[Congressional Record (Bound Edition), Volume 155 (2009), Part 19]
[Senate]
[Pages 25729-25736]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF IRENE CORNELIA BERGER TO BE UNITED STATES DISTRICT JUDGE 
               FOR THE SOUTHERN DISTRICT OF WEST 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 Irene Cornelia 
Berger, of West Virginia, to be United States District Judge for the 
Southern District of West Virginia.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Madam President, I rise to speak on precisely the 
issue the clerk reported. That is something which is extremely 
important to me and also extremely important to the people of West 
Virginia, a historic decision we are going to make.
  Today the Senate will consider the nomination of Judge Irene Berger 
to serve on the U.S. District Court for the

[[Page 25730]]

Southern District of West Virginia. I have had the pleasure of knowing 
Judge Berger for many years and having a very high regard for her and 
liking her very much for many years. I continue to be amazed by her 
tremendous intellect, her calmness--a very marvelous calmness which 
speaks of integrity and knowledge and fearlessness in the face of 
whatever may come up--and, of course, her complete dedication to public 
service, which I will talk about.
  She is a phenomenal person and a true professional, which is why I am 
so proud to join with Senator Byrd in recommending her to the President 
for this judgeship. Without any doubt, Judge Berger is one of the most 
qualified people to serve on the Federal bench. She truly is 
unmatched--in her professionalism and in her experience and in her 
demeanor--for this position. She has the temperament that should be 
expected of any judicial nominee, which is not just calmness and the 
right demeanor, but she embraces the courtroom, masters the courtroom. 
She is in charge of the courtroom. It is a wonderful thing.
  She is very smart, obviously. She is very fair. She is dispassionate, 
she is rational, she reaches her decisions in a very calm and 
deliberative way, showing respect and equal treatment to all claimants 
before her in the courtroom.
  I think it is perhaps, and I would judge, her upbringing that helped 
Judge Berger to be the outstanding person and judge that she is today. 
She grew up in a very large family in one of the four poorest counties 
in the United States of America. She worked hard, got a good education, 
and ultimately earned her law degree from the West Virginia University 
College of Law.
  Rather than seeking--which would make some sense in view of what she 
had been through--a high-paying job in a corporate law firm, which 
would have been hers just for the asking, so to speak, she decided to 
do what is natural to her, which is to give back to her community and 
to her State by devoting her entire 30-year legal career to serving her 
fellow West Virginians. In so doing, she has gained profound experience 
at nearly every level of our judicial system.
  She began her career as a legal aid attorney, protecting the rights 
of our State's most vulnerable citizens, and then kept our communities 
safe by serving for 12 years as a prosecuting attorney in Kanawha 
County, WV, which is the county in which I live. She would go on to 
serve briefly as an assistant U.S. attorney for the Southern District 
of West Virginia before being appointed to fill a vacancy as a circuit 
judge for the Thirteenth Judicial Circuit of West Virginia, a position 
she held for 15 years.
  As an attorney and a jurist, Judge Berger's hard work and 
determination have earned her the unqualified respect of all of her 
peers. Federal judges--everybody has written in saying this is the best 
person.
  After her initial appointment to the circuit court, the voters of 
Kanawha County, WV--and that was part of why that position in the court 
is different from the one she is now hopefully going to be voted into--
voted three times to keep her in that office because of her reputation 
as an honest, thoughtful, and skilled jurist.
  I think we all agree the Federal judicial system is fundamental to 
our democracy's continued vitality, and there is absolutely no one I 
trust more than Judge Berger to faithfully and skillfully serve in this 
enormously important role.
  Those are words, of course, but they are words, in my case, that come 
from deep within me. The American people deserve to know when they 
enter the courtroom that their judge is committed to justice and to 
equality and will treat them fairly, and that is exactly the type of 
judge Irene Berger is and will continue to be if we make that possible.
  She made that clear in her confirmation hearing by saying:

       I want to say very strongly that I will ensure that all 
     parties are treated fairly and equally. They will be heard 
     equally, be they rich or be they poor.

  Judge Berger has also remained an integral part of our community and 
our State. With her uncommon wisdom and insight she assumed leadership 
positions, obviously, within the court system and has been called to 
serve and agreed to serve on a number of boards of nonprofit 
organizations and educational institutions.
  She's writ large in life in West Virginia, I just have to say that. 
Her honors and awards are many. I almost hesitate to mention them 
because that is what everybody does, but it should be said: West 
Virginia College of Law, Outstanding Woman of Law Award; YWCA Woman of 
Achievement; the American Bar Association Foundation Fellowship; West 
Virginia University's Outstanding Alumna; and the NAACP Image Award for 
Leadership, to name just a few.
  I am perhaps most impressed by Judge Berger's courage and 
determination and her refusal to back down from any worthwhile 
challenge. She was one of the first students to integrate her local 
elementary school in McDowell County. That was not easy. McDowell 
County is the most southern county in West Virginia and, in fact, most 
of it is south of Richmond, VA.
  She is the first in her family to attend college. That can only be 
admirable. That can only talk about sacrifice and determination in a 
close family unit, family values. She was the first African-American 
woman to serve as a circuit court judge in West Virginia.
  If confirmed today, she would, I proudly say, become the first 
African-American Federal judge in the history of West Virginia. 
Granted, the history of West Virginians is not as long as the history 
of New York. But it goes back to 1863, I would say to the Presiding 
Officer, and we are very proud of that.
  I would like to close by personally thanking Judge Berger and her 
family. Her dedication to her country and State means so much to me. I 
wish to see her confirmed. I am not a lawyer, but I have been in West 
Virginia a long time. I started as a VISTA volunteer. I know a good 
person when I see one.
  Her willingness to assume this important role speaks volumes about 
her character as a person and as a judge. I would like to thank 
President Obama for his leadership in nominating Judge Berger for this 
position. He could not have selected a more qualified person. I cannot 
wait for them to meet.
  Finally, I would also like to thank Majority Leader Reid, Minority 
Leader McConnell, Chairman Leahy, Ranking Member Sessions, and the 
whole Judiciary Committee for allowing us to move forward on this 
critical nomination by, I will have to say, a unanimous vote for 
forwarding her nomination.
  We can rest assured Judge Berger will serve with enormous honor and 
distinction, as her predecessor, the Honorable David A. Faber, served 
before her.
  I am proud and all West Virginians deserve to be proud and are proud, 
even if they have no idea what is going on right now, as one of our own 
premier legal minds and unwavering leaders continues to serve our 
Nation and the cause of justice.
  I yield the floor, and I ask unanimous consent that all quorum calls 
during the debate on the Berger nomination be equally charged to both 
sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Madam President, I know time has been reserved for 
Members to debate the confirmation of a district court judge in West 
Virginia. I certainly support that confirmation. It is interesting that 
there are not too many Senators coming to talk about this particular 
judge, even though there was a request that we reserve time on the 
floor in order to debate the nomination.
  I raise this because there are four nominees ready for confirmation 
to the

[[Page 25731]]

courts of appeal and six district court judges who are ready for 
confirmation, having been moved through the committee, who, for some 
reason, Republicans are now not allowing us to bring to the floor for 
confirmation. This is a deliberate effort to try to slow pace of the 
confirmation process of Federal judges appointed by President Obama.
  I think this is wrong, and people should understand it. In my own 
circumstance in Maryland, we have a judge who has been approved by the 
committee for the circuit court of appeals, Judge Andre Davis. A 
hearing took place in April of this year. The Judiciary Committee 
reported out his confirmation by an affirmative vote of 16 to 3. This 
is clearly a nonpartisan recommendation. Judge Davis is highly 
respected by members of the bar in Maryland. He has 22 years' 
experience as a district court judge. He has handled all types of 
cases. He has been recommended as being fair and evenhanded and is 
ideally suited to serve on the appellate court. He will add diversity 
to the court, being the third African American, when he is confirmed, 
and he will be confirmed. There have been anonymous holds put on 
appellate court judges on a rotating basis and, in some cases, on 
district court judges, in an effort to slow down the process.
  When we get a chance to vote on his confirmation, whether it requires 
a cloture vote or not, he will be overwhelmingly approved, as he should 
be. He is well qualified to serve on the appellate court.
  I am somewhat perplexed. Floor time is valuable. Time has been set 
aside now to talk about the confirmation of a West Virginia district 
court judge. Yet I don't see too many Members rushing down to speak. 
Why haven't we brought up the other six district court judges ready for 
action? Why haven't we brought up the four appellate judges, if there 
is a desire to debate, so we have time now. Let's debate the issue. If 
there is a need for a vote, let's determine how much time is necessary 
and then let's get a vote. If there is a sincere effort to filibuster, 
which I find regrettable, then notify the leadership. Let's schedule a 
cloture vote on these nominations.
  The bottom line is, this is an abuse of the rights of an individual 
Member of the Senate, and certainly it is wrong for us to hold up the 
confirmation of judges who are prepared to take on this public 
responsibility. There is a bill pending that would create new judges. 
Why don't we fill the current vacancies? Why don't we get these 
appointments to the floor and vote on their confirmations?
  I know in Maryland there is strong support for Judge Davis's 
confirmation. I hope we can work out arrangements and bring these 
nominations forward and carry out our responsibilities to vote up or 
down those who are nominated to serve on the Federal bench.
  I know there have been accusations made back and forth. I opposed 
several of President Bush's nominees to the court. In each case, I made 
it clear I was prepared to vote at any time. I never delayed 
consideration of those appointments, including those to the appellate 
court. They were brought forward, and we voted them up or down. All I 
am saying to my Republican friends is let's bring these nominations to 
the floor of the Senate; let's get a chance to vote on these 
nominations; let's not schedule time to talk about a district court 
judge and that person's confirmation, when in reality there has been 
very little interest shown in coming forward.
  I see the distinguished ranking member of the Judiciary Committee. He 
has been fair and has tried to work this out. I don't know what the 
issue is on his side on an individual Member objecting to other judges 
coming forward. I hope we will have a chance to bring forward other 
nominations so we may move forward with one of the principal 
responsibilities of a Senator, to act in the confirmation of Federal 
judges, to give advice and consent to the President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I rise to speak on President Obama's 
nominee to the district court for the Southern District of West 
Virginia, Judge Irene Cornelia Berger. The historic significance of her 
nomination should not be lost on anyone. If confirmed, she will be the 
first African American to serve on the Federal bench in the State of 
West Virginia. She has had a distinguished career. She has been a State 
judge for the last 15 years. Before that, she was a State prosecutor 
for 12 years and a lawyer for the Legal Aid Society. I enjoyed the 
dialogue we had during her confirmation hearing and was especially 
pleased to see her responses to the questions for the record. She 
indicated in those answers outright that she did not agree with the 
empathy standard President Obama has used, saying:

       A judge should apply the law to the facts of a case without 
     being influenced by sympathy or empathy.

  She further stated that it is never proper for a judge to indulge his 
or her own sense of empathy in deciding what the law means. I 
wholeheartedly agree and am pleased to be able to support her 
nomination. The President's nominations deserve deference, although we 
do have a constitutional responsibility to examine the nominees, to ask 
the tough questions, to support them when we can and to oppose them 
when that is the appropriate action.
  I commend Chairman Leahy on the pace of his hearings. Last week, the 
committee held its 16th judicial nominations hearing. But I wish to set 
the record straight about a few things. At this point in his 
Presidency, President Bush had nominated 60 judges, but only 22 
nominees had hearings. In contrast, President Obama has nominated only 
23 judges, including a Supreme Court nominee, which took a great deal 
of our time, as it rightly should. Yet 16 of his nominees have received 
hearings.
  The Senate Judiciary Committee is doing its job. We are processing 
nominees at a reasonable pace, in a fair and bipartisan manner. There 
are those who say that Republicans are slow-walking nominees. I suggest 
that is a preemptive accusation to complain about something they think 
might happen. It is not happening, in my view. The raw numbers show 
that. Those same individuals also claim that the vacancy rate on the 
Federal courts is higher now and, therefore, we need to confirm more 
judges than we did during President Bush's first 2 years in office. 
However, the need to fill vacancies does not undercut the 
responsibility to properly vet those lifetime appointments.
  Furthermore, we can only process the nominees we have before us. 
There are currently 22 circuit court vacancies but only 9 nominees 
before the Senate. There are 75 district court vacancies and only 10 
nominees before the Senate. This chart shows that. These are the 
vacancies in blue and the red represents the circuit court nominees. 
These are the only nominations we have received so far. To date, 
President Obama has announced a total of only 23 nominees, one of which 
was a Supreme Court nominee. By this time, the Bush administration had 
sent the Senate 60 nominees, almost three times as many.
  Over the past few weeks, I have heard the chairman of our committee 
come to the floor and state that the pace of confirmations is not 
acceptable. I wish to point out a few numbers to those who now say 
Democrats confirmed a significant number of President Bush's nominees. 
As I told the chairman, I hate to get into this. We have been doing 
this for a number of years, but I am not going to remain silent while 
the record is distorted. We need to talk about perspective, and if we 
are going to continue to have tit-for-tat, I will be down here to 
explain the other side of the question.
  President Bush had fewer nominees confirmed than any two-term 
President in modern history. President Clinton had 377 confirmed; 
President Bush only got 326. President Clinton was also able to confirm 
two Supreme Court nominees. Under the Bush administration, the 
Democrats held up qualified nominees for years in some cases, denying 
an up-or-down vote even though a majority of the Senators were ready 
and willing to confirm.
  There are those who say the Republicans are filibustering nominees, 
and to them, I say that is not correct. A

[[Page 25732]]

hold is not a filibuster. When a Member of this body has concerns about 
a nominee, they have a right to put a hold on that nominee. The 
majority leader has the prerogative to file cloture on that nomination. 
There were nominees that I have strongly opposed and have voted 
against, but I voted for cloture when the majority leader sought to 
bring up the nomination so the nominee would get an up or down vote. 
That is the way you overcome a hold.
  Madam President, how much time do we have remaining?
  The PRESIDING OFFICER. The minority has 15 minutes remaining.
  Mr. SESSIONS. I think most of us in this body who were here remember 
that soon after President Bush was elected in 2000, a group of well-
known liberal professors--Laurence Tribe, Marsha Greenberger, and Cass 
Sunstein--he is the one who has recently been appointed by President 
Obama to one of his administration posts who believes animals should 
have lawyers appointed for them--met with the Democratic leadership. 
The New York Times reported at that time that they proposed changing 
the ground rules of the confirmation process. They proposed that 
Senators consider a nominee's ideology. For the first time in the 
history of the country, they proposed that the burden be shifted to the 
nominee to somehow prove they were worthy of the appointment instead of 
having the Senate respect the presumptive power of the President to 
make the nomination and then object if there was a disagreement. This 
was a major change in the history of the Senate. It was done by the 
Democrats when we had a Republican President.
  It was clear to me then that as a result of that meeting, a majority 
of the Democratic Members of the Senate agreed. After the Democrats 
took control of the Senate a few months later when Senator Jeffords 
changed parties, the Senate confirmed only 6 of President Bush's 25 
circuit court nominees. Five nominees had bipartisan support, and two 
were prior Clinton nominees. President Bush renominated two prior 
Clinton nominees. They confirmed them, but only a few others were 
confirmed. Yet the majority of President Bush's first nominees 
nominated on May 9, 2001, waited years for confirmation.
  Priscilla Owen was nominated to the Fifth Circuit, a fabulous supreme 
court justice in Texas. It took 4 years for her to be confirmed. She 
was on the short list for the Supreme Court. She is a brilliant 
justice.
  Now-Chief Justice John Roberts was nominated at that time for the DC 
Circuit--one of the most brilliant Justices I have ever seen come 
before the Senate. It took two years for him to be confirmed, and he 
had to go through two hearings.
  Jeffrey Sutton, another brilliant nominee to the Sixth Circuit Court 
of Appeals, was confirmed but only after 2 years in 2003.
  Deborah Cook was nominated for the Sixth Circuit--it took 2 years to 
get her nomination confirmed.
  Dennis Shedd, nominated to the Fourth Circuit--it was a year and a 
half before he was confirmed.
  Michael McConnell, a brilliant lawyer--and so is Dennis Shedd, but 
McConnell is a real intellectual--for the Tenth Circuit, it took a year 
and a half before he was confirmed.
  Terrence Boyle waited almost 8 years, until his nomination lapsed at 
the end of President Bush's term. He never got a vote.
  Perhaps the most disturbing story was that of Miguel Estrada, who was 
a brilliant, outstanding, well-qualified consensus nominee. He was 
nominated to the DC Circuit on May 9, 2001. He waited 16 months just to 
get a hearing--16 months--only to be confronted with unreasonable 
requests for more information. After almost 2\1/2\ years in limbo and a 
protracted 6-month long filibuster battle, we brought his name up a 
number of times, and he was blocked by filibuster. Mr. Estrada withdrew 
his name from further consideration, and we remain baffled as to why 
such a fine nominee was treated so poorly. His character was attacked 
and his nomination was ultimately blocked for no reason other than the 
fact that some said he was so capable he would have been on the short 
list for the U.S. Supreme Court.
  I don't say all of this to say there is going to be payback. I do not 
believe in that. It is time for us to move forward with judicial 
nominees in the right way. I am saying this to set the record straight 
because I will not stand silent and have what is happening today be 
compared with the incredibly obstructive actions the Democrats took in 
early 2000.
  That said, this Senate, when I think of many of its Members, 
understands that it would be wrong for us to be a rubberstamp for every 
nominee. We have a constitutional duty to vet nominees. As a minority 
party, we have a duty to ask the important questions that may not be 
asked at other points in the process.
  During his campaign, President Obama pledged he would strive for a 
bipartisan administration, but the President has failed to put action 
behind those words in a number of instances. He has refused to 
renominate some of the noncontroversial consensus circuit court 
nominees who were not confirmed by the Senate in the last Congress, as 
President Bush did when he took office. For example, Glen Conrad had 
the support of his Democrat home State Senator. Yet he was never given 
a hearing before the end of the Bush administration. Peter Keisler had 
broad bipartisan support from lawyers and colleagues throughout the 
country, a brilliant and capable nominee, but never got a vote. He was 
denied a vote by the Democratic leadership. In addition, Mr. Keisler 
was praised in the Justice Department Inspector General's report, one 
that dealt with the danger of politicizing the Department of Justice. 
The IG examined it and praised Mr. Keisler because he spoke and acted 
in opposition to those who appeared to have allowed political 
considerations to play a role in hiring decisions. He focused on the 
candidate's qualifications. But rather than being rewarded for his 
courage, he fell victim to the very partisan wrangling he stood 
against.
  Now, I think President Obama chose to set an aggressive tone by 
nominating Judge David Hamilton, a former board member and vice 
president for litigation of the Indiana chapter of the ACLU, as his 
first circuit court nominee. Judge Hamilton's nomination is clearly 
controversial. It was only exacerbated by the rushed hearing schedule 
on his nomination. Indeed, I think it is fair to say he is outside the 
mainstream of even President Obama's nominees. Instead of embracing the 
constitutional standard of jurisprudence, Judge Hamilton has embraced 
this empathy standard, this feeling standard. Whatever that is, it is 
not law. It is not a legal standard. He has said that he believes a 
judge will ``reach different decisions from time to time . . . taking 
into account what happened and its effect on both parties, what are the 
practical consequences.''
  Judge Hamilton also appears to have embraced the idea of a living 
Constitution. In 2003, he indicated in a speech that a judge's role 
included writing footnotes to the Constitution. I am not aware that a 
judge has the power to write footnotes to the Constitution, which has 
been ratified by we the people of the United States of America.
  When Senator Hatch questioned him about these comments in a followup 
question, he retreated somewhat but then gave a disturbing answer in 
the next question about judges amending the Constitution or creating 
new rights through case law.
  This judicial philosophy has clearly impacted his rulings. He issued 
a number of controversial rulings during his time as a district court 
judge and has been reversed in some very significant cases. So that is 
why he is having difficulty on the floor of the Senate and has not 
moved forward.
  Yet the Democrats will not call up another nominee, Judge Beverly 
Baldwin Martin for the Eleventh Circuit, on whom everybody is prepared 
to vote.
  Andre Davis, whom we have heard about before, has been nominated to 
the Fourth Circuit. We have had a number of battles over the failure to 
fill some of the vacancies on that

[[Page 25733]]

court. President Bush submitted a number of nominations and couldn't 
get them up for a vote. For example, Judge Robert Conrad, Judge Glen 
Conrad, Steve Matthews, and Mr. Rod Rosenstein. Mr. Rosenstein was 
nominated to a seat designated as a judicial emergency on November 15, 
2007--the very seat for which Mr. Davis has now been nominated--and he 
was held up. These vacancies were basically maintained by our 
Democratic Senators from Maryland for 9 years. The ABA rated Mr. 
Rosenstein ``unanimous well qualified.'' He was unanimously confirmed 
as U.S. attorney for the District of Maryland. He held several 
positions in the Department of Justice under both Democrat and 
Republican administrations. But he waited 414 days for a hearing that 
never came. His nomination was returned in January of this year.
  In 2008, a Washington Post editorial stated that:

       Blocking Mr. Rosenstein's confirmation hearing . . . would 
     elevate ideology and ego above substance and merit and would 
     unfairly penalize a man who people on both sides of this 
     question agree is well qualified for a judgeship.

  So after a few weeks went by, the Democrats were already blaming the 
Republicans, saying they are not moving fast enough on Mr. Davis, who 
has some serious problems in his background, and I just have to say I 
am concerned about it. He has been reversed quite a number of times. 
But he certainly has had his hearing. He had a hearing 27 days after 
his nomination, and he was voted out of committee on a split vote just 
36 days later.
  There is no question that Mr. Davis is a good man, but his record is 
a cause for some concern. He has been reversed by the Fourth Circuit 
numerous times in cases where he misapplied the law, including six 
criminal cases where he threw out evidence that could have been used to 
help convict a criminal. He was reversed at least six times in cases 
that he had wrongly dismissed because there remained unresolved issues 
between the parties. He dismissed the case in its entirety and the 
parties had to appeal. Six times he was reversed at great expense and 
delay. If he didn't accurately assess the facts or apply the law in 
these more simple cases at the Federal trial court level--some of them 
are not so complicated; others are--is he qualified now to be on the 
Fourth Circuit? So these are the concerns we have.
  Mr. Chen, a U.S. magistrate, was recently nominated for the Northern 
District of California. He stated that he finds ``most rewarding . . . 
contributing to the development of the law via published opinion, 
especially if it comports with my view of justice.'' That is pretty 
nice if you can develop the law--in other words, make law and make sure 
it comports with your view of the law. A judge is supposed to be a 
neutral umpire. They are not supposed to use their moment on the bench 
to rewrite the law to make it say what they would like it to say. If 
they would like to write the law, let them run for Congress.
  Mr. President, Judge Chen made a number of speeches and statements 
about which I am concerned. I will not go into that today. But these 
are some of the nominees who are going to have some difficulty on the 
Senate floor.
  Most of the nominees, such as the one on whom we are about to vote, 
will go through in an expeditious manner. Too often a problem we are 
dealing with is that there is a philosophy out there--I don't think it 
is a legal philosophy but rather nonlegal--that it is legitimate for a 
judge to look outside the law in judging, and that it is legitimate for 
their personal policy preferences and those matters to impact their 
decisionmaking.
  We are talking about a lifetime appointment to the Federal bench. 
There is no opportunity to examine the nominees after they have been 
confirmed. They should demonstrate that they will not render rulings 
that go beyond the plain meaning of the law.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair and just say that I intend to support 
this nominee. I will conclude by saying that those of us in the 
minority intend to give these nominees a fair hearing and to allow the 
majority of them to have up-or-down votes promptly. But those we think 
should be objected to will have a difficult time.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. CARDIN. Madam President, I know my friend from Alabama mentioned 
the ongoing issues of filling the judicial vacancies. We can talk about 
individual cases, and I am more than happy to do that. But I think we 
need to look at the record, at the number of judges, the number of 
vacancies, and the record during the different administrations.
  There is a disturbing trend that is developing with the Republicans 
blocking President Obama's confirmations by inaction, by not allowing 
us to, in fact, bring those nominations to the floor for a confirmation 
vote.
  I am going to use two charts to point out the differences we have 
seen with Republicans using tactics to deny confirmation votes and the 
time during the years when President Bush made the appointments. During 
the Clinton years, we saw an increase in the number of vacancies that 
could not be brought to the floor for a vote. It reached 110 vacancies 
in the judicial branch at the end of the Clinton administration. The 
Democrats worked with the Republicans during President Bush's years, 
under times when Republicans were in control and when Democrats were in 
control of Congress. The number went down to 53 percent when President 
Bush left office. We are now up to 94. We are seeing a significant 
increase in the number of unfilled positions. Yet there are 
noncontroversial nominees who have been approved by the Judiciary 
Committee who have not been brought to the Senate floor.
  I will talk about the appellate court because we think it represents 
a deliberate effort to slow-walk the confirmation process.
  When President Clinton was in office, we saw an escalating number of 
appellate court judges who were delayed and not acted upon--doubling 
from 16 to 32 when President Clinton left office. We know the appellate 
court is where most of the appellate decisions will be made because 
very few cases go to the Supreme Court. These are critical judges.
  During President Clinton's years, the Republicans used every tactic 
they could to deny the confirmation of appellate judges. Look what 
Democrats did during President Bush, whether in the minority or 
majority. We not only reduced the number of vacancies on the appellate 
court, we brought it down--in 1 case, from 32 to 9. When President 
Obama took office, it was 13. It is now up to 21.
  There are four nominees who have been approved by the committee who 
are ready for action right now on the floor of the Senate. This is an 
abuse of the rights of the minority. We need to vote on these 
confirmations. The appellate courts need these judges. The district 
courts need these judges. We have, right now, over 10 judges ready for 
a vote on the Senate floor, none of whom I believe will require an 
extraordinary vote because I think they are basically without 
controversy.
  Let's get on with these responsibilities and bring these forward. 
These facts indicate that clearly there has been a deliberate effort, 
and it is not right. I ask my Republican friends to end this and let's 
bring up these matters for an up-or-down vote.
  With that, Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.


                           Health Care Reform

  Mr. KIRK. Madam President, as the Senate prepares to debate the 
critical reform of our Nation's health care system, I am privileged to 
stand at the Massachusetts desk from which the voice--that 
unmistakable, booming voice--of the most effective legislator of our 
time was heard throughout this Chamber that he loved for nearly a half 
century.
  The voice of Senator Edward M. Kennedy called out against injustice, 
denial of opportunity, and needless suffering of every kind. Sometimes 
with humor, sometimes with indignation, he spoke skillfully and 
tirelessly as a

[[Page 25734]]

champion of working families, the poor, the disabled, and those engaged 
in a constant struggle for economic and social justice.
  Of all the issues on which he led the Senate and our Nation, the one 
Ted Kennedy called the cause of his life was the battle for affordable, 
quality health care. He saw the need as universal--made real by 
experiences deeply personal. He was the father of three children who 
faced serious illnesses and received the finest health care in the 
world.
  He understood firsthand the anguish of a parent who learns that a 
child is gravely ill. He found it unacceptable that some Americans 
receive quality health care while millions of others do not.
  For almost 50 years, his voice thundered in this Chamber and across 
the Nation with a clear and compelling message: Affordable, quality 
health care must be a basic right for all, not a privilege for the few.
  In Senator Kennedy's own maiden speech in this Chamber, he noted the 
conventional wisdom that freshman Senators should be seen and not 
heard. But he felt compelled to speak out on the Civil Rights Act of 
1964 because it was the defining moral issue of that time.
  As the newest of freshman Senators, who is honored to stand briefly 
in his place, I have no doubt about my obligation to Senator Kennedy, 
to the values and friendship we shared, to the citizens of 
Massachusetts, and to the country we love. So I am grateful for this 
opportunity to speak out at another defining moment for our Nation, on 
what I and Senator Kennedy believe to be the moral issue of this time.
  At this moment, we are closer to realizing the long-held dream that 
all Americans have access to quality, affordable health care than at 
any time in our Nation's history. By seizing this moment, we will, at 
long last, put America on equal standing with other nations that long 
ago assured their citizens quality, affordable health care as a matter 
of right.
  Despite the urging of Republican and Democratic Presidents alike, 
from Theodore Roosevelt to Bill Clinton, the United States remains the 
only industrial Nation that has yet to guarantee health care for all 
its citizens.
  It has been 40 years since Edward Kennedy gave his first speech on 
this issue. In an address at the Boston University Medical Center, he 
declared the time had come to establish a national plan to provide 
affordable and quality health care for every American.
  Rough estimates at the time suggested 25 million were without any 
coverage. Today we have 46 million uninsured Americans.
  In the four decades since Ted Kennedy issued that challenge, despite 
the expenditure of trillions of dollars and a passing of a generation, 
millions of Americans worry each day whether their health insurance 
will be there for them and for their children. They fear their 
insurance company will drop them if they are sick or set limits on 
their coverage that will leave them destitute. They wonder if their 
insurance will be adequate and if they are but one serious illness away 
from bankruptcy.
  They ask why insurance companies are permitted to charge higher 
premiums for women than for men. They are afraid, if they lose their 
jobs, they will be unable to get new insurance because they have a 
preexisting condition. Worse, tens of millions of our fellow citizens 
go to bed each night praying their children will stay well because they 
have no insurance at all. They work hard, they play by the rules, they 
do everything possible to provide for their families, but they need 
every penny to put a roof over their heads and food on the table. In 
the end, they simply cannot afford health insurance.
  After decades of falling short of the mark, quality, affordable 
health care for all Americans is, at long last, within their reach. 
Thanks to the leadership of Senator Reid, Senator Dodd, Senator Baucus, 
and others, in combining the bipartisan work of the Health and Finance 
Committees, and thanks to similar work being done in the House of 
Representatives and the leadership and support of President Obama, we 
are closer than ever to fixing our broken health care system.
  Yes, there are issues yet to be resolved. In the days ahead, I, too, 
will advocate for a public option because we need to stimulate 
competition and reduce costs in the health care marketplace.
  I will also speak for the so-called CLASS Act, a voluntary, self-
funded, self-insured, deficit-reducing plan that will protect millions 
of Americans against the crushing cost of long-term services and 
support so necessary in their senior years.
  But as this debate moves forward, we who are privileged to serve in 
this historic body, on both sides of the aisle, have the opportunity 
and the obligation to take the long view, to put aside partisan 
politics and come together to seize this unique and critical moment in 
our history.
  Bipartisanship works for the people. Only 3 years ago, with Senator 
Kennedy's guidance, Democrats and Republicans in Massachusetts worked 
together to adopt a health reform plan approved by a Democratic 
legislature, signed by a Republican Governor, and implemented with 
essential support from a Republican President.
  The experience of Massachusetts was bipartisan. It has helped to 
shape the legislation this Senate will soon consider. Our national 
legislation draws ideas from both sides of the aisle and from all parts 
of the political spectrum. Similar to our Massachusetts reform, it will 
make a lifesaving and cost-saving difference for millions of Americans, 
whatever their station in life and whatever their political persuasion.
  It is regrettable that efforts for reform in the Senate and the House 
have been under assault by special interests that have a financial 
stake in our failing health care system. As part of that opposition, 
they have attacked the success of our reform in Massachusetts. But let 
me set the record straight.
  First, because of our bipartisan reforms, less than 3 percent of the 
Massachusetts population is without health insurance today, lower than 
any other State.
  Second, the most respected independent fiscal watchdog concluded that 
Massachusetts implemented its reform in a fiscally responsible and 
financially sustainable way.
  Third, unlike every other State, employer-based health insurance is 
increasing in Massachusetts.
  Finally, according to a recent statewide poll by the Harvard School 
of Public Health, 79 percent of the public, and practitioners in every 
sector of the Massachusetts health care system, including physicians, 
strongly supports our bipartisan reform.
  Let me quote a recent message from a Massachusetts doctor:

       You will be glad to know that I just saw the very last 
     uninsured patient in my panel of about 300 patients for whom 
     I am the primary care physician. He is a 62-year-old diabetic 
     electrician from Mattapan. He finally got his insurance last 
     month--with help of [the reform law], we are now finally 
     getting his eye exam, his blood work, and refilling all his 
     prescriptions.

  That is just one example of a substantial difference a bipartisan 
health reform measure has made in the lives of the people of the 
Commonwealth of Massachusetts. That is the kind of substantial 
difference bipartisan reform can make in the lives of people all across 
America.
  I am the 100th Member, the most junior Member of this distinguished 
body. But I am hopeful that a newcomer's perspective will be received 
as a constructive contribution to this debate.
  Let me be candid. At this moment, when American families are 
imperiled by economic hardship and uncertainty, it gives them no 
comfort to see the Senate so politically polarized over an issue that 
should be bringing us together on their behalf.
  The accelerating health care and health costs crises strike fear in 
the hearts of the average American family. These crises should not be 
dividing this Chamber; they should be uniting us. These crises do not 
discriminate in their impact on our constituents. They are the common 
fears of Republicans and Democrats, Independents and the

[[Page 25735]]

unenrolled, old and young, urban and rural, businesses large and small, 
workers organized and unorganized, the self-employed and the 
unemployed, married and single, straight and gay, and Americans of 
every ethnic or racial heritage.
  These are the people we are honored to represent. They expect us to 
work together in their common interests and, I submit, they deserve no 
less.
  Years from now, history will look upon this debate and record that 
this was our opportunity to act on a defining domestic obligation of 
our time. During the coming weeks, I hope each of us will take the long 
view, think beyond the politics of the day, and come together in good 
faith to do what is right for our people.
  When I accepted my oath of office a month ago, much was made of my 
being the 60th vote for health reform. This debate should not be about 
one party reaching 60 votes. It should be about 100 Senators reaching 
out to each other to reform a health care system that will better 
reflect the true values and character of our Nation.
  As this debate continues, we would do well to pause for a moment to 
hear Ted Kennedy's voice in the quiet of our hearts. You and I know he 
will urge us to seize this moment to come together in this common cause 
and to make sure, at long last, that all Americans will have access to 
the quality, affordable health care they have long deserved and now so 
urgently need.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Madam President, I congratulate my colleague from 
Massachusetts, who has made his first comments on the floor of the 
Senate, what is traditionally called a maiden speech, and what was for 
many years a speech that often took months, if not, in some cases, 
years for a Senator to make. The times have changed and, indeed, the 
issues have changed. Now Senators, by custom, address the floor much 
before that kind of time period has elapsed.
  Let me say I am glad that is the custom, and I am glad my colleague, 
Paul Kirk, is here to share in his ability to be able to present his 
values and the values of Ted Kennedy and Massachusetts to the Senate, 
with respect to the issue he talked about today.
  I cannot say that for many of us who sat here and listened to this, 
as we looked across the Senate at this desk, that there still is not an 
adjustment as we look there and do not see our friend Ted Kennedy but 
see, instead, the person who has been chosen to follow in his 
footsteps.
  I know Ted Kennedy would be both enormously proud and enormously 
pleased that Paul Kirk spoke the way he did today and chose to speak as 
he did about health care.
  Paul Kirk was in the Senate working for Ted Kennedy in 1969, when Ted 
Kennedy first took up the great cause of health care. It was no 
accident that he came to be here working for Ted Kennedy, though it was 
somewhat of an effort because Paul had chosen to work in the 
Presidential campaign of Robert Kennedy. When Robert Kennedy was 
assassinated, Paul felt there was not a place in politics for him, and 
so he stepped back for a moment. It took Ted Kennedy a considerable 
amount of personal persuasion and effort to give him a sense that 
working in the Senate, working with him was the best way to try to 
carry on. That was the beginning of an extraordinary working 
partnership. I think Paul worked with Ted Kennedy until about 1977 or 
so in the Senate, but he never stopped working with him as both a 
friend and an adviser. He went on to become the founder of the 
Presidential Debate Commission. He chaired the Democratic National 
Committee. He has chaired the Kennedy Library, and now he comes to us 
as an extraordinarily appropriate replacement, to the degree there can 
ever be a replacement--we all understand the difficulties of that--for 
our friend Ted Kennedy.
  I thank him for his words today. I thank him for his willingness to 
come and serve at a difficult time. I thank him for being willing to go 
through all the gyrations one has to go through to meet the standards 
of the Ethics Committee of the Senate to serve just, knowingly, for 
4\1/2\ months. That is a great statement both about his feelings about 
being chosen to fill the seat he fills but also about his commitment to 
public service.
  I thank my colleague for his comments about health care. He is 
absolutely correct; we are on the cusp of a historic choice in this 
country, and I think it is more than fitting that Paul Kirk, who knows 
Ted Kennedy's staff, who had such a close relationship with him, who 
shares his values so intensely, is here to be part of this vote.
  He is absolutely correct. While he is the 60th vote, it may change 
some of our ability to move or not move, the thought he expressed about 
our desire to have all Senators join in this historic moment and weigh 
in, in a way that permits more of them to take part is exactly what the 
Senate is about.
  I close by saying, as I looked across at Paul, I thought about this 
transitional moment, of his first speaking and following in the 
footsteps of Ted Kennedy from that seat and that desk. It reminds all 
of us that we all come and we go here. It gives us a sense of the 
timelessness, if you will, of this institution. It reminds us that 
while we do change and we come and go, this institution is here, the 
Congress is here, the country is here, the demands of the people are 
here, and good people keep coming here to try to meet those demands and 
live out the best values for our Nation.
  I congratulate my colleague for representing Massachusetts so 
effectively, for keeping faith with Ted Kennedy and this institution, 
and helping to remind us of the importance of the work ahead of us in 
the days ahead.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, next to the door of Senator Kennedy's 
old office--now Senator Kirk's office--is a small brass plaque that 
Senator Kennedy had mounted near the door with an old Gaelic greeting: 
Cead Mile Failte--100,000 welcomes. With his first maiden speech on the 
floor of the Senate, I extend to Senator Kirk, my colleague, 
officially, Cead Mile Failte, 100,000 welcomes to this great body. The 
fact the Senator would stand and speak to an issue of such enduring 
significance, not only to the Nation but to Senator Ted Kennedy, is 
entirely fitting.
  Forty-five years ago, Ted Kennedy gave his maiden speech on the floor 
of the Senate, addressing the moral issue of his time--the issue of 
civil rights. Over the years, he came to understand the issue of health 
care is an issue of civil rights. His son, Congressman Patrick Kennedy, 
tells the story when his dad was in the hospital recently recuperating 
from cancer, he would walk the wards. We can see him plodding along, 
going from room to room, talking to people about how they were doing 
and, more specifically, how they were paying for their medical care.
  Ted never stopped caring about not only the many people he 
represented in Massachusetts and around the Nation but around the 
world. During the time he served in the Senate, he extended the reach 
of civil rights and opportunity through health care, with Medicaid and 
Medicare and COBRA and children's health insurance and so many other 
things that he was a part of. I am honored the Senator is here today, 
as he has said, to be the voice and the vote of Senator Edward M. 
Kennedy. The question asked is: Will the circle go unbroken? With the 
Senator's speech today, it is clear it is unbroken; that the Senator is 
carrying on the fine tradition not only of Senator Kennedy but of so 
many people who were inspired by his words over the years.
  I congratulate my colleague on his maiden speech on the floor of the 
Senate.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Madam President, I simply wish to rise and acknowledge the 
wise words of a good man and a good Senator in the great tradition of 
Ted Kennedy.
  I thank the Senator, for his work, his commitment, and his 
dedication. With his help, we will complete the work Senator Kennedy 
started.

[[Page 25736]]

  I yield the floor.

                          ____________________