[Congressional Record (Bound Edition), Volume 155 (2009), Part 20]
[Senate]
[Pages 27788-27803]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF DAVID F. HAMILTON TO BE UNITED STATES CIRCUIT JUDGE FOR 
                      THE SEVENTH CIRCUIT--Resumed

  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 David F. 
Hamilton, of Indiana, to be United States Circuit Judge for the Seventh 
Circuit.
  The PRESIDING OFFICER. Under the previous order, there will now be 60

[[Page 27789]]

minutes of debate divided between the Senator from Vermont, Mr. Leahy, 
and the Senator from Alabama, Mr. Sessions.
  The Senator from Indiana is recognized.
  Mr. BAYH. Mr. President, I wish to begin by thanking our colleague, 
Chairman Leahy, for his leadership in this area. He has been a model of 
decorum and patience, and I am personally grateful for his leadership.
  My father, as my colleagues may recall, served for 18 years on the 
Judiciary Committee. I lack his patience and therefore never have, but 
I admire very much Senator Leahy and those who help shepherd these 
judicial nominations, which, unfortunately, are all too frequently 
unnecessarily contentious.
  Secondly, I note the presence--I am sure he will be speaking 
shortly--of our colleague, Senator Sessions. Although Senator Sessions 
and I have a disagreement over this nomination, we have worked well in 
many areas, and I look forward to collaborating with him in the future 
in those many areas where we do find ourselves in agreement.
  Today, I find myself in agreement with my friend and colleague from 
my home State of Indiana, Senator Lugar, who yesterday on this floor 
issued a compelling statement in support of the nomination of David 
Hamilton for the Seventh Circuit Court of Appeals. For all those 
Members of this body or those viewing us from afar who have questions 
about Judge Hamilton, I strongly recommend they read Senator Lugar's 
very eloquent statement in his behalf. He went through every suggested 
controversy point by point, debunking those who raised concerns about 
Judge Hamilton, and ended up by noting his 40 years of acquaintance 
with both the nominee and his family and his strong support for Judge 
Hamilton's nomination.
  I rise today to speak in favor of the nomination of Judge David 
Hamilton. I join with Senator Lugar to recommend Judge Hamilton because 
I know firsthand that he is a highly capable lawyer who understands the 
limited role of the Federal judiciary.
  In recent days, some of Judge Hamilton's critics have unfairly 
characterized his record and even suggested that his nomination should 
be filibustered. I rise today to set the record straight and hope my 
colleagues will join Senator Lugar and me in supporting this superbly 
qualified nominee.
  Before I speak to Judge Hamilton's qualifications, I wish to briefly 
comment on the state of the judicial confirmation process generally. In 
my view, this process has too often become consumed by ideological 
conflict and partisan acrimony. I believe this is not how the Framers 
intended us to exercise our responsibility to advise and consent.
  During the last Congress, I was proud to work with Senator Lugar to 
recommend Judge John Tinder as a bipartisan, consensus nominee for the 
Seventh Circuit. Judge Tinder was nominated by President Bush and 
unanimously confirmed by the Senate by a vote of 93 to 0.
  It was my fervent hope Judge Tinder's confirmation would serve as an 
example of what could happen when two Senators from different parties 
work together to recommend qualified, nonideological jurists to the 
Federal bench.
  I know President Obama agrees with this approach. His decision to 
make Judge Hamilton his first judicial nominee was proof that he wanted 
to change the tone and follow the ``Hoosier approach'' of working 
across party lines to select consensus nominees.
  On the merits, Judge Hamilton is an accomplished jurist who is well 
qualified to be elevated to the appellate bench. He has served with 
distinction as a U.S. district judge for over 15 years, presiding over 
approximately 8,000 cases. He is now the chief judge of the Southern 
District of Indiana, where he has been widely praised for his effective 
leadership. Throughout his career, Judge Hamilton has demonstrated the 
highest ethical standards and a firm commitment to applying our 
country's laws fairly and faithfully.
  In recommending Judge Hamilton, I have the benefit of being able to 
speak from personal experience, because he was my legal counsel when I 
had the privilege of serving as Indiana's Governor.
  If you ask Hoosiers about my 8 years as Governor, you will find 
widespread agreement that we charted a moderate, practical, and 
bipartisan course. As my counsel, David Hamilton helped me craft 
bipartisan solutions to some of the most pressing problems facing our 
State.
  He helped resolve several major lawsuits that threatened our State's 
financial condition. He wrote a tough new ethics policy to ensure that 
our State government was operating openly and honestly.
  In addition to his insightful legal analysis, I could always count on 
David Hamilton for his sound judgment and the commonsense Hoosier 
values he learned growing up in southern Indiana. Like most Hoosiers, 
David Hamilton is not an ideologue.
  During his service in State government, he also developed a deep 
appreciation for the separation of powers and the appropriate role of 
the different branches of government. If confirmed, he will bring to 
the seventh circuit a unique understanding of the important role of the 
States in our Federal system and will be ever mindful of the 
appropriate role of the Federal judiciary. He understands the 
appropriate role for a judge is to interpret our laws, not to write 
them.
  Despite Judge Hamilton's long record as a thoughtful, nonideological 
jurist, his critics have sought to portray him as an ``activist'' judge 
hostile to religion. I have no doubt these attacks come as a surprise 
to his father, the Reverend Richard Hamilton, who is the former pastor 
of St. Luke's United Methodist Church in Indianapolis.
  It is only in the upside-down, hyperpartisan world of Washington, DC, 
that the humble son of an Indiana pastor can be turned into a partisan 
zealot hostile to religion, which David Hamilton is not. To my mind, 
such outrageous attacks say more about the sad status of our judicial 
confirmation process than they do about Judge Hamilton.
  Some of Judge Hamilton's critics have even suggested his nomination 
reaches the level of ``extraordinary circumstances'' justifying a 
filibuster. This is a nominee jointly recommended to the President by a 
moderate Democrat and the Senate's senior Republican. If this 
nomination constitutes ``extraordinary circumstances,'' then that 
phrase has ceased to have any meaning whatsoever. I sincerely hope that 
all involved will agree to give Judge Hamilton the up-or-down vote he 
so clearly deserves. If not, I fear that filibusters will become 
routine regarding judicial nominees. That is not the way our Framers 
intended us to operate, nor the way that we should.
  On a personal note, I have known Judge David Hamilton for over 20 
years. I know him to be a devoted husband to his wife Inge, and a 
loving father to his two daughters, Janet and Devney. He is the nephew 
of former Congressman Lee Hamilton, a man whose integrity is beyond 
reproach.
  As someone who personally knows and trusts Judge Hamilton, I say to 
my colleagues he is the embodiment of good judicial temperament, 
intellect, and evenhandedness. If confirmed, he will be a superb 
addition to the Seventh Circuit Court of Appeals.
  I urge my colleagues to join me and Senator Lugar in supporting this 
extremely well-qualified and deserving nominee.
  Before I end, let me say a couple of additional things. David 
Hamilton has been subjected to a number of unfounded attacks, probably 
the most ludicrous of which is that he is anti-religion in general and 
hostile to Jesus Christ in particular. His father was a 40-year 
Methodist pastor. David Hamilton was baptized and married by his 
father. Before he served as a Federal district court judge, he placed 
his hand upon the Bible--the Old and New Testament alike--and pledged 
loyalty to our Nation and devotion to our laws. He is not hostile to 
religion or to Jesus Christ. That charge is unfounded.
  Likewise, it has been suggested that he is, in some way, soft on 
crime. A particular case has been cited involving child pornography. I 
find this to be

[[Page 27790]]

ironic since he sentenced the accused to the sentence required by the 
sentencing guidelines, not 1 day less. Judge Hamilton has had the 
responsibility of handing down 700 criminal sentences in his time on 
the bench. The Justice Department has appealed two--a mere fraction of 
1 percent. Judge Hamilton is not soft on crime.
  Finally, it has been suggested that Judge Hamilton is a judicial 
activist. A case in our State involving abortion rights has been cited 
in that regard. I find that to be ironic, as well, because the 
president of the Indiana Federalist Society, an organization not known 
for embracing activist judges, strongly endorsed Judge Hamilton's 
nomination, saying:

       I regard Judge Hamilton as an excellent jurist with a 
     first-rate intellect. He is unfailingly polite to lawyers and 
     asks tough questions to both sides, and he is very smart--to 
     the left of center, but well within the mainstream.

  That is the position of Geoffrey Slaughter, president of the Indiana 
Federalist Society.
  I find this set of circumstances to be most unfortunate. David 
Hamilton is superbly qualified. I think this is, more than anything 
else, a comment on the sad state of our judicial nominating process, 
where this individual has been caricatured as out of sorts with 
reality, and if extraordinary circumstances are found with regard to 
David Hamilton, I am afraid that filibusters of judicial nominations 
will become routine on the floor of the Senate. That would not be good 
for this body or our country. I hope we don't go there today.
  Again, I urge my colleagues to join with me and Senator Lugar in 
strongly invoking cloture on this nomination and voting to confirm him 
to the court of appeals.
  I am glad to see Senator Sessions. I noted our many areas of 
agreement and it has been my pleasure working with the Senator from 
Alabama in the past--even as we have a difference of opinion about this 
nomination today.
  I ask unanimous consent that the time for any quorum calls be charged 
equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAYH. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. I thank Senator Bayh for his comments and admire his 
support for a friend, the nominee under consideration today. He is an 
excellent Senator who continues to strive for fairness and good policy 
in the Senate.
  Certainly, no one likes to oppose a nominee for the Federal bench. It 
is not a very pleasant thing to do. Having seen that process from both 
sides, I particularly don't relish the thought. But judges are seeking 
lifetime appointments to the Federal bench, and they would hold their 
office for life, without the ability of the public to review, even if 
the judge conducts himself in a way that is not appropriate. The 
American people may vote us out of office, and they do from time to 
time. They can vote their Governors out, as well as others. But Federal 
judges are not subject to that. Therefore, I think it is critically 
important that before we bestow that lifetime appointment, that power 
to define the meaning of words in our laws and our Constitution, we be 
certain that the nominee is a person who is committed, as the oath 
says, to serving under the Constitution and the laws and not above 
them.
  This nominee has some problems. Unfortunately, it is not totally an 
isolated matter. There is indeed a philosophy prevalent among many 
judges in law schools that has led to, I think, an abuse of office by 
certain judges. In recent years, they have developed an idea that the 
Constitution is not a changeless contract with the American people, but 
a ``living document,'' they say--in other words, a malleable instrument 
that they are free to massage, so that it is made to read as they would 
like it to read, or as they wish it had been written rather than doing 
their duty, which is to follow the document as it was in fact written.
  I believe this disrespects the Constitution, weakens the 
Constitution. If it is not respected by this judge today, what would 
prohibit a judge tomorrow with a different philosophy from violating it 
at that point? I think it is indeed a dangerous philosophy, one that 
Judge Hamilton has bought into. That is part of his approach to law.
  I do think judges must be committed to their oath and to the 
Constitution, and that they are not empowered to amend the 
Constitution, or write footnotes to it. Judge Hamilton has been 
nominated by the President for the U.S. Court of Appeals for the 
Seventh Circuit. He is now a Federal district judge. In that capacity, 
he is one step below the Supreme Court, and he would have considerably 
more power to define words in our laws and Constitution than he does as 
a district judge. During his campaign, the President promised to seek a 
bipartisan administration, but we have had a number of candidates, I 
think, for the judiciary, and efforts on matters such as health care, 
that demonstrate otherwise. Some time ago, a number of us--I think all 
40 Republicans--wrote and suggested that he re-nominate some 
outstanding candidates for the circuit court, who President Bush had 
submitted and were not confirmed, just as President Bush re-nominated 
some of President Clinton's nominees when he took office. We suggested 
it would be a good first step in showing that kind of commitment to 
openness. But the White House never even acknowledged that letter.
  With Judge Hamilton, his first judicial nominee, I think we have a 
problem. According to some press reports, Judge Hamilton's nomination 
was intended to send a pacifying signal to the Republicans, and they 
indicated--some of the Administration's spokesmen--that future nominees 
would be more ideologically provocative. I am at a loss to think that 
we would have someone with greater ideological commitment than Judge 
Hamilton. Perhaps we will see that in the future. I don't think we have 
seen that to date. I have voted for most of the President's nominees, 
but some I have not supported.
  To begin with, Mr. Hamilton was a board member and vice president of 
the ACLU chapter of Indiana. They take some very strong positions on 
constitutional questions that I think are unjustified. He signed onto 
that organization fully knowing what they stood for. He previously 
worked for and has been associated with ACORN, which is certainly not a 
mainstream organization but a real left-wing group. Investigations and 
reports of their activities have not made us feel good about ACORN, 
that is for sure.
  There is a theory that Judge Hamilton's views are outside the 
mainstream of President Obama's other nominees, the vast majority of 
whom have openly rejected the President's so-called empathy standard, 
and have stated that empathy should not play a role in a judge's 
consideration of a case. Associate Justice Sotomayor rejected this 
notion explicitly at her confirmation.
  However, instead of embracing the constitutional historic standard of 
jurisprudence that Justice Sotomayor said she believed in, one that 
says judges must faithfully adhere to the rule of law as written, Judge 
Hamilton has embraced openly the empathy standard which, I submit, is 
no standard at all. It is not a legal standard.
  In response to a follow-up question after his hearing, Judge Hamilton 
said empathy was ``important in fulfilling judicial oaths.'' He further 
stated, and this was in answer to a question, I believe, by Senator 
Hatch--he further stated:

       A judge needs to empathize with parties in the case, 
     plaintiff and defendant, crime victim and accused defendant, 
     so that the judge can better understand how the parties came 
     to be before the court and how rules affect those parties and 
     others in similar situations.

  I disagree with that. It is a pretty significant disagreement, 
actually. Whenever a judge empathizes with a party, whenever a judge 
uses or allows his personal beliefs, biases, or experiences to inform 
or influence a decision in favor of one party, he would then 
necessarily disfavor the other party. Empathy directly conflicts with 
the judicial oath which requires judges to faithfully and impartially 
``administer justice without respect to persons, and do equal right to 
the poor and the rich . . . under the Constitution and laws of the 
United States.''

[[Page 27791]]

  Judge Hamilton has said 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.''
  But this is an outcome-determinative philosophy of law, and outcomes 
are to be considered by the legislative branch, the policymaking 
branch, when they pass the law. We pass laws and we do our best to 
figure out what impact they will have and how they should be enforced, 
and we draw the lines at this and that. It goes to a judge. Then a 
judge now is empowered to say: I know they wrote this, but I don't like 
the effect it is going to have on party A, so I am not going to enforce 
it. I don't want to be harsh. I don't want to be a strict 
constructionist. I believe I have the ability to empathize with the 
parties. The way I feel today I empathize with this party and not that 
party.
  You see, that is not law. It is not law in the great American 
tradition of law. It is more akin to politics. Judges put on robes, 
they take oaths, they conduct themselves--the judges I have known over 
the years--in every way possible to send a message that they follow 
their oath and they do their duty and they treat people fairly, without 
bias or prejudice or empathy. Is empathy not a form of prejudice for 
one party or another?
  I think this is a big deal. These are big issues, and I think Judge 
Hamilton's position is incorrect. He is a good person; I do not dispute 
that. But we are talking about whether he should be empowered to be an 
appellate judge, one step below the U.S. Supreme Court.
  His view of the role of a judge troubles me. In a 2003 speech he said 
the role of a judge includes ``writing a series of footnotes to the 
Constitution.''
  In explaining this answer to a question Senator Hatch submitted to 
him after the hearing, he wrote that he believes the Framers intended 
for judges to be able to amend the Constitution through evolving case 
law, in effect saying:

       Both the process of case-by-case adjudication and the 
     Article V amendment processes are constitutionally 
     legitimate, and were both, in my view, expected by the 
     Framers, provided that case-by-case interpretation follows 
     the usual methods of legal reasoning and interpretation.

  I think that is a pretty strong statement. He says the process of 
case-by-case adjudication and Article V amendment processes are 
constitutionally legitimate--in effect, constitutionally legitimate 
ways to alter the document.
  Article V is the amendment process. That is how we amend the 
Constitution. I am troubled by his statements. That was just recently 
when he submitted a written answer to questions. That is not a sound 
view of judging, in my opinion.
  I would say, indeed, it is the essence of an activist judicial 
philosophy. That philosophy has impacted a number of his rulings as a 
Federal district court judge. His rulings show a lack of appreciation 
for the popular will of the people, of the State and Federal 
Government, and the elected branches. In more than a few instances he 
has used his position to drive a political agenda, it seems clear to 
me. Some can say it is not. We all make our best judgment about those 
matters. I think in this case he has a political agenda that is guided 
by personal beliefs and not the rule of law.
  He has been reversed quite a number of times by the Seventh Circuit 
Court of Appeals, the very court for which he has now been nominated.
  I would like to next look at the Hinrichs v Bosma case. I do not 
contend, and it is not right to say, Judge Hamilton is hostile to 
religion. It does appear he is hostile to the free expression of 
religion in certain circumstances and has been reversed as a result of 
it.
  I want to be fair to him. In the Hinrichs case, he enjoined or issued 
an order to the speaker of the Indiana House of Representatives, 
telling the speaker that he cannot allow sectarian prayers, ruling that 
the prayers being said violated the Establishment Clause of the 
Constitution because many of the prayers expressly mentioned Jesus 
Christ. Yet in a post-judgment motion, Judge Hamilton permitted the use 
of Allah by a Muslim imam who was invited to pray at the legislature 
because he found there was ``little risk'' that such prayers ``would 
advance a particular religion or disparage others.''
  I don't think that is a sound legal approach. But that is exactly 
what he said. People can say he did not mean that. But that is what 
happened. Judge Hamilton concluded in that case:

       When government prayers are expressly and consistently 
     sectarian, i.e., when they express faith of a particular 
     religion, then the opportunity for prayers is being used to 
     advance a particular religion contrary to the mandate of the 
     Establishment Clause.

  I don't think that is accurate because the law is, indeed, difficult 
in this area. But this is one of the more dramatic rulings I have seen 
in this area of the law.
  In addition to prohibiting such sectarian prayers, as he defined it, 
Judge Hamilton held that the speaker of the house must advise any 
officiant who opens the legislature with a prayer that a prayer must be 
nonsectarian, must not advance any one faith, or disparage another, and 
must not use ``Christ's name or any other denominational appeal.''
  The Seventh Circuit initially denied the speaker's request for a stay 
of that injunction, finding that the ruling was supported by some 
precedent. However, after full briefing and oral argument, they 
reversed and remanded with instructions to dismiss, finding that the 
plaintiffs lacked standing.
  I would just note for my colleagues that every day this Senate opens 
with a prayer. We have a Chaplain on the payroll of the U.S. Government 
who walks up those steps and stands behind the Speaker's chair and 
opens the session with a prayer and periodically mentions Jesus's name 
in that process. So I don't know how we get to this. Nobody, I assume, 
would challenge what we do here--at least they have not done so 
effectively yet.
  In Grossbaum v Indianapolis-Marion County Building Authority, Judge 
Hamilton denied a rabbi's plea to allow a menorah to be part of a 
municipal building's holiday display. The Seventh Circuit unanimously 
reversed that erroneous opinion, finding that Judge Hamilton failed to 
acknowledge the rabbi's right to display the menorah as symbolic 
religious speech protected by the Constitution.
  As we know, in the Constitution's first amendment it says Congress--
us--Congress shall make no law respecting the establishment of a 
religion, or prohibiting the free exercise thereof. That is all the 
Constitution says about religion. It just as strongly prohibits 
limitations on free exercise of religion as it clearly prohibits the 
government from establishing a church and making it preferable over 
others.
  It is interesting. The results reached in these decisions are 
strikingly similar to the positions consistently advocated by the ACLU, 
the organization with which Judge Hamilton has been associated prior to 
becoming a judge.
  Judge Hamilton's problematic rulings are not limited to cases 
involving religion. Lawyers quoted in the Almanac of the Federal 
Judiciary describe him as one of the most lenient judges in his 
district in criminal matters. His rulings on the bench have lived up to 
that reputation.
  In the Rinehart case, Judge Hamilton, I think inappropriately, acted 
and used his opinion in the case to request clemency--that is either 
elimination of the penalty he imposed pursuant to the mandatory Federal 
guidelines, at least within that range--for a police officer who had 
pled guilty to two counts, not of seeing pornography or possessing 
pornography but producing child pornography. A 32-year-old officer had 
engaged in ``consensual''--consensual sex with two teenagers and 
videotaped the activity.
  In United States v Woolsey, the Seventh Circuit faulted Judge 
Hamilton for disregarding an earlier felony drug conviction in order to 
avoid imposing a life sentence on a repeat offender. He didn't want to 
do that so he ignored the prior conviction that would have called for 
that.
  In reversing his decision, the Seventh Circuit reminded Judge 
Hamilton that he was not free to ignore prior convictions, regardless 
of whether he deemed the penalty for recidivists to be appropriate.

[[Page 27792]]

  Judge Hamilton's most activist decision may be a series of rulings in 
A Woman's Choice v. Newman. Through the rulings in this case, Judge 
Hamilton succeeded in blocking the enforcement of an Indiana informed 
consent law for 7 years. In reversing, the Seventh Circuit court noted 
that Judge Hamilton had abused his discretion. This is how they 
described it.
  This is a strong condemnation, from my experience, as to how 
appellate judges deal with lower court judges who make errors. They 
know judges make errors from time to time. They just reverse it and try 
not to be too critical. But this is what they said in this case:

       For seven years Indiana has been prevented from enforcing a 
     statute materially identical to a law held valid by the 
     Supreme Court in Casey, by this court in Karlin, and by the 
     Fifth Circuit in Barnes. No court anywhere in the country 
     (other than one district judge in Indiana) has held any 
     similar law invalid in the years since Casey . . . Indiana 
     (like Pennsylvania and Wisconsin) is entitled to put its law 
     into effect and have that law judged by its own consequences.

  They were referring to Judge Hamilton. In other words, if the judge 
didn't like the consequences of it and if his empathy made him believe 
this was not a good policy, he is not empowered to do that. The 
legislature passed a constitutional statute that simply said: Before a 
person has an abortion, they must be given notice of what the 
ramifications are so they can be informed when they make their 
decision. Apparently, he didn't like that. For 7 years, through a 
series of rulings, he kept it from being enforced. This case is a 
blatant example of him allowing his personal views to frustrate the 
will of the people and the popularly elected representatives of the 
government of Indiana. The people of Indiana went through a lot as a 
result. There were multiple appeals and lawsuits and attorneys. They 
were forced to expend great sums of money to overcome what appeared to 
me to be obstructionism.
  Chief Justice Roberts said it best when he said judges should be 
neutral umpires, calling balls and strikes based on the law and the 
evidence. Unfortunately, Judge Hamilton disagrees with the idea that a 
judge should be a neutral umpire. This is what he said:

       Judges reach different decisions from time to time. In that 
     sense, the call is not was that a ball or a strike. But 
     taking into account what happened and its effects on both 
     parties, what are the practical consequences.

  We don't want a baseball umpire who says: If I call this a strike, 
that will be the third out and the game will be over. I believe, with 
all sincerity, these views represent a results-oriented, activist 
philosophy that is hostile to the great American role of a judge in our 
constitutional system. I believe it disqualifies him for elevation to 
the court of appeals.
  This is one of those extraordinary circumstances where the President 
should be informed of that fact by a vote of the Senate. That is why I 
will not be able to support cloture.
  It will be the first time I have voted against cloture in a matter of 
this kind. I take this seriously. I talked about it some yesterday. If 
we could reach an agreement with my colleagues, Senator Leahy and 
others, to not follow the filibuster rule, I think the Senate would 
probably be better. But under President Bush, some 30 filibusters 
against his nominees were effected. Eventually, we had a political 
brouhaha here for several years that culminated in a decision that the 
filibuster would be acceptable if you believed there were extraordinary 
circumstances justifying that against a nominee. This judge's history 
and background reach that level. That is why I will not be voting for 
him.
  I don't think we should abuse this policy. I think we would be better 
off if we did not. But that is what the Senate basically decided when 
the Gang of 14 reached their agreement in the midst of a debate, for 
those who said you shouldn't filibuster and for those who said you can, 
and they reached that agreement. I think that is probably the state of 
the situation in the Senate. Based on that standard, I will oppose 
cloture.
  I yield the floor.
  Mr. HATCH. Mr. President, today the Senate takes up the nomination of 
David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. 
This controversial nominee's record including his decisions, speeches, 
and testimony before the Judiciary Committee reflects an activist 
judicial philosophy that is inconsistent with the proper role of judges 
in our system of government. As a result, while I voted for cloture, I 
will vote against confirmation.
  Even with control of both the White House and Senate, and with the 
largest Senate majority in 30 years, Democrats are still complaining 
about the slow judicial appointment pace. But we have nominees for only 
19 of the current 99 judicial vacancies. Twenty-four of the 80 current 
vacancies for which there are no nominees are more than 1 year old. And 
yet one of the nominees we have received and who will have a hearing 
tomorrow would fill a seat on the U.S. district court that is not 
vacant at all.
  At this point in 2001, President George W. Bush had sent nearly twice 
as many judicial nominees to the Senate despite dealing with the 
aftermath of the 9/11 terrorist attacks and a Senate controlled by the 
other political party. And nominees to the U.S. district court this 
year have been confirmed nearly 15 percent faster than President Bush's 
district court nominees during the 107th Congress.
  Democrats have nonetheless accused the minority of engaging in 
filibusters. If the word ``filibuster'' is used anytime the Senate does 
not blindly and immediately rubberstamp nominees, then the word no 
longer means anything at all. Democrats have circulated their talking 
points to reporters and commentators, who in some cases repeat outright 
falsehoods. Last week, the Judiciary Committee chairman placed in the 
Record a commentary by a law professor claiming that there had already 
been cloture votes on three judicial nominees. The Congressional Record 
is supposed to be a nonfiction work.
  On the one hand, Democrats claim the Senate is not confirming 
nominees and then, on the other hand, complain that Senators actually 
must vote on them. This no doubt baffles many Americans, who probably 
think that voting is one of the things Senators come here to do. But 
the practice of using a rollcall vote to confirm norcontroversial 
judicial nominees was already firmly established, and not by 
Republicans. The percentage of district court nominees confirmed by 
rollcall vote during the administration of George W. Bush was 26 times 
higher than during the previous 50 years. You heard that right, 26 
times higher. And the percentage of those rollcall votes without any 
opposition skyrocketed as well. The majority today has no one to blame 
but themselves for forcing such changes in confirmation tradition and 
practice.
  If Republicans really wanted to obstruct President Obama's nominees, 
I suppose we could have followed the Democrats' example from 2001. 
Under Senate rules, pending nominations expire and return to the 
President when the Senate adjourns or recesses for more than 30 days. 
We routinely waive that rule to carry pending nominations over the 
August recess. But on August 3, 2001, Democrats objected to that 
traditional practice in order to send 45 judicial nominees back to the 
President. Some had been nominated literally the day before. Some had 
been nominated to life-tenured Federal courts, but others to term-
limited courts such as the U.S. Court of Claims or the District of 
Columbia Superior Court. It did not matter to my Democratic friends, 
they did anything and everything they could to keep nominees from any 
consideration at all, including inventing entirely new forms of 
obstruction.
  And then, of course, there were the first filibusters in American 
history used to defeat majority-supported judicial nominees. My 
Democratic friends invented that one too during the previous 
administration. Their scorched-earth campaign changed many long-
established confirmation traditions and practices. So it is little 
wonder that today, with such a controversial nominee before us, many on 
this side of the aisle feel justified in following the Democrats' 
playbook. I do not blame them for that. I voted for cloture today

[[Page 27793]]

because I continue to believe that the Constitution's assignment of 
roles in the judicial selection process counsels against using the 
filibuster to defeat majority-supported nominees. Democrats should not 
have dragged the Senate across that line, and I fear that doing so may 
have unalterably changed how this body fulfills its role in the 
judicial selection process. Yet, for now at least, I still believe that 
the Senate fulfills its advice and consent role best by voting up or 
down on nominees that have been reported to the floor. That is why I 
voted for cloture on this nomination.
  That said, I must vote against confirmation of this controversial 
nominee. Qualifications for judicial office include not only legal 
experience but also judicial philosophy. I define judicial philosophy 
as an understanding of the power and proper role of judges in our 
system of government. Judge Hamilton's activist record fails that 
standard.
  Turning to that record, Judge Hamilton has rendered a pattern of 
decisions that evidence a willful assertion of personal views over the 
requirements of the law. Now I know we will hear that only a fraction 
of Judge Hamilton's decisions as a U.S. district judge are 
controversial. Most of any judge's decisions make no waves and raise no 
flags. When he served in this body, President Obama himself said that 
only 5 percent of the Supreme Court's decisions are truly the hard 
cases, and this percentage may shrink with each step down the judicial 
pyramid. I need not recount the few cases that my friends on the other 
side found more than sufficient to oppose so many nominees in the past. 
The cases that matter are the ones that tell us what we need to know 
about a judge and his judicial philosophy. I know other Senators will 
be speaking about a number of these and I want to highlight two of 
them.
  In one notorious case, Judge Hamilton for 7 years blocked enforcement 
of Indiana's law requiring informed consent before a woman can obtain 
an abortion. The Supreme Court had 5 years earlier upheld a 
Pennsylvania informed consent law that the seventh circuit would later 
describe as ``materially identical'' to the one before Judge Hamilton. 
That was the precedent he should have followed. Instead, he turned a 
minor factual distinction into a constitutional difference and issued a 
preliminary injunction in 1995. Following the Supreme Court, the 
Seventh Circuit upheld a virtually identical Wisconsin statute in 1999, 
but Judge Hamilton also ignored that precedent and issued a permanent 
injunction in 2001 against the Indiana law. I do not see any way to 
explain his decisions in this case except as a willful assertion of his 
own opinion over what the law required. When the Seventh Circuit 
finally reversed him in 2002, it said that no court anywhere in America 
had done what Judge Hamilton had done.
  In another case, Judge Hamilton chose to ignore one of a defendant's 
prior drug convictions so that he did not have to impose a life 
sentence. In Judge Hamilton's personal opinion, a court in another 
state--where Judge Hamilton, of course, had no jurisdiction whatsoever 
should have set aside that earlier conviction and so he was simply 
going to ignore it. Mind you, even the defendant himself had not denied 
the earlier conviction, but Judge Hamilton was still going to 
substitute his own judgment. In one of the most stunning statements I 
have ever read in a judicial opinion, Judge Hamilton wrote that he 
``ought to treat as having been done what should have been done.'' In 
other words, he would not let the law, the facts, rulings of other 
courts with proper jurisdiction, or anything else stand in the way of 
how he wanted things to be. That is perhaps the ultimate mark of the 
activist judge, driven by results and finding whatever means necessary 
to get there. When the Seventh Circuit reversed Judge Hamilton, it 
cited its own precedents that Judge Hamilton should have followed and 
concluded: ``Furthermore, we have admonished district courts that the 
statutory penalties . . . are not optional, even if the court deems 
them unwise or an inappropriate response to repeat drug offenders.''
  A judge should not have to be told that statutory requirements are 
not optional. A judge should not have to be told that he must decide 
cases based on the law rather than on his personal sense of justice or 
his belief about what should have been done at other times by other 
courts. A judge who must be told that he has an activist approach to 
judging that, in my opinion, should not be rewarded with promotion to 
the federal appeals court.
  Those are just two of Judge Hamilton's decisions which I found fit a 
disturbing pattern of deciding cases based on his own views rather than 
the law. I also found that the rest of Judge Hamilton's record 
reflected the same activist view of judicial power. In speeches, for 
example, Judge Hamilton has endorsed the view that ``part of our job 
here as judges is to write a series of footnotes to the Constitution.'' 
He has said that those supporters to the equal rights amendment to the 
Constitution ``lost the battle but have won the war'' because the 
Supreme Court changed the Constitution in substantially the same way 
that the ERA would have.
  This latter view that judges may amend the Constitution through their 
decisions is particularly troubling. I asked Judge Hamilton about this 
statement in written questions following his hearing. Judge Hamilton 
stated that both the process of case-by-case adjudication and the 
article V amendment process are constitutionally legitimate means of 
changing the Constitution and both were expected by America's Founders. 
He is wrong on both counts. If judges may change the Constitution 
through their decisions, they literally can make the law they use to 
decide cases. The Constitution cannot control judges if judges control 
the Constitution.
  America's Founders flatly and explicitly rejected that view. In his 
farewell address, President George Washington said that if the 
Constitution must be changed, ``let it be corrected by an amendment in 
the way which the Constitution designates. But let there be no change 
by usurpation.'' By his own words, the Father of our Country disputed 
Judge Hamilton's assertion about the judiciary's proper role. In 
Marbury v. Madison, Chief Justice Marshall wrote that America's 
Founders intended the Constitution to govern courts as well as 
legislatures. This notion that constitutional amendments by judges are 
as legitimate as those by the people is completely inconsistent with 
the proper role of judges in our system of government but completely 
consistent with the activist approach evidenced by Judge Hamilton's 
decisions.
  Well, I have said enough here to indicate the basis for my opposition 
to this controversial judicial nominee. I regret that President Obama 
chose someone with such an activist judicial philosophy as his first 
judicial nominee. I had hoped that he would take a more balanced 
approach to judicial selection, choosing consensus nominees that most 
Senators could support. I hope the nominee before us today does not set 
a pattern to be followed in the future and I will vote against his 
confirmation.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I wish to respond to some of the things the 
distinguished Senator from Alabama has said. To call this the first 
filibuster of a judicial matter this year is not totally accurate. We 
have people who are confirmed unanimously after being blocked for month 
after month by the Republican side, who then says: But we didn't 
filibuster.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. LEAHY. Yes.
  Mr. SESSIONS. Will the Senator cite a single vote prior to this where 
this Senator has voted against cloture?
  Mr. LEAHY. That is not what I said. I am saying we have had several 
nominees who were approved, not only judicial but others, 
overwhelmingly--80, 90, 100 votes. They had to wait month after month 
because the Republican side would not allow us to even proceed to them 
by filibustering or threatening a filibuster. You have de facto de jure

[[Page 27794]]

filibusters. During President Clinton's time, the Republicans pocket-
filibustered 60 of President Clinton's nominees.
  I yield up to 5 minutes to the distinguished senior Senator from 
Pennsylvania.
  The PRESIDING OFFICER (Mr. Kaufman). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I have sought recognition to speak in 
favor of the nomination. Speaking candidly, perhaps bluntly, Judge 
Hamilton is a pawn in partisan political warfare. That is the long and 
short of it. This is the 90th filibuster in the past several months. 
This follows a pattern, regrettably, that goes back almost two decades, 
when both sides, Democrats and Republicans at various times, have 
engaged in filibusters against judicial nominees where there was no 
justification to do so. It occurred extensively during the Clinton 
administration. At that time, on the other side of the aisle, I 
supported many of President Clinton's nominees. It occurred during the 
Bush administration, when I chaired the Judiciary Committee, and there 
were repeated filibusters by Democrats against President Bush's 
nominees.
  At that time, this Chamber was almost torn apart with the ferocity 
and intensity of the partisanship, with serious consideration being 
given to what was called the nuclear or constitutional option, when 
there was serious consideration given to altering the traditional 
requirement of 60 votes to end a filibuster. There was a tactic devised 
to challenge the ruling of the Chair, which could be overruled by or 
upheld by only 51 votes, and thereby move the judicial nominees without 
the traditional 60 votes. Fortunately, sanity and tradition prevailed 
and we worked out a compromise with the so-called Gang of 14 to confirm 
some and to reject others. Now we find the pattern continues.
  It is my hope that at some point we can declare a truce, an 
armistice, and stop the partisan political warfare. The nomination of 
Judge Hamilton would be a good occasion to do that.
  Senator Lugar, in his mild manner, in a floor statement in support of 
the nomination, has said:

       The confirmation process is often accompanied by the same 
     oversimplification and distortions that are disturbing even 
     in campaigns for offices that are, in fact, political.

  Having worked with Senator Lugar in this Chamber for the better part 
of three decades, I have observed his modesty, his circumspection, and 
his understatement. But those soft words about oversimplification and 
distortions give a clue to what is going on today.
  Regrettably, this is part of a broader picture, a broader picture of 
partisan political warfare. On the major issues of the day, the 
stimulus package, not one Member of 170-plus in the House of 
Representatives, not one Republican Member was for the stimulus 
package. Only three Republicans in this Chamber would even talk to 
Democrats. In the House of Representatives, on comprehensive health 
care reform, only one Republican out of 170-plus stood in favor of the 
bill. He became a hero or, perhaps more accurately, an oddity. In the 
Senate, only one Republican in the Finance Committee would stand and 
vote in favor of reform. Is it any wonder why the Congress of the 
United States is held in such low esteem by the American public? Is it 
any wonder why approval ratings across the board are dropping in 
practically free-fall, with a dull thud, because the American people 
see what is going on in this Chamber and in the Chamber across the 
Rotunda and are, frankly, disgusted with it. They are sick and tired of 
seeing the partisan politics at play.
  A great deal has been said about the qualifications of David 
Hamilton. Beyond any doubt, he is well qualified for the job. During my 
tenure on the Judiciary Committee, some three decades, part of which I 
served as chairman, I have seldom seen a better qualified candidate. I 
am reminded of the objections raised by Democrats to Judge Southwick, 
picking a couple lines from a couple opinions. Fortunately, sanity 
prevailed and Judge Southwick was confirmed. This is an outstanding 
man.
  One additional note. His uncle is Lee Hamilton, the very 
distinguished former Member of the House of Representatives.
  I address all my colleagues: Let's call a truce. Let's end the 
partisan political warfare. Let's start with the confirmation of Judge 
Hamilton.
  Mr. LEAHY. I thank the distinguished Senator from Pennsylvania.
  I yield up to 4 minutes to the Senator from Michigan.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. I thank the distinguished chairman of the Judiciary 
Committee, not only for his commitment but his patience as he has had 
to labor through objection after objection, stalling tactic after 
stalling tactic, to fill these critical judgeships. On March 17, 
President Obama nominated his first judge to the Federal bench, David 
Hamilton, whose nomination the Republicans are now filibustering. He 
nominated him on March 17. Judge Hamilton is not a partisan judge. He 
has an excellent record. He has upheld the law. He has been an 
impartial umpire of cases before him. For 15 years, he has served with 
distinction on the Federal district court, and he has the strong 
support of his two home State Senators, a distinguished Republican and 
a distinguished Democrat. He has the highest rating from the American 
Bar Association. Yet the Republicans are still stalling his 
confirmation vote. Again, he was nominated on March 17.
  This fair and impartial judge is being blocked for no other reason 
than to stop us from filling a critical seat on the appeals court with 
President Obama's nominee.
  As we know, and as the distinguished Senator from Pennsylvania spoke 
about a moment ago, this is not a first. In fact, 90 times so far this 
year--I am going to have to get a bigger chart soon--90 times we have 
seen Republicans come to the floor and object in some manner to moving 
our country forward, to moving the people's agenda forward.
  Over and over again, we are seeing tactics to simply slow the Senate 
down, and a majority of these objections, as the Presiding Officer 
knows, have ended actually in unanimous votes once we have actually 
gotten through all of the process, all of the strategies, and actually 
gotten to a vote. Almost in every case, people have been confirmed 
overwhelmingly, if not unanimously, and the same is true with 
legislation.
  We are at a point where the stalling has to stop. We have two wars 
happening. We have the highest unemployment in a generation. We have an 
economy to worry about, financial reform to worry about, and certainly 
health care, which is about jobs, which is in front of us now.
  The time is now to stop. Every Senator has the right to vote yes or 
no on a nominee or on legislation. But 90 times--and counting--we have 
simply seen objections and stalling tactics to slow down the business 
of this country. I hope we are going to see that stop in the interest 
of everything we need to get done.
  I strongly support this nominee.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I ask the distinguished Presiding Officer 
to notify me when I have 3 minutes remaining.
  The PRESIDING OFFICER. The Chair will do so.
  Mr. LEAHY. Mr. President, today, the Senate finally turns to the 
Republican filibuster against the nomination of Judge David Hamilton of 
Indiana to the Seventh Circuit. Republican Senators who, just a few 
years ago, protested that such filibusters were unconstitutional. 
Republican Senators who joined in a bipartisan memorandum of 
understanding to head off the ``nuclear option'' that the Republican 
Senate leadership was intent on activating. Republican Senators who 
agreed that nominees should only be filibustered under ``extraordinary 
circumstances.'' Those same Republican Senators are now abandoning all 
that they said they stood for, and are instead joining together in an 
effort to

[[Page 27795]]

prevent an up-or-down vote on the nomination of a good man and a good 
judge, David Hamilton of Indiana.
  The American people should see this for what it is: more of the 
partisan, narrow, ideological tactics that Senate Republicans have been 
engaging in for decades as they try to pack the courts with 
ultraconservative judges. What is at stake for the American people are 
their rights, their access to the courts, their ability to seek redress 
for wrongdoing.
  I thank the distinguished Senator from Michigan for pointing out 
these 90 delays just in this year alone. In evaluating this nomination, 
the nonpartisan American Bar Association's Standing Committee on the 
Federal Judiciary unanimously rated Judge Hamilton ``well qualified,'' 
the highest rating possible. He has served as a Federal district Judge 
for 15 years and is now the chief judge in his district. His nomination 
is supported by the senior Republican in the Senate, his senior home 
State Senator, Senator Lugar, and by Senator Bayh. That is correct: 
Judge Hamilton has the support of both of his home state Senators, the 
longest-serving Republican in the Senate, and a well-respected moderate 
Democrat.
  Unlike his predecessor, President Obama has reached across the aisle 
to work with Republican Senators in making judicial nominations. The 
nomination of Judge Hamilton is an example of that consultation. Other 
examples are the recently confirmed nominees to vacancies in South 
Dakota, who were supported by Senator Thune, and the nominee confirmed 
to a vacancy in Florida, supported by Senators Martinez and LeMieux. 
Still others are the President's nomination to the Eleventh Circuit 
from Georgia, supported by Senators Isakson and Chambliss, his recent 
nominations to the Fourth Circuit from North Carolina, which I expect 
will be supported by Senator Burr, and the recent nomination to a 
vacancy in Alabama supported by Senators Shelby and Sessions on which 
the Judiciary Committee held a hearing 2 weeks ago.
  I remind those Republican Senators who endorsed the Memorandum of 
Understanding on Judicial Nominations in 2005 of what they wrote when 
there was a Republican President in the White House. How quickly they 
seem to forget. They said:

       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.
       We firmly believe this agreement is consistent with the 
     traditions of the United States Senate that we as Senators 
     seek to uphold.

  How easy it was for them to say at a time when we had a Republican 
President. Now we have a Democratic President who has done exactly what 
these Republican Senators recommended. He has consulted with home state 
Senators from both sides of the aisle regarding his judicial nominees. 
And yet Republican Senators still say: Whoops, no. We are going to 
stall. We are going to filibuster. We are going to make you wait 6 
months to get a nominee through, in one instance, who then got a 
unanimous vote.
  In the last administration, with a Republican President, they 
condemned filibusters of judicial nominations as ``unconstitutional,'' 
``obstructionist,'' and ``offensive.'' They issued a threat, though, to 
filibuster before President Obama made a single nomination. They wrote 
in a March 2 letter to the President:

       If we are not consulted on, and approve of, a nominee from 
     our states, the Republican Conference will be unable to 
     support moving forward on that nominee.

  Well, of course, they were consulted. The President, in his first 
nomination, went to the senior most member of the Republican Party, 
Senator Lugar, for his approval and his support. He ended up doing 
every single thing the Republicans demanded that he do, and their 
response was: Whoops, never thought you would do what we asked for. We 
are still going to filibuster.
  The American people and the Senate need to understand that Judge 
Hamilton was nominated with the support and strong endorsement of 
Senator Lugar, the longest-serving Republican in the Senate. At Judge 
Hamilton's hearing over 7 months ago Senator Lugar described Judge 
Hamilton as ``an exceptionally talented jurist'' and ``the type of 
lawyer and the type of person one wants to see on the Federal bench.'' 
He knows David Hamilton and said of him at his hearing:

       I have known David since his childhood. His father, 
     Reverend Richard Hamilton, was our family's pastor at St. 
     Luke's United Methodist Church in Indianapolis, where his 
     mother was the soloist in the choir. Knowing first-hand his 
     family's character and commitment to service, it has been no 
     surprise to me that David's life has borne witness to the 
     values learned in his youth.

  Senator Lugar gave a brilliant speech on the Senate floor just 
yesterday, speaking in favor of Judge Hamilton. I encourage every 
member of the Senate to review his well-considered statement in which 
he rebuts the thin, partisan attacks on Judge Hamilton and his record. 
As Senator Lugar said, a fair review of his judicial record ``will 
reveal that Judge Hamilton has not been a judicial activist and has 
ruled objectively and within the judicial mainstream.''
  Senator Lugar is one of the finest Senators to have ever served in 
the Senate. First elected in 1976, he is the longest serving U.S. 
Senator in Indiana history. He is a strong man with strong views, a 
conservative Republican. He is no one's shill.
  Instead of praising the President for consulting with the senior 
Republican in the Senate, the Republican leadership has doubled back on 
their demands when a Republican was in the White House. No more do they 
talk about each nominee being entitled to an up-or-down vote. That 
position is abandoned and forgotten. Instead, they now seek to 
filibuster this judicial nomination and engage is the very act that 
Republican leaders used to contend that they never do. They have also 
abandoned the new position they took only months ago when they 
threatened to filibuster if not consulted. We are forced to overcome a 
filibuster of this nomination despite the President's bipartisan 
consultation with Senator Lugar.
  When President Bush worked with Senators across the aisle, I praised 
him and expedited consideration of his nominees. When President Obama 
reaches across the aisle, the Senate Republican leadership delays and 
obstructs his qualified nominees.
  Today is November 17. By November 17 of the first year of George W. 
Bush's Presidency, the Senate had confirmed 18 district and circuit 
court judges. By contrast, once cloture is invoked and the Republican 
filibuster ended, Judge Hamilton will be just the seventh lower court 
nomination the Senate has considered all year. We achieved those 
results in 2001 with a controversial and confrontational Republican 
President after a mid-year change to a Democratic majority in the 
Senate. We did so in spite of the attacks of September 11; despite the 
anthrax-laced letters sent to the Senate that closed our offices; and 
while working virtually around the clock on the USA PATRIOT Act for six 
weeks. By comparison, the Republican minority this year has allowed 
action on only one-third that many judicial nominations to the Federal 
circuit and district courts as were confirmed by this date in 2001.
  Charlie Savage made this point in The New York Times this past Sunday 
when he wrote:

       By this point in 2001, the Senate had confirmed five of Mr. 
     Bush's appellate judges . . . and 13 of his district judges. 
     Mr. Obama has received Senate approval of just two appellate 
     and four district judges.

  David Savage of the Los Angeles Times wrote if even starker terms 
yesterday:

       So far, only six of Obama's nominees to the lower federal 
     courts have won approval. By comparison, President George W. 
     Bush had 28 judges confirmed in his first year in office, 
     even though Democrats held a narrow majority for much of the 
     year.


[[Page 27796]]


  This is not for lack of qualified nominees. There are eight judicial 
nominees, including Judge Hamilton who have been reported by the 
Judiciary Committee on the Senate Executive Calendar. Had those 
nominations been considered in the normal course, we would be on the 
pace Senate Democrats set in 2001 when fairly considering the 
nominations of our last Republican President.
  Another aspect of the Republican obstruction is its refusal to 
consider the nomination of Professor Christopher Schroeder to serve as 
the Assistant Attorney General for the Office of Legal Policy at the 
Justice Department. Professor Schroeder has been stalled on the Senate 
Executive Calendar by Republican objection since July 28 since it was 
reported by the Judiciary Committee without a single dissenting vote. 
Professor Schroeder is a distinguished scholar and public servant who 
has served with distinction on the staff of the Senate Judiciary 
Committee and in the Justice Department. He has support across the 
political spectrum.
  I can only imagine that the reason his confirmation is being delayed 
is part of the partisan effort to slow progress on judicial nominees. 
The Office of Legal Policy is traditionally involved in the vetting of 
those nominees. So when Republican Senators excuse their obstruction by 
suggesting that the President has not sent the Senate enough nominees, 
they are wrong on at least two counts. They have not allowed the Senate 
to act on the nominees he has sent, and they are delaying appointment 
of the Assistant Attorney General who contributes to that process.
  President Bush's first nominee to head that division, Viet Dinh, was 
confirmed 96 to 1 only 1 month after he was nominated, and only a week 
after he his nomination was reported by the committee. The three 
nominees to that office that succeeded Mr. Dinh--Daniel Bryant, Rachel 
Brand, and Elisebeth Cook--were each confirmed by voice vote in a 
shorter time than Professor Schroeder's nomination has been pending. As 
Charlie Savage wrote in The New York Times this weekend:

       In addition, no one has been confirmed as head of the 
     Justice Department's Office of Legal Policy, which helps vet 
     judges; Mr. Obama's nomination of Christopher Schroeder for 
     the position remains stalled in the Senate.

  As chairman of the Judiciary Committee, I treated President Bush's 
nominees better than the Republicans had treated President Clinton's. 
That effort has made no difference; Senate Republicans are now treating 
this President's nominees worse still. During the 17 months I chaired 
the Judiciary Committee in President Bush's first term, we confirmed 
100 of his judicial nominees. At the end of his Presidency, although 
Republicans had run the Judiciary Committee for more than half his 
tenure, more of his judicial nominees were confirmed when I was the 
chairman than in the more than 4 years when Republicans were in charge.
  Last year, with a Democratic majority, the Senate reduced circuit 
court vacancies to as low as 9 and judicial vacancies overall to as low 
as 34, even though it was the last year of President Bush's second term 
and a Presidential election year. That was the lowest number of circuit 
court vacancies in decades, since before Senate Republicans began 
stalling Clinton nominees and grinding confirmations to a halt. In the 
1996 session, the Republican-controlled Senate confirmed only 17 
judges, and not a single circuit court nominee. Because of those delays 
and pocket filibusters, judicial vacancies grew to over 100, and 
circuit vacancies rose into the mid-thirties.
  Rather than continued progress, we see Senate Republicans resorting 
to their bag of procedural tricks to delay and obstruct. They have 
ratcheted up the partisanship and seek to impose ideological litmus 
tests. If partisan, ideological Republicans will filibuster David 
Hamilton's nomination, the nomination of a distinguished judge 
supported by his respected home State Republican Senator, they will 
filibuster anybody. This is partisanship gone rampant.
  Senate Republicans are intent on turning back the clock to the abuses 
they engaged in during their years of resistance to President Clinton's 
moderate and mainstream judicial nominations. The delays and inaction 
we are seeing now from Republican Senators in considering the nominees 
of another Democratic President are regrettably familiar. Their tactics 
have resulted in a sorry record of judicial confirmations this year. 
There are more judicial nominees recommended to the Senate and sitting 
on the Executive Calendar awaiting consideration than the Senate has 
confirmed all year.
  Last week, the Senate was finally allowed to consider the nomination 
of Judge Charlene Honeywell of Florida, but only after 4 weeks of 
unexplained delays. She was confirmed without a single negative vote, 
88-0. The week before, the Senate was finally allowed to consider the 
nomination of Irene Berger, who has now been confirmed as the first 
African-American Federal judge in the history of West Virginia. The 
Republican minority delayed consideration of her nomination for more 
than 3 weeks after it was reported unanimously by the Judiciary 
Committee. When her nomination finally came to a vote, it was approved 
without a single negative vote, 97-0. The week before that the Senate 
was finally allowed to consider the nomination of Roberto A. Lange to 
the District of South Dakota. The Republican minority required 3 weeks 
before allowing consideration of that nomination after it was 
unanimously reported by the Judiciary Committee to the Senate. They 
also required 2 hours of debate before allowing the Senate to vote on 
that nomination. They, in fact, used less than 5 minutes of the time 
they demanded to discuss that nomination and that came when the ranking 
Republican on the Judiciary Committee spoke to endorse the nominee. 
That nomination had the support of both Senator Johnson and Senator 
Thune, a member of the Senate Republican leadership. Ultimately, Judge 
Lange's nomination was confirmed 100-0. That follows the pattern that 
Republicans have followed all year with respect to President Obama's 
nominations.
  Last week, the Senate finally debated the nomination of Judge Andre 
Davis of Maryland to a seat on the Fourth Circuit. He was confirmed 72-
16. Sixteen Republican Senators voted in favor of the nomination and 16 
were opposed. As Senators, they may vote as they see fit. What was 
wrong was that they delayed Senate consideration of that nomination for 
5 months.
  The obstruction and delays in considering President Obama's judicial 
nominations is especially disappointing given the extensive efforts by 
President Obama to turn away from the divisive approach taken by the 
previous administration and to reach out to Senators from both parties 
as he selects mainstream, well-qualified nominees. The President has 
done an admirable job of working with Senators from both sides of the 
aisle, Democrats and Republicans.
  Professor Carl Tobias wrote about President Obama's approach recently 
in a column that appeared in McClatchy newspapers across the country on 
October 30. He wrote:

       Obama has emphasized bipartisan outreach, particularly by 
     soliciting the advice of Democratic and Republican Judiciary 
     Committee members, and of high-level party officials from the 
     states where vacancies arise, and by doing so before final 
     nominations.

  He had it right when he wrote that the real problem lies not with 
President Obama or with his nominations but with the Republican Senate 
minority. They are the principle cause of the current, sorry record 
regarding Senate confirmation of this President's outstanding nominees.
  Federal judicial vacancies, which had been cut in half while George 
W. Bush was President, have already more than doubled since last year. 
There are now 98 vacancies on our Federal circuit and district courts, 
including 22 circuit court vacancies. There are another 23 future 
judicial vacancies already announced. Justice should not be delayed or 
denied to any American because of overburdened courts, but that is the

[[Page 27797]]

likely result of the stalling and obstruction.
  Despite the fact that Senate Republicans had pocket filibustered 
President Clinton's circuit court nominees, Senate Democrats opposed 
only the most extreme of President Bush's ideological nominees and 
worked to reduce judicial vacancies. This is not an extreme nominee. 
This is a nominee in the mold of Judge John Tinder, President Bush's 
nominee to the Seventh Circuit, also a well-respected district court 
judge in Indiana who was unanimously rated ``well-qualified'' by the 
American Bar Association. His nomination was supported by both Senator 
Lugar and Senator Bayh and was confirmed 93-0 just 84 days after the 
Judiciary Committee held a hearing on his nomination.
  When he testified in support of Judge Hamilton, Senator Lugar thanked 
Senator Bayh for ``the thoughtful, cooperative, merit-driven attitude 
that has marked his own approach to recommending prospective judicial 
nominees'' and his ``strong support for President Bush's nominations of 
Judge Tinder for the Seventh Circuit and of Judge William Lawrence for 
the Southern District of Indiana.'' I supported both of those nominees 
with the endorsement of both of Indiana's Senators and both were easily 
confirmed. This nomination should be no different.
  I hope that Senators now considering whether to even allow this 
nomination to be considered by the full Senate heed the advice of 
Senator Lugar, which he reiterated yesterday when he said:

       [I] believe our confirmation decisions should not be based 
     on partisan considerations, much less on how we hope or 
     predict a given judicial nominee will rule on particular 
     issues of public moment or controversy. I have instead tried 
     to evaluate judicial candidates on whether they have the 
     requisite intellect, experience, character and temperament 
     that Americans deserve from their judges, and also on whether 
     they indeed appreciate the vital, and yet vitally limited, 
     role of the Federal judiciary faithfully to interpret and 
     apply our laws, rather than seeking to impose their own 
     policy views.

  As other editorial pages across the country have already done, the 
Washington Post today urges Senate Republicans to reject the 
distortions of Judge Hamilton's record, and to heed Senator Lugar's 
``words of praise for Judge Hamilton's record, intellect and character 
and allow a vote, and then vote in favor of confirmation.'' I could not 
agree more.
  Mr. President, I ask unanimous consent that a copy of today's 
editorial be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From The Washington Post, Nov. 17, 2009]

                      Giving Hypocrisy a Bad Name

       During the Bush administration, Republicans decried 
     Democratic attempts to filibuster judicial nominees. Some 
     went so far as to label such filibuster attempts 
     unconstitutional and threatened to exercise the ``nuclear 
     option'' to ban the procedural tool in nomination matters.
       Yet now Republicans are threatening to filibuster in an 
     attempt to thwart confirmation of President Obama's first 
     judicial nominee, Indiana federal Judge David F. Hamilton. 
     The Senate is scheduled to vote on cloture Tuesday on Judge 
     Hamilton's nomination to the U.S. Court of Appeals for the 
     7th Circuit. The prospect of a filibuster is made all the 
     more ridiculous because Judge Hamilton has been rated ``well-
     qualified'' by the American Bar Association, enjoys the 
     support of both home state senators, including Republican 
     Richard G. Lugar, and even wins praise from the conservative 
     Federalist Society of Indiana.
       Sen. Jeff Sessions of Alabama, ranking Republican on the 
     Judiciary Committee, has distorted Judge Hamilton's record on 
     the trial court in an effort to rally the GOP caucus. For 
     example, Mr. Sessions, arguing that Judge Hamilton is too 
     liberal, cites a case in which Judge Hamilton struck down as 
     unconstitutional sectarian Christian prayers in the Indiana 
     state house but allowed those that referred to Allah. Mr. 
     Sessions points out that the decision was overturned by the 
     court of appeals that Judge Hamilton now hopes to join.
       But the senator fails to explain that Judge Hamilton 
     documented that 41 of the 53 invocations during the 2005 
     session of the Indiana House were given by Christian clergy; 
     nine were delivered by elected officials; one each was said 
     by a Muslim imam, a Jewish rabbi and a layperson. Such a 
     lopsided tally, Judge Hamilton reasoned, could leave the 
     constitutionally unacceptable impression that Indiana 
     lawmakers favored one religion above all others. Judge 
     Hamilton explained in his written opinion that the ruling did 
     not ``prohibit the House from opening its session with 
     prayers if it chooses to do so, but will require that any 
     official prayers be inclusive and non-sectarian, and not 
     advance one particular religion.'' Mr. Sessions also fails to 
     note that the 7th Circuit reversed Judge Hamilton on 
     procedural grounds and not because it disagreed.
       There are probably not the 40 votes needed to block Judge 
     Hamilton's nomination from reaching the floor. We hope that 
     Republicans in large numbers heed Mr. Lugar's words of praise 
     for Judge Hamilton's record, intellect and character and 
     allow a vote--and then vote in favor of confirmation. In this 
     instance, a vote for Judge Hamilton will be a vote to restore 
     much needed comity and integrity to the process--qualities 
     that the next Republican president will greatly appreciate 
     when his nominees are considered.

  Mr. LEAHY. Senator Lugar believes Judge Hamilton ``is superbly 
qualified under both sets of criteria.'' I agree. I urge the Senate to 
reject these efforts and end this filibuster with a bipartisan vote.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, how much time remains on this side?
  The PRESIDING OFFICER. The Senator has a minute and a half remaining.
  Mr. SESSIONS. All right. I will briefly say that for the first time, 
I believe, in the history of the Senate, a number of President Bush's 
nominees were systematically filibustered. At 30 different times, 
cloture votes were required, and some failed, so the nominee did not go 
forward. That was unprecedented in the history of the Senate.
  Now my colleagues say the dispute over that eventually got settled by 
the fact that a group of 14 Senators said: We need a compromise, and 
this is the compromise. You should not filibuster a Presidential 
judicial nomination unless there are extraordinary circumstances.
  I opposed that. I have opposed filibusters before. But I do think 
since we have had no debate on this nominee to date, and this nominee 
has extraordinary statements in cases, and a record that indicates to 
me a lack of commitment to following the law--even though he is a 
person with whom I have no problem as to character and intelligence and 
ability, but I do not agree with his judicial philosophy--therefore, I 
believe this side cannot acquiesce to a precedent that says Democratic 
Presidents can get their judges confirmed with 51 votes; but if a 
Republican President nominates a nominee, he has to have 60 votes.
  The PRESIDING OFFICER. The time is expired.
  Mr. SESSIONS. So I think we have changed the rule, unfortunately. I 
think based on this situation, I will ask my colleagues not to support 
cloture.
  I yield the floor.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I am going to use some leader time now to 
speak on a matter that will shortly be before the Senate.
  As I indicated to you, the Chair, we will vote on advancing the 
nomination of a man named David Hamilton, a supremely qualified 
individual who is already a district court judge from the State of 
Indiana. He has been an outstanding trial court judge, and he has been 
nominated by President Obama to be a judge in the Seventh Circuit. But, 
as many have heard here over this last hour or so--and you might have 
guessed simply if you have followed the Senate over the last 2 years--
Republicans would rather we didn't vote on

[[Page 27798]]

this man, ever. They would rather that a critical seat such as this 
remain empty, but not because of who was nominated to fill that seat; 
Judge Hamilton's professional performance has been exceptional. His 
qualifications are stupendous. He is widely admired on all sides 
because of his stellar judicial performance and his fair judicial 
philosophy. Senators from that State, Democrat Evan Bayh and the 
Republican, the long-serving Senator Richard Lugar, strongly urge 
confirmation. He is a man who is respected.
  It is unusual that we would have the Republicans focus on one opinion 
he wrote dealing with religion. No one should ever second-guess this 
man's religious capacity.
  He served as the attorney for Gov. Evan Bayh. His father is a 40-year 
minister of a large Methodist Church in Indianapolis in which Judge 
Hamilton was baptized. Senator Lugar, the Republican senior Senator 
from Indiana, has called Judge Hamilton exactly the kind of person one 
would want to see on the Federal bench. He has called him brilliant, 
fair, and committed to the law. I agree.
  I have had the good fortune to serve in Congress with his uncle, Lee 
Hamilton, a longtime-serving Member of the House of Representatives 
from Indiana, the chairman of the Foreign Affairs Committee--really a 
good person. Being a good person and being involved in public service 
runs in that family, obviously, because of Judge Hamilton and Chairman 
Lee Hamilton.
  The Federalist Society of Indiana, a strongly conservative 
institution--and that is an understatement--acknowledges that Judge 
Hamilton is well within the mainstream of the law. The American Bar 
Association has rated him as high as anyone can be rated.
  The solitary decision of his, that is, Judge Hamilton, with which the 
Republicans claim to find fault is one in which Judge Hamilton stood 
for the separation of church and state, a principle protected by the 
first words of our Constitution's first amendment.
  The reason most Republicans object to advancing his nomination has 
nothing to do with Judge Hamilton himself and everything to do with 
pure partisanship. Such shortsightedness is the reason why, even though 
the Judiciary Committee approved Judge Hamilton back in early June--he 
was nominated in April--he has had to wait 166 days for this procedural 
vote and it has had to be forced upon the Senate. We have a lot of 
things to do here in this body. It is very unfortunate we had to file 
cloture on a judge.
  Judge Hamilton is far from the first victim of this partisan strategy 
to slow and stall the Senate. We have had that happen over 90 times 
already this year. In fact, Republican Senators have made a habit of 
objecting to the least objectionable nominees of President Obama's. The 
Senate has so far confirmed six judges for the court of appeals and the 
district court. Five of them were reported out of committee by voice 
vote. That means they were so obviously qualified that the committee 
didn't even feel the need to have a rollcall vote. When they reached 
the Senate floor, four of those five passed unanimously by votes of 88 
to 0, 97 to 0, 99 to 0, and 100 to 0. Yet Republicans forced us to 
wait, wait, and wait for all of those votes in the first place. They 
did so for no other reason than to waste the American people's time.
  I was stunned to hear my friend from Alabama say we haven't had 
enough time to debate this man. We have offered consent agreements, we 
have talked to everyone: How much time do you want? You can have it. We 
haven't had a debate on this nominee because we had to file cloture. 
The Republicans didn't want a debate on it. This is how the Republicans 
have forced the Senate to operate. It is not how it always works or how 
it should work. When President Bush was in office, as we have heard the 
distinguished chairman of the committee say on many occasions, the 
Democratic majority in the Senate confirmed three times as many 
nominees as we have been able to confirm in the same amount of time 
under President Obama.
  Let's be clear. We are not yet voting on whether to confirm Judge 
Hamilton for this important position. Our votes today simply indicate 
whether we believe the judge, Judge Hamilton, deserves an up-or-down 
vote before the full Senate.
  The votes of each Senator today will demonstrate whether he or she 
believes in the Senate's power as outlined in our Constitution to 
advise and give its consent to the President's nominations to the 
Federal bench.
  Going to law school was a very good experience for me. It was not 
like undergraduate school. It wasn't how much you could memorize. For 
those of us who endured law school, we did more than learn about 
obscure facts and learn rigid legal rules; we analyzed the abstract 
thinking behind our laws and the logic out of which our great judicial 
system grew. That is what law school is all about. That is what lawyers 
train to do--think abstractly lots of times.
  One of the very first principles I learned in law school--and I still 
have it in my mind--was following precedent. I believe in what we call 
stare decisis. It is how we maintain consistency in our court rulings, 
and it is a cornerstone of the common law we brought over from Great 
Britain when we became a country. Precedent is a simple notion: Once a 
rule has been established, we must apply that standard to all future 
cases in which the facts are similar to the first. This concept 
predates our courts, our Constitution, and even our country. Every 
aspiring lawyer studied it and every judge considers it when deciding a 
case.
  The future of that same legal system rests before the Senate today. 
In the Senate, as in the law, what we say in this Chamber and in the 
public record should set the precedent for our own actions. That is why 
the Parliamentarians who serve us so well understand the precedents. We 
ask them a question, and they follow the precedent.
  Here is what has been decided in the Senate previously. The record is 
replete with my Republican colleagues--including Members of the 
Republican leadership today and the Judiciary Committee--speaking about 
the solemn responsibility of the Senate to confirm judges. In other 
words, the record is replete with precedent.
  For example, my counterpart, the distinguished Senator from Kentucky, 
the Republican leader, has argued strongly that the present judicial 
nomination deserves a simple up-or-down vote. He reminded the Senate of 
that not long ago; in fact, it was May of 2005. He said that our job is 
to give our advice and consent and not, as he put it in May 2005, and I 
quote, ``advise and obstruct.'' I agree. Two years earlier, my 
distinguished counterpart said that filibustering judges--which is 
exactly what is happening right now at a record pace--is ``a terrible 
precedent.'' I sincerely hope the Republican leader heeds his own words 
and doesn't repeat the very obstruction he condemned in the past.
  The ranking member of the Judiciary Committee, the junior Senator 
from Alabama, has also rightly called the filibustering of judicial 
nominations ``obstructionism,'' and that is his word. He has said it is 
``very painful,'' and he has described it as ``a very, very grim 
thing.'' He is right.
  The Senator from Alabama went further to say the following:

       We ought to be pleased that a nominee has cared enough 
     about his or her country to speak out about issues that come 
     before the country.

  I agree. I share the belief that those who have chosen to serve our 
Nation must be able to get to work without delay. I hope the gratitude 
of the Senator from Alabama will be reflected in his vote this 
afternoon.
  The Republican whip, the junior Senator from Arizona, has expressed 
similar disgust with judicial filibusters such as the one we are seeing 
today. In November of 2003, he said:

       It is time to take politics out of the confirmation 
     process, give nominees the up-or-down vote they deserve, and 
     move the orderly process of justice forward.

  He, too, is right. I hope the Senator from Arizona will consider that 
orderly process when he votes on advancing Judge Hamilton's nomination 
a few minutes from now.

[[Page 27799]]

  The senior Republican Senator from Utah, who has served as chairman 
of the Judiciary Committee three separate times and still sits on that 
distinguished panel, also spoke out strongly against filibustering 
judges. He said in 2005 that doing so ``undermines democracy, the 
judiciary, the Senate, and the Constitution.'' And it does. I hope the 
Senator from Utah doesn't contribute to such affronts by voting no 
today.
  Another Republican Senator, the senior Senator from Iowa, who also 
serves on the Judiciary Committee, warned in 2003 that filibustering 
judges would lead to ``a constitutional crisis.'' I agree with him. I 
hope he helps us avert a filibuster and avoids a crisis by voting yes 
today for Judge Hamilton.
  Another Republican Senator, the junior Senator from Texas, who served 
on the Judiciary Committee and was a supreme court justice in Texas, 
said in 2006 he hopes the filibuster of judicial nominees ``should 
never happen again, and that all nominees of a President are entitled 
to an up-or-down vote.'' That was a few years ago. He called what 
Republicans are doing today ``an abomination'' and ``the most virulent 
form of unnecessary delay one can imagine.'' The same Senator also said 
on the Senate floor that he finds it ``simply baffling that a Senator 
would vote against even voting on a judicial nomination.'' I find it 
baffling, also. I sincerely hope the Senator from Texas will not delay 
us unnecessarily by supporting his party's filibuster. I could go on 
with a lot more quotes. It was interesting this morning. I listen to 
National Public Radio. There was a nice piece on there talking about 
what the Republicans are doing here, and it had the actual voices of 
the Senators. I cannot give the voices, but that was done on public 
radio, where they had the voices of the Senators saying things such as 
I have read today.
  I could go on and on. For example, another Republican Senator, the 
senior Senator from Kansas, has said that forcing supermajorities to 
confirm nominees--which is what a filibuster does--is inappropriate.
  Another Republican Senator, the senior Senator from Idaho--and by the 
way, his brother was a law school professor at Brigham Young 
University, where my son-in-law went to law school. My son-in-law has a 
wonderful mind, and he said he was the best professor he ever had and 
the smartest he ever had. Unfortunately, he died as a very young man. 
The senior Senator from Idaho said: ``It turns the Constitution on its 
head and begins a very dangerous precedent with regard to how the 
nominees for the judicial branch are treated by the Senate.''
  He talked about what a filibuster does. Again, my Republican friends 
are right. I hope the Senators from Idaho and Kansas will make sure 
filibusters still have no place in the confirmation process, and I hope 
they don't make such a practice precedent. They can do so by voting yes 
today.
  Every single Senator may vote either for or against the nomination as 
he or she sees fit. That right will never be in jeopardy. But that is 
not the issue before us today. The question before us is whether the 
President of the United States deserves to have his nominees reviewed 
by the Senate, as the Constitution demands he does.
  I feel so strongly about what took place a few years ago. We could go 
back and debate whether President Bush's nominations--whether he should 
have gotten more than what he did. We know he got hundreds of them. As 
I said on the floor, the point is, what the Republicans were going to 
do--a very slight majority--is they were going to do away with 
precedent, with filibusters in the Senate. I said at that time, if they 
did that and I ever came into a position of authority, I would never 
reverse it. I felt that strongly about it. If the Republicans would 
make us do what I think is wrong--that is, vote on cloture on all these 
nominations--it will take a lot of time and it is not fair. We should 
not do that.
  I only say to my friends that very few judges were held up by the 
Democrats when we were in the minority. Some were held up. Regardless, 
when I took this job in 1998--when I was elected to a leadership 
position--I said we should treat the Republicans as we would like to be 
treated, which is the Golden Rule. When we got the majority, I said the 
same thing. That is how I feel about it. Let's go by the Golden Rule in 
the Senate. Let's treat judicial nominees the way they would want them 
treated if the roles were reversed. I hope we can do that.
  That is not the issue before us today. The issue today is whether the 
President of the United States deserves to have his nominees get a vote 
up or down. The question before us is whether the President deserves to 
have his nominees reviewed by the Senate, as the Constitution demands 
he does.
  The question before the Senate is whether the nominees themselves 
deserve to be confirmed or rejected based on their judicial philosophy, 
their experience, moral turpitude, and whatever else people decide they 
don't like--their looks or they are too old or too young, whatever. But 
it should be on that person's qualifications as seen by the individual 
Senators.
  The question is whether Senators who publicly demand up-or-down votes 
when it is politically convenient will follow the precedents they set 
for themselves, even when it is not. The vote we are about to hold will 
give us that answer. I hope we will have a large vote on being able to 
proceed to this nomination, and I hope we don't get into this situation 
where, out of spite--because there has always been plenty of time to 
debate this man--postcloture we have to wait 30 hours to confirm the 
nomination. That would not look good for this body, and I hope it is 
not necessary.
  Mr. President, have the yeas and nays been ordered?
  The PRESIDING OFFICER. They have not.
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     David F. Hamilton, of Indiana, to be a United States Circuit 
     Judge for the 7th Circuit.
         Harry Reid, Herb Kohl, Sheldon Whitehouse, Richard J. 
           Durbin, Benjamin L. Cardin, Patty Murray, Mark Begich, 
           Kirsten E. Gillibrand, Mark R. Warner, Russell D. 
           Feingold, Al Franken, Roland W. Burris, Dianne 
           Feinstein, Patrick J. Leahy, Barbara Boxer, Charles E. 
           Schumer, Edward E. Kaufman.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of David F. Hamilton, of Indiana, to be a U.S. circuit judge 
for the Seventh Circuit, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Texas (Mrs. Hutchison).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 70, nays 29, as follows:

                      [Rollcall Vote No. 349 Ex.]

                                YEAS--70

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Collins
     Conrad
     Cornyn
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Gregg
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester

[[Page 27800]]


     Thune
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--29

     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Coburn
     Cochran
     Corker
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     McCain
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Hutchison
       
  The PRESIDING OFFICER. On this vote the yeas are 70, the nays are 29. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. CARDIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REED. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  Unanimous Consent Agreement--S. 1963

  Mr. REED. Mr. President, I ask unanimous consent that upon 
disposition of the nomination of Judge David Hamilton and the Senate 
resuming legislative session that the Senate then proceed to the 
consideration of Calendar No. 190, S. 1963, Veterans Health Care 
Initiatives, and that the bill be considered under the following 
limitations: that general debate on the bill be limited to 30 minutes 
equally divided and controlled between Senators Akaka and Burr or their 
designees; that the only amendment in order be a Coburn amendment 
regarding funding priorities which is at the desk and that it be 
printed in the Record once this agreement is entered; that debate on 
the amendment be limited to 3 hours, with 2 hours under the control of 
Senator Coburn and 60 minutes under the control of Senator Akaka or his 
designee; that upon the use or yielding back of all time, the Senate 
proceed to vote in relation to the Coburn amendment; that upon 
disposition of the Coburn amendment, the bill, as amended, if amended, 
be read a third time, and the Senate then proceed to vote on passage of 
the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment (No. 2785) is printed in today's Record under ``Text 
of Amendments.'')
  Mr. REED. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BURRIS. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURRIS. I ask unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Health Care Reform

  Mr. BURRIS. Mr. President, as I address this Chamber today, there is 
a broad consensus across the country that our health care system is 
broken. It simply doesn't work for Americans anymore. Everyone agrees 
that we need real comprehensive health care reform. In order to 
accomplish this, I believe we must include a strong public option to 
restore competition, cost savings, and accountability to the health 
care insurance industry. In fact, I have stated before that I will not 
vote for any reform measure that fails to include a strong public 
option.
  A few of my colleagues are still not convinced. Some have honest 
questions. But there are others who are not interested in winning this 
argument on the merits. A few of my colleagues across the aisle are 
trying to stop this Congress from passing any health care reform at 
all. Some of my distinguished Republican friends have said our 
proposals are simply too expensive. They say a trillion dollars is too 
high a price to pay for a better health care system.
  I beg to differ. We already pay far too much for health care. Our 
reform bill would reduce costs over the long term. It would allow 
consumers to hold insurance companies accountable for the first time in 
many years. It would restore real competition to markets that are 
currently monopolized by a few big corporations. It would accomplish 
all of that without adding to the budget deficit. Yet my colleagues 
continue to insist that health care reform would be too expensive. 
Despite the number of Americans suffering under our broken system, they 
want to talk about fiscal responsibility instead of health care reform. 
My Republican friends have simply lost their credibility when it comes 
to this issue. They say they would not support reform that will save 
lives and improve health outcomes for millions because it costs too 
much. Yet under a Republican President, they were willing to write 
bigger and bigger checks to benefit the wealthy.
  In 2001, when President Bush asked Congress to pass tax cuts that 
mostly helped the super rich, the total cost came to $1.35 trillion 
over 10 years. That is more than $300 billion more than our health care 
reform bill, and it provided significant benefits to far fewer 
Americans.
  More than half of the current Republican caucus was serving in the 
Senate at the time of this vote. Did they try to block the bill? Did 
they stand up and say: $1.3 trillion for the super rich--that is 
wasteful, irresponsible, and far too costly? No, they did not.
  When President Bush called, they answered. My Republican friends 
voted in favor of this massive spending program, even though it added 
more than $1 trillion to the deficit.
  Many of the same people now want to put the brakes on a deficit-
neutral health care reform bill designed to help millions of ordinary 
Americans.
  Later in 2003, just as this country began to spend hundreds of 
billions of dollars to conduct two wars, President Bush asked for yet 
another tax cut. This tax cut also benefited the richest of the rich 
and added $330 billion more to the deficit.
  But did my distinguished Republican colleagues urge fiscal 
responsibility? Did they demand that the President explain how he would 
finance the wars or balance the budget before they voted on another 
massive tax cut? No, they did not. Their vocal support for fiscal 
responsibility was nowhere to be found. Once again, they voted 
overwhelmingly for the second round of tax cuts.
  Yet as I address this Chamber today, a few of the same Senators are 
doing everything they can to stop us from passing health care reform.
  I would urge the American people to consult the record for 
themselves. The same voices that now oppose extending health care 
coverage actually supported spending significantly more money to pad 
the bank accounts of the richest people in this country.
  It is the same story for expensive programs such as Medicare Part D. 
More than half of the Republicans still in the Senate voted for $400 
billion of new spending back in 2003. Almost all of these distinguished 
Senators voted time and again to fund the ongoing wars in Iraq and 
Afghanistan, which have cost the American taxpayers more than $1 
trillion and far too many American lives.
  I do not mean to suggest every single one of these spending programs 
was a bad idea. But I would like to point out that when my Republican 
colleagues talk about ``fiscal responsibility,'' they are talking about 
an issue on which they have lost their credibility. They recklessly 
added trillions of dollars to the deficit under a Republican President, 
but today they oppose health care reform even though it will be paid 
for by cost offsets. Their actions simply do not match their words. 
They are placing cynical politics ahead of good policy.
  So I have a question for my Republican friends who have been Members 
of this Senate since 2001: If they supported almost $2 trillion of 
deficit spending for tax relief for the rich, then, I ask them, exactly 
how much are we allowed to spend for health care that will benefit 
millions of people across this country?
  Mr. President, 45,000 Americans die every single year because they do 
not have insurance and cannot get the

[[Page 27801]]

quality care they need. Without competition in the industry, insurance 
companies have raised premiums, denied benefits, and refused coverage 
to millions. So I ask my colleagues: How much is too much for this 
Congress to spend to save these lives?
  My colleagues like to talk about responsibility, so I put it to them 
that the only responsible course of action is to pass this health care 
bill, and pass it now. That is the reaction we need.
  Unfortunately, there are some in this Chamber who are not interested 
in addressing the issue of health care reform. There are some who do 
not want to have an honest, open debate on the subject. They want to 
kick the can further down the road, as our predecessors have done time 
and time again for the last 100 years.
  That would be the easy answer--to leave it to someone else to solve 
the difficult problem of health care reform after the problem has 
gotten even worse, to settle for the status quo or put a band-aid on a 
gaping wound and hope that future legislators will muster the political 
will that a century of lawmakers has lacked. There are some in this 
body who would settle for this.
  But I believe the American people deserve better. Especially in 
difficult times, they demand better of their representatives in 
Congress. So I say to my colleagues, as great leaders have said to us 
time and time again throughout our history: Let's seize this moment to 
do what is right, not what is easy. Let's summon the will to succeed 
where others have failed.
  It is time to deliver on meaningful health care reform. It is time 
for competition, cost savings, and accountability in the insurance 
industry. It is time to be honest with the American people.
  Friends, colleagues--Republicans and Democrats--this is no time for 
partisan games and empty rhetoric. This is time for action. Millions of 
Americans are counting on us to make health care reform a reality, and 
we must not let them down. I will say that again. We must not let them 
down.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, I oppose the nomination of Judge David 
Hamilton to be a Seventh Circuit Appeals Court judge. I have serious 
concerns about this nomination and will be voting not to confirm him.
  During his time as a Federal judge on the U.S. District Court for the 
Southern District of Indiana, Judge Hamilton has issued a number of 
highly controversial rulings and, more importantly, has been reversed 
in some very prominent cases. In my opinion, these decisions strongly 
indicate that Judge Hamilton is an activist judge who will ignore the 
law in favor of his own personal ideology and beliefs.
  For example, in one case, Judge Hamilton succeeded in blocking 
enforcement of an informed consent law for 7 years. In that case, 
called A Woman's Choice v. Newman, Judge Hamilton struck down an 
Indiana law requiring that certain medical information be given to a 
woman in person before an abortion can be performed. The Seventh 
Circuit overruled Judge Hamilton's decision, stating:

       For 7 years, Indiana law has been prevented from enforcing 
     a statute materially identical to a law held valid by the 
     Supreme Court in Casey, by this court in Karlin, and by the 
     Fifth Circuit in Barnes. No court anywhere in the country 
     (other than one district judge in Indiana) has held any 
     similar law invalid in the years since Casey . . . Indiana 
     (like Pennsylvania and Wisconsin) is entitled to put its law 
     into effect and have that law judged by its own consequences.

  That was the circuit court overturning Judge Hamilton. It seems to me 
that Judge Hamilton went out of his way to make his finding and 
actually block the Indiana law. That is not the proper role of a judge.
  In addition, Judge Hamilton has shown hostility against the 
expression of religion in the public square. In two prominent cases, he 
ruled against public prayer in the State legislature and religious 
displays in public buildings, and in both cases he was reversed. In the 
case of Hinrichs v. Bosma, Judge Hamilton enjoined the speaker of the 
Indiana house of representatives from permitting sectarian prayer. 
Judge Hamilton ruled that the Indiana State legislature was prohibited 
from starting its session with prayers, specifically those that 
expressly mentioned Jesus Christ, but that it would be permissible for 
a prayer to mention Allah. The Seventh Circuit overturned Judge 
Hamilton's decision in Hinrichs, and subsequently the Indiana house 
passed a resolution 85-to-0 opposing Judge Hamilton's ruling.
  Then in Grossbaum v. Indianapolis-Marion County Building Authority, 
Judge Hamilton ruled that a county could prohibit the display of a 
menorah in a nonpublic forum. The Seventh Circuit unanimously reversed 
Judge Hamilton, noting that the judge disregarded relevant Supreme 
Court precedent to reach his ruling and that he failed to recognize a 
rabbi's first amendment right to display the menorah as symbolic 
religious speech.
  Judge Hamilton also ignored clear statutory mandate so he could 
impose his own personal beliefs when sentencing criminal defendants. 
Example: In the 2008 case U.S. v. Woolsey, Judge Hamilton disregarded 
an earlier conviction in order to avoid imposing a life sentence on a 
repeat drug offender. The Seventh Circuit reversed the decision, 
admonishing Judge Hamilton, specifically stating that he was ``not free 
to ignore'' prior conviction because ``statutory penalties for 
recidivism . . . are not optional, even if the court deems them unwise 
or an inappropriate response to repeat drug offenders.''
  In another case, U.S. v. Rinehart, Judge Hamilton used his court 
opinion to request clemency for a police officer who pled guilty to two 
counts of producing child pornography. In this case, the police officer 
had engaged in and videotaped ``consensual'' sex with two teenagers.
  In addition, in writings and speeches, Judge Hamilton has indicated 
that he approves of the concept that judges should make policy from the 
bench. For example, he has embraced President Obama's empathy standard, 
a standard so radical that even the new Supreme Court Justice Sotomayor 
had to rebuke it at her confirmation hearings. In response to written 
questions for his confirmation hearing, Judge Hamilton answered this 
way:

       Federal judges take an oath to administer justice without 
     respect to persons, and to do equal right to the poor and to 
     the rich. Empathy--to be distinguished from sympathy--is 
     important in fulfilling that oath. Empathy is the ability to 
     understand the world from another person's point of view. A 
     judge needs to empathize with all parties in cases--plaintiff 
     and defendant, crime victims and accused defendant--so that 
     the judge can better understand how the parties came to be 
     before the court and how legal rules affect those parties and 
     others in similar situations.

  To empathize with the parties is not the proper role of a judge. 
Rather, the proper role of a judge is to apply the law to the facts in 
an impartial manner, and that is what we refer to as blind justice.
  Further, in a 2003 speech, Judge Hamilton endorsed the idea that the 
role of a judge includes ``writing footnotes to the Constitution'' 
through evolving case law. He said:

       Judge S. Hugh Dillin of this court has said that part of 
     our job here as judges is to write a series of footnotes to 
     the Constitution. We all do that every year in cases large 
     and small.

  Oddly enough, the last time I checked, it was the role of Congress to 
write laws, not the judicial branch. Judge Hamilton's personal bias has 
been noted by lawyers who practice before him. In fact, statements of 
local practitioners in the Almanac of the Federal Judiciary described 
Judge Hamilton as ``the most lenient of any judges in the district.'' 
Another quote: ``One of the more liberal judges of the district.'' 
Another quote: ``Goes out of his way to make the defendant 
comfortable.'' Another quote: ``He is your best chance for downward 
departures.''

[[Page 27802]]

Lastly, ``in sentencing, he tends to be very empathetic to the 
downtrodden, or to those who commit crimes due to poverty.''
  Contrary to how the White House has tried to characterize Judge 
Hamilton, I believe that the record amply demonstrates that Judge 
Hamilton is an activist judge. He has taken radical positions, and a 
number of his rulings indicate that Judge Hamilton will impose his own 
personal beliefs and values in cases. We should not promote an 
individual whose track record clearly demonstrates that he will carry 
out an outside-of-the-mainstream personal agenda on the Federal appeals 
court. For these reasons, I will oppose the nomination of Judge 
Hamilton to the Seventh Circuit. If he was going to serve on a circuit, 
as many times as he has been overruled, it would be more appropriate 
for him to be on the Ninth Circuit, where a lot of those decisions on 
appeal are overturned by the Supreme Court--about 9 times out of 10.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida is recognized.
  Mr. LeMIEUX. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             National Debt

  Mr. LeMIEUX. Mr. President, the clock has struck 12 on a $12 trillion 
debt. Like Cinderella when she was revealed when the clock struck 12, 
this Congress is now revealed--revealed for the problem it has in 
spending more than we can afford. We are being a body and an 
institution that spends money without thinking about the future of this 
great country. It spends the money of our children and our 
grandchildren.
  It took this country 193 years to spend a trillion dollars and to get 
a trillion dollars into debt. We are now $12 trillion into debt as of 
today. That $12 trillion is the equivalent of $40,000 per person, 
$107,000 per household. This is what American families are now 
responsible for, because unlike American families who sit around their 
kitchen tables and try to make ends meet, and unlike the States that 
have to balance their budgets, this Congress spends more than it has. 
There is no evaluation in this Congress about how much money is being 
taken in versus how much money we spend.
  Instead, we raised this year $1.4 trillion in debt, more debt in a 
single year than the past 4 years combined.
  Outside this Chamber, outside the main entrance, is a clock, called 
the Ohio Clock--the fabled clock that has been in this institution for 
more than a hundred years. It stands there to tell the time. I suggest 
that standing next to that clock should be the debt clock to remind the 
Members of this Senate, and perhaps our friends in the House, that we 
are spending money we cannot afford to spend, and it is risking the 
future of our children and grandchildren.
  As you know, I have three small boys, Max, Taylor, and Chase, 6, 4, 
and 2, and a baby on the way. We worry for their future--just like 
Americans across this country and my fellow Floridians are worrying for 
the future of their children. How can we afford this and continue to 
spend more than we have?
  I have been coming to the floor weekly to talk about the various 
appropriation bills I have been voting on--and, frankly, voting 
against--because they spend more and more of the people's money and put 
this country further into debt.
  Today, we have marked this occasion with $12 trillion in debt--an 
amount of money that is hard to fathom, an amount of money that is so 
large it is hard to comprehend. But we know that every family in 
America is now responsible--every household--for $107,000. That debt 
now rides upon their shoulders.
  In a week--perhaps even this week--Democrats in the Chamber are going 
to introduce a health care reform bill that is estimated to spend 
another $1 trillion. This bill will raise taxes, cut Medicare, and 
increase premiums--another large governmental program, when we cannot 
afford the programs we have. We should focus on spending the money we 
have, spending it more efficiently and effectively, before we go on to 
create a new program, a new bureaucracy, and more obligations than we 
can afford.
  The Congressional Budget Office estimates that the health care plan 
being brought forth by the Democrats in this Chamber will spend 24.5 
percent of GDP, 19 percent in revenue only. So we have 19 percent in 
revenue, but 24.5 percent of GDP, which is a huge unsustainable gap. It 
was recently reported that the deficit for October alone is $176 
billion--$26 billion more than estimates by economists. In fact, the 
debt increased by $40 billion just over this past weekend.
  Our spending is out of control. The Federal Government does not 
recognize it. This Congress cannot afford the programs it has, let 
alone the programs it wants. So I am here to sound the alarm. I could 
not let this day pass as we hit this $12 trillion mark in national 
debt.
  I look forward to coming back to the floor to explain again and again 
to the American people that this is a problem that must be solved. We 
cannot continue to spend our children's and grandchildren's future.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Tester). The Senator from Delaware is 
recognized.
  Mr. KAUFMAN. Mr. President, I ask to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        IN PRAISE OF ANN AZEVEDO

  Mr. KAUFMAN. Mr. President, I rise once more to honor an outstanding 
Federal employee.
  Next week, American families will gather around dinner tables in 
celebration of Thanksgiving.
  Thanksgiving is a time for coming together. In earlier ages, members 
of an extended family usually resided in close proximity to one 
another. Today, however, the typical American family is spread across 
the country, with members far in distance even if close in spirit.
  Americans of all backgrounds and from all walks of life will be 
travelling long distances to be with their loved ones. It is no wonder 
that Thanksgiving weekend is one of the busiest travel periods of the 
year.
  Tens of millions of us will be driving, flying, and taking trains or 
ferries next week. For some it will be stressful, for others exciting. 
Most, though, will do it without even realizing how much work goes into 
keeping American travelers safe.
  The Department of Transportation employee whose story I will share 
today has been instrumental in ensuring the safety of those who travel. 
But before I tell you about this outstanding public servant, I want to 
reflect on how important transportation is for America.
  From its humble beginnings, ours has been a Nation on the move. In 
George Washington's day, their mercantile spirit drove our founding 
generation to dig canals and clear roads across the Appalachians. 
Steamships and railroads fueled the expansion across the West and 
helped close the frontier. Air travel in the last century brought every 
corner of our 50 States ever closer and opened new opportunities for 
the growth of business and tourism.
  This march of progress in transportation technology has not been a 
smooth ride. When the railroads were new, train wrecks were fairly 
common. In fact, President-Elect Franklin Pierce was en route to 
Washington for his inauguration when his train derailed, tragically 
killing his 11-year-old son.
  Travel by ferry or steamship on our rivers and lakes was far from 
safe in those days. For pioneer families, roads were often impassible 
during wintertime, and many lost their lives just trying to get to the 
West. While air travel is the safest form of transportation in our day, 
it was not always the case.
  Making sure that our Nation's ``planes, trains, and automobiles'' are 
safe remains one of our highest priorities. My home State of Delaware, 
like

[[Page 27803]]

every other State--like Montana--depends on a top-notch transportation 
infrastructure to facilitate economic activity, moving people and goods 
across markets.
  Travel can and should be a safe and fun experience. No one should 
ever have to worry that the vehicles on our roads, rails, rivers, or in 
our skies are unsafe. That is where the hardworking men and women of 
the Department of Transportation excel. They set and enforce 
regulations upholding the strictest standards in transportation safety.
  The great Federal employee I have chosen to recognize this week has 
been a leader on safety issues at the Transportation Department's 
Federal Aviation Administration for 12 years.
  Ann Azevedo came to the department in 1997 with nearly two decades of 
experience in the private sector. Working from the FAA facility in 
Burlington, MA, when she first started at the FAA, Ann served as the 
risk analysis specialist for the Engine and Propeller Directorate.
  In her current role as chief scientific and technical adviser for 
aircraft safety analysis, Ann focuses on safety, risk management, and 
analyzing accidents. From the data she gathers, Ann is able to develop 
solutions to help prevent future incidents.
  Regularly representing the FAA at national and international air 
safety round-tables, Ann has become a respected voice among those 
engaged in risk management analysis. She helped write the training 
manuals for turbofan and turboprop aircraft used across the industry, 
and she continues to teach risk analysis at the FAA Academy.
  Ann holds a bachelor's degree in systems planning and management in 
applied mathematics and a master's of science in mechanical 
engineering. When she was once asked how she ended up in her chosen 
career field, Ann cited her love of math and an influential physics 
teacher in high school.
  Ann was awarded the Arthur S. Flemming Award for public service in 
2002 for developing safety solutions that resulted in a 64 percent 
decrease in the commercial aviation fatality rate between 1998 and 
2002. She also was honored as Distinguished Engineer of the Year by the 
American Society of Mechanical Engineering in 1996.
  Her work, and that of all her colleagues at the FAA and other 
Transportation Department agencies, helps ensure that travel in our 
country continues to be as safe as possible.
  Most importantly, they facilitate the smiles of those arriving safely 
at a journey's end and seeing their loved ones for the first time after 
weeks, months, or even years apart.
  That remains a central element of Thanksgiving, and I hope all 
Americans will join me in thanking Ann Azevedo and all the men and 
women of the Department of Transportation for their hard work keeping 
American travelers safe.
  They keep us, whether on the road, on the rails, at sea, or in the 
sky, moving ever forward.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. MURRAY. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________