate's lack of action on the 
     federal judicial nominees President Bush has proposed for 
     seats on district and appeals courts. For this reason, I am 
     urging you to use your influence to urge the Judiciary 
     Committee and the Majority Leader to prioritize this 
     important issue.
       Many of the nominees for these important positions are 
     well-qualified and have already gone through the Senate's 
     confirmation process before. There is no reason not to 
     consider their candidacy for a federal judgeship. As a member 
     of the Center for Moral Clarity, a national Christian 
     grassroots organization, I hope you will take action in the 
     coming weeks on an issue that has already seriously damaged 
     the Senate's reputation.
       Thank you for considering my opinion.
                                                        Lou Baber,
     Oklahoma City, OK.
                                  ____

       Please make a vote for the judicial nominees in the 
     confirmation process. They deserve fair treatment in this. We 
     need good judges.
                                                   Samantha Jones,
     Claremore, OK.
                                  ____

       Dear Dr. Coburn, will you please press the other senators 
     to give the judicial nominees an up or down vote pronto? That 
     is their job and so overdue. Thank you for all your good work 
     on behalf of the unborn and for our country.
           Sincerely,
                                                        Peggy Low,
     Yukon, OK.
                                  ____

       Please push to have the judicial nominees to come to the 
     full Senate for a vote. Thank you.
                                                   Barbara Tipton,
     Chandler, OK.
                                  ____

       I want to applaud and thank Senator Coburn for boldly 
     standing up for the many judicial nominees that are blocked 
     in the senate. KEEP IT UP! That is what you are elected to 
     do. We in Oklahoma that understand this are 1000 percent 
     behind you.
       Go with our blessings!

                                             John and Pam Rawlins,
                                                   Ponca City, OK.

  Mrs. CLINTON. Mr. President, I am pleased that the Senate today 
confirmed the nomination of two New Yorkers to the Federal bench.
  Kiyo Matsumoto had served as a magistrate judge in the Eastern 
District of New York since 2004. Prior to her appointment, Judge 
Matsumoto served in the U.S. Attorney's Office for the Eastern District 
of New York for more than two decades and held the position of deputy 
chief of the civil division in that office. Judge Matsumoto has taught 
as an adjunct law professor at the New York University School of Law as 
well as worked as a legal research and writing instructor at the 
Brooklyn Law School. Judge Matsumoto has also served as a member of the 
Federal Court Committee of

[[Page 15409]]

the City of New York Bar. Now that she has been confirmed, Judge 
Matsumoto becomes only the eighth active Asian-Pacific American Senate-
confirmed judge on the Federal bench out of approximately 850 judges 
nationwide.
  Paul Gardephe was most recently a partner and chair of the Litigation 
Department at the New York law firm of Patterson, Belknap, Webb & Tyler 
LLP. Previously, Mr. Gardephe was a special counsel for the U.S. 
Department of Justice Inspector General's Office. He has also worked 
for the law department of Time Inc., where he held the positions of 
vice president, litigation deputy general counsel, and Associate 
General Counsel. Prior to this work, Mr. Gardephe served in the U.S. 
Attorney's Office for the Southern District of New York for nearly 10 
years. For the past 15 years, Mr. Gardephe has taught trial advocacy at 
New York Law School as an adjunct professor.
  The careers of both nominees have been marked by a record of 
achievement and a commitment to public service. I am certain that each 
of these individuals will be a credit to the Federal judiciary and will 
continue to exhibit the qualities that have defined their entire 
careers: devotion to justice and respect for the rule of law. I am 
proud to have supported each of their nominations, and I commend 
Senator Schumer and the members of the Judiciary Committee on their 
diligence in ensuring that our Federal courts are served by men and 
women of such distinction.
  The PRESIDING OFFICER. Under the previous order, the President will 
be immediately notified of the Senate's action.

                          ____________________