[Congressional Record (Bound Edition), Volume 156 (2010), Part 5]
[Senate]
[Pages 5895-5902]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF CHRISTOPHER SCHROEDER TO BE AN ASSISTANT ATTORNEY GENERAL

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The legislative clerk read the nomination of Christopher Schroeder, 
of North Carolina, to be an Assistant Attorney General.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. KAUFMAN. Mr. President, I rise today to express my support for 
Chris Schroeder's nomination to be Assistant Attorney General for the 
Office of Legal Policy in the Department of Justice.
  Before I go any further, I want to state for the record that Chris 
Schroeder is a long-time colleague and great friend. Not only did we 
work together for Senator Biden, but for the past 20 years we have co-
taught a course on the Congress at Duke Law School--a course that for 
many of those years was cosponsored by the law school and the Stanford 
School of Public Policy.
  Chris is currently the Charles S. Murphy Professor of Law and 
Professor of Public Policy Studies at Duke, as well as director of 
Duke's Program in Public Law.
  Chris was born in Springfield, OH, received his B.A. from Princeton 
University, a master of Divinity from Yale, and his J.D. from the 
University of California at Berkley, where he was editor in chief of 
the California Law Review.
  He is married to Katherine T. Bartlett, former dean and current A. 
Kenneth Pye Professor at Duke Law School. Chris and Kate have three 
wonderful children.
  During his legal career, Chris has excelled in private practice, 
government service, and academics.
  Following his graduation from law school, Chris practiced law in San 
Francisco, gaining valuable experience in a wide variety of both State 
and Federal practice.
  In 1979, he became a law professor at Duke, where he has been a 
respected and prolific scholar, an invaluable administrator, and a 
committed and effective teacher.
  He has authored and edited several books, including a leading 
casebook on environmental law, ``Environmental Regulation: Law, Science 
and Policy,'' now in its sixth edition.
  He also has published countless articles in law reviews and journals, 
on an impressive range of topics, including environmental law, 
federalism, Federal courts, executive and legislative power, and 
national security.
  Chris's teaching is just as broad and deep as his scholarship. Over 
the course of his career, he has taught environmental law, 
constitutional law, comparative constitutional law, administrative law, 
civil liberties and national security, Federal policymaking, the 
Congress, government, business and public policy, an environmental 
litigation clinic, toxic substances regulation, land use planning, 
water law, philosophy of environmental protection, property, and civil 
procedure.
  Chris is a true renaissance man. I can personally attest to the 
quality of Chris's teaching, having co-taught with him for 20 years. 
Here in the Senate, we have many former students doing excellent staff 
work on both sides of the aisle.
  Chris has also contributed his legal and policy expertise to 
practical problems affecting the health and safety of the community. He 
served on National Academy of Science and Institute of Medicine 
committees to evaluate the use of human intentional dosage studies by 
the EPA and the adequacy of the U.S. drug safety system.
  Duke has also recognized Chris's considerable administrative skills. 
In addition to serving as co-chair of the Center for the Study of the 
Congress, with me, and the director of Program in Public Law, Chris has 
chaired the school's appointments committee, served on the dean's 
selection committee, and served as a member of the university's 
judicial board.
  In the 1990s, while at Duke, he took several leaves of absence for 
positions in public service. As a result, he has considerable 
experience in government, which will stand him in good stead at the 
Office of Legal Policy.
  He has served in several capacities in the Senate, including as 
special nominations counsel and then he was the No. 1 staffer as chief 
counsel for the Judiciary Committee.
  He also held numerous positions in the Department of Justice, 
including counselor to the Assistant Attorney General of the Office of 
Legal Counsel,

[[Page 5896]]

Deputy Assistant Attorney General, and acting Assistant Attorney 
General.
  In short, Chris Schroeder has the experience, the intellect, and the 
judgment necessary to be a superb leader of the Office of Legal Policy.
  Just as important, he has the character and integrity to help the 
Attorney General continue to restore the public faith in the Department 
of Justice.
  The Office of Legal Policy, OLP, has a wide range of important 
responsibilities within the Department of Justice. Let me read from the 
description on the DOJ Web site:

       The major functions of the Office of Legal Policy are to:
       Develop strategies and programs to implement legislative, 
     programmatic and policy initiatives;
       serve as a liaison to the Executive Office of the President 
     and other agencies on policy matters;
       conduct policy reviews of legislation and other proposals 
     and support and coordinate Departmental efforts to advance 
     the Administration's legislative and policy agenda;
       assure policy consistency and coordination of Departmental 
     initiatives, briefing materials and policy statements;
       provide support and policy expertise in conjunction with 
     other components to implement effectively major departmental 
     and administration initiatives in the criminal and civil 
     justice areas; assist the President and the Attorney General 
     in filling all Article III and certain Article I judicial 
     vacancies; coordinate regulatory development and the review 
     of all proposed and final rules developed by all Department 
     components; To serve as liaison to the Office of Management 
     and Budget and other agencies on regulatory matters: Track 
     and coordinate departmental implementation of statutory 
     responsibilities and reporting requirements.

  In sum, OLP is responsible for developing the high-priority policy 
initiatives of the Department of Justice. The Assistant Attorney 
General for OLP serves as the primary policy adviser to the Attorney 
General. OLP is the place within the Department where critical long-
term planning gets done. OLP also handles special projects that 
implicate the interests of multiple Department components and 
coordinates the regulatory development and review of all proposed and 
final rules developed by the Department. Finally, OLP advises and 
assists the President and the Attorney General in the selection and 
confirmation of Federal judges.
  Chris's extraordinary career and exemplary character render him 
uniquely qualified to lead OLP. As we saw from his confirmation 
hearings in the Judiciary Committee back in June, Chris has excellent 
credentials and broad experience in law and government. He fully 
understands the special role at the Department of Justice and is deeply 
committed to the rule of law.
  He has broad support from lawyers of all political and judicial 
philosophies. Just as an example, A.B. Culvahouse, former White House 
Counsel to President Reagan, gave Chris a ringing endorsement, 
describing him as having ``the requisite maturity, experience, and 
confidence to work constructively across institutional, interest group, 
and party lines to advance the public interest.''
  Ken Starr was similarly enthusiastic in his endorsement, saying:

       Chris has a particularly keen and nuanced sense of what the 
     founding generation was seeking brilliantly to achieve: 
     balanced government. From both practical experience and 
     engaged scholarship, he understands deeply the appropriate 
     role of the coordinate branches.

  Before I conclude, I would like to give my colleagues a little better 
sense of Chris Schroeder outside of his professional life because I 
think his model character is something we should all bear in mind as we 
consider his nomination.
  Chris has deep roots in the Durham, NC, community. He and his wife 
Kate have been members of the Pilgrim United Church of Christ for 30 
years. This is the church in which Kate and Chris have raised their 
three children, and it has been an important part of their family life. 
Chris has been a member of every elected board or committee of his 
church. He has been the chairman of the fellowship committee several 
times--a job he cherishes because of the simple pleasures that come 
from providing good meals and hospitality at church events of every 
description. Chris has also taught Sunday school for over 20 years at 
Pilgrim, most often a Bible study class.
  Chris has also been a member of the board of directors of the Meals 
on Wheels program in Durham which supplies lunches to elderly and shut-
in members of the Durham community. Besides having served in a 
leadership position for Meals on Wheels, Chris and colleagues from the 
Duke University faculty drive one of the Meals on Wheels routes every 
Friday. They have been doing this for more than 20 years.
  Chris and his children have also been active in the CROP Walk, an 
annual event in Durham and many other cities around the country that 
raises funds for local as well as international food programs. Chris is 
proud of the fact that Pilgrim United Church of Christ is regularly 
among the leaders among churches its size in raising funds in the CROP 
Walk.
  In selecting Chris Schroeder, the President has chosen wisely. Based 
on our long association, I know him to have a piercing intellect, 
impeccable judgment, and unparalleled integrity. I am proud to call him 
my friend. I urge my colleagues to confirm him without delay.
  Mr. President, I ask unanimous consent that any time in a quorum call 
during the debate on the Schroeder nomination be charged equally to 
both sides.
  The PRESIDING OFFICER (Mr. Burris). Without objection, it is so 
ordered.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent that 5 minutes be 
set aside for the chairman during the debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KAUFMAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BURRIS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Kaufman). Without objection, it is so 
ordered.
  Mr. BURRIS. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Financial Regulatory Reform

  Mr. BURRIS. Mr. President, in early 1933, just after Franklin 
Roosevelt was sworn in as President, the Great Depression was at its 
worst. The American economy had been shaken to its core. Financial 
institutions had closed, people's life savings had evaporated, and no 
one knew where to turn. That is when the unthinkable happened: Much of 
the American commercial banking system collapsed.
  President Roosevelt and his colleagues in the House and Senate sprang 
into action. Congressman Henry Steagall and Senator Carter Glass, both 
Democrats, worked with the President to write sweeping reform 
legislation. They set out to get the economy back on the road to 
recovery. The resulting law--known as the Glass-Steagall Act of 1934--
helped to lay the foundation for sensible bank regulation in this 
country. It would come to define America's financial landscape in the 
decades that followed the Depression.
  Mr. President, it is in this spirit that I ask my colleagues to join 
me today in supporting major financial reform and making sure that the 
Volcker rule is included in our financial legislation. If we pass the 
bill that has been introduced by Senator Dodd, we can help prevent 
another economic crisis and reinstate some of the basic protections 
included in Glass-Steagall.
  Almost 80 years ago, this legislation established the FDIC, which 
still insures bank deposits--and it drew a sharp distinction between 
commercial banks and investment banks. In the wake of economic 
collapse, Congress recognized that these dueling roles often came with 
massive conflicts of interest. In some cases, this resulted in risky 
behavior. In others, fraud.
  So Glass and Steagall designed their bill to set up a barrier between 
commercial banks and investment banks. The law prevented these two 
activities from mixing and kept financial professionals honest and 
accountable. For

[[Page 5897]]

much of the next half century--as our economy recovered from the Great 
Depression and prosperity returned to America--the system worked just 
as it was intended.
  As a former banker, I can personally speak to the significance of the 
Glass-Steagall Act in helping to keep our financial system on an even 
keel. This important law was essential to the stability of our 
economy--right up to the moment when my Republican friends repealed 
it--a little more than a decade ago.
  In 1999, the Republican Congress decided there was no longer a need 
to keep commercial and investment banks separate, so they passed a bill 
that rolled back key portions of the Glass-Steagall Act. Unfortunately, 
President Clinton signed it into law, and with the stroke of a pen, the 
walls between commercial banks and investment banks were torn down.
  Almost overnight, commercial institutions started to move into this 
fresh territory. They started to underwrite CDOs and mortgage-backed 
securities. Then they began to trade them. Commercial lenders even 
created new investment vehicles, which bought these very same 
securities. Without the Glass-Steagall Act, it was a free-for-all.
  As soon as the regulations were removed, big banks swooped in without 
regard to responsible lending practices. Conflicts of interest sprang 
up everywhere. Fraud was allegedly committed by some of our largest and 
most respected institutions. Then, 2 years ago, our economy went into a 
massive downward spiral--a great recession from which we are still 
trying to recover.
  The repeal of Glass-Steagall certainly did not cause this financial 
crisis on its own. But many believe it was a contributing factor, and 
unless we can take action to close this regulatory gap, the absence of 
Glass-Steagall could expose our economy to major systemic risk in the 
future.
  So, today, as the Senate stands on the verge of considering major 
financial reform, I would urge my colleagues to reinstate some of these 
protections. We must prevent big banks from engaging in these 
irresponsible practices ever again. That is why I am proud to support 
the Volcker rule, which my friend, Senator Dodd, has included in his 
financial reform bill.
  This provision will prevent traditional banks from making private 
equity investments. It will stop them from running hedge funds. It will 
help keep them from placing bets on the market. As a key part of 
Senator Dodd's bill, the Volcker rule will essentially serve as a 
modernized version of the Glass-Steagall Act.
  It would stop short of reinstating the old law of 1933, but it would 
help to prevent fraud, discourage conflicts of interest, and keep large 
banks from engaging in reckless behavior. It would also allow us to 
help regulate mergers among our biggest banks so we can prevent the 
market from becoming too concentrated or incurring systemic risk.
  Mr. President, I believe each of these key components is a necessary 
part of any financial reform bill. That is why I am proud to join 
Senator Dodd, as well as President Obama, in supporting the Volcker 
rule. Colleagues, let's learn from the events of history. Let's impose 
fair and reasonable regulations so a handful of banks would not be able 
to undermine the American economy with a few foolish decisions. Let's 
pass a financial reform bill that includes the Volcker rule.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burris). Without objection, it is so 
ordered.
  (The remarks of Mr. Feingold and Mr. Leahy are printed in today's 
Record under ``Morning Business.'')
  Mr. LEAHY. Madam President, today the Senate will finally confirm 
Professor Chris Schroeder to lead the Office of Legal Policy at the 
Department of Justice. I say ``finally'' because he was nominated by 
President Obama nearly 11 months ago. Professor Schroeder was first 
nominated to this position on June 4, 2009. He appeared before the 
Senate Judiciary Committee last June. He was reported favorably last 
July, a year ago, without dissent from both Republican and Democrat 
members on the committee. But then he sat on the Executive Calendar for 
5 months, blocked by mysterious holds from the Republican side. Then, 
as the last session drew to a close, Republican Senators objected to 
carrying over Professor Schroeder's nomination into the new session, so 
it had to be sent back to the White House. The President had to 
renominate him. The President did that, to his credit. His nomination 
was reconsidered, reported favorably by the Judiciary Committee by a 
rollcall vote, with a majority of the Republicans voting for him. That 
was nearly three months ago.
  Professor Schroeder is a scholar and public servant who has served 
with distinction on the staff of the Senate Judiciary Committee and in 
the Justice Department and has support across the political spectrum. 
The Judiciary Committee has received letters of support for Professor 
Schroeder's nomination from Arthur B. Culvahouse, Jr., former White 
House Counsel to President Ronald Reagan; Ken Starr, former Solicitor 
General under former President George H.W. Bush; 11 former high-ranking 
officials at the Justice Department; and Dean David F. Levi of Duke Law 
School, where Professor Schroeder has taught for many years.
  Madam President, I ask unanimous consent to have those letters 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Letters of Support for the Nomination of Christopher Schroeder To Be 
           Assistant Attorney General, Office of Legal Policy

                         (As of April 21, 2009)


                  Current and Former Public Officials

       Arthur B. Culvahouse, Jr., Former White House Counsel to 
     President Reagan, 1987-1989.
       Joint letter from former Department of Justice Officials 
     [Eleanor D. Acheson, former Assistant Attorney General for 
     the Office of Policy Development; Walter E. Dellinger III, 
     former Assistant Attorney General for the Office of legal 
     counsel, former Acting Solicitor General; Jamie S. Gorelick, 
     former Deputy Attorney General; Randolph D. Moss, former 
     Assistant Attorney General for the Office of Legal Counsel; 
     Beth Nolan, former Deputy Assistant Attorney General for the 
     Office of Legal Counsel; H. Jefferson Powell, former Deputy 
     Assistant Attorney General for the Office of Legal Counsel, 
     former Principal Deputy Solicitor General; Teresa Wynn 
     Rosenborough, former Deputy Assistant Attorney General for 
     the Office of Legal Counsel; Lois J. Schiffer, former 
     Assistant Attorney General for the Environment and Natural 
     Resources Division; Howard M. Shapiro, former General 
     Counsel, Federal Bureau of Investigation; Richard L. 
     Shiffrin, former Deputy Assistant Attorney General for the 
     Office of Legal Counsel; Seth P. Waxman, former Solicitor 
     General].
       Kenneth Starr, Former Solicitor General, Duane and Kelly 
     Roberts Dean and Professor of Law.


                            Other supporters

        David F. Levi, Dean, Duke Law School.
                                  ____



                                         O'Melveny & Myers LLP

                                    Washington, DC, July 14, 2009.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Chairman Leahy and Senator Sessions: I write to 
     endorse the nomination of Christopher H. Schroeder of North 
     Carolina to serve as Assistant Attorney General for the 
     Office of Legal Policy.
       I am sure the Committee on the Judiciary is well aware of 
     Chris Schroeder's substantial record of academic 
     accomplishment as a chaired professor at Duke Law School and 
     of his distinguished public service with the Department of 
     Justice Office of Legal Counsel and with the Senate Judiciary 
     Committee. Perhaps less well known is Chris Schroeder's part-
     time private practice association with our law firm, 
     O'Melveny & Myers, from January 2002 to the present, the last 
     four years in an ``of counsel'' position. As Chair of the 
     Firm, I can attest Chris has provided exemplary legal 
     services to the Firm and its clients, while working on highly 
     complex legal matters. His capacity for keen analysis, his

[[Page 5898]]

     great maturity and judgment, and his ability to work in a 
     constructive and purposeful way with others, have impressed 
     both his colleagues and our clients.
       Chris Schroeder's experience as counsel to our firm adds 
     yet another dimension to his qualifications for office, 
     making Chris one of the rare individuals who has excelled in 
     academic law, in public service to both the legislative and 
     executive branches of the national government, and in private 
     practice. This diversity of experience and perspective will 
     serve the Justice Department and the country well if Chris is 
     confirmed as head of the Office of Legal Policy.
       From my time as White House Counsel to President Reagan 
     until now, I know how important it is to have senior Justice 
     Department office holders who not only are first-rate 
     lawyers, but also have the requisite maturity, experience and 
     confidence to work constructively across institutional, 
     interest group and party lines to advance the public 
     interest. I believe that Chris Schroeder will be one of those 
     leaders. I am pleased to endorse his nomination.
           Yours very truly,
                                        Arthur B. Culvahouse, Jr.,
     Chair.
                                  ____

                                                    June 23, 2009.
     Re Nomination of Christopher Schroeder to serve as Assistant 
         Attorney General.

     U.S. Senate,
     Committee on the Judiciary,
     Washington, DC.
       Dear Chairman Leahy, Ranking Member Sessions, and Members 
     of the Senate Judiciary Committee: We are all former 
     Department of Justice officials who worked closely with Chris 
     Schroeder when he served as a Deputy Assistant Attorney 
     General, and later Acting Assistant Attorney General, in the 
     Office of Legal Counsel in the 1990s. Many of us have also 
     known and worked with Chris in a variety of other settings. 
     Based on our broad range of experiences, we all offer our 
     enthusiastic support for Chris' nomination to serve as the 
     Assistant Attorney General for the Office of Legal Policy.
       Chris brings together a broad range of talents, experience 
     and perspective that make him an ideal candidate to lead the 
     Office of Legal Policy. First, Chris is a superb lawyer. He 
     is a distinguished scholar, with an expertise in public law 
     and policy. He has taught classes on constitutional and 
     administrative law, on civil liberties and national security, 
     and on the Congress. As acting head of the Office of Legal 
     Counsel, he grappled with some of the most difficult legal 
     issues in the executive branch and, in the course of doing 
     so, earned the broad respect of others throughout the 
     government.
       Chris would also bring to the job extensive knowledge of 
     the workings of the Department of Justice, and a deep respect 
     for the Department as an institution. Equally importantly, 
     Chris has worked extensively with other offices throughout 
     the government, and he has a clear understanding of the 
     interagency process. As a result, Chris would know how to 
     ensure that Department of Justice policy judgments are fully 
     informed by others in the executive branch.
       Similarly, Chris also understands how the legislative 
     process works. He would be well positioned to ensure that the 
     Department's policy judgments are consistent with the laws 
     Congress enacts and that they are informed by the judgment 
     and experience of those in the legislative branch. Chris 
     served as chief counsel to the Senate Judiciary Committee, 
     and he understands how important it is to work effectively 
     with Members of Congress on both sides of the aisle in 
     formulating effective public policy.
       In addition, Chris would bring to the job the perspective 
     of a lawyer who has engaged in the private practice of law. 
     As a result, he would also understand how Department of 
     Justice policy might affect the legal profession, and he has 
     the experience to understand the practical implications of 
     those policy decisions.
       Finally, and most importantly, Chris is a balanced, 
     fundamentally fair, and honest person. He has excellent 
     judgment and a compelling sense of what is right. All of us 
     have worked with Chris, and we can all affirm that he is a 
     colleague of the highest order.
       In short, Chris would bring to the job the perfect mix of 
     experience: he is a distinguished scholar; he has worked in 
     the Department of Justice, for the Congress, and in private 
     practice; and he has the integrity and judgment the job 
     demands. For all of these reasons, we believe that Chris is 
     superbly well-qualified to serve as the Assistant Attorney 
     General for the Office of Legal Policy.
           Respectfully,
         Eleanor D. Acheson (former Assistant Attorney General for 
           the Office for Policy Development), Walter E. Dellinger 
           III (former Assistant Attorney General for the Office 
           of Legal Counsel; former Acting Solicitor General), 
           Jamie S. Gorelick (former Deputy Attorney General), 
           Randolph D. Moss (former Assistant Attorney General for 
           the Office of Legal Counsel), Beth Nolan (former Deputy 
           Assistant Attorney General for the Office of Legal 
           Counsel), H. Jefferson Powell (former Deputy Assistant 
           Attorney General for the Office of Legal Counsel; 
           former Principal Deputy Solicitor General), Teresa Wynn 
           Roseborough (former Deputy Assistant Attorney General 
           for the Office of Legal Counsel), Lois J. Schiffer 
           (former Assistant Attorney General for the Environment 
           and Natural Resources Division), Howard M. Shapiro 
           (former General Counsel, Federal Bureau of 
           Investigation), Richard L. Shiffrin (former Deputy 
           Assistant Attorney General for the Office of Legal 
           Counsel), Seth P. Waxman (former Solicitor General).
                                  ____

                                                    School of Law,


                                        Pepperdine University,

                                        Malibu, CA, June 22, 2009.
     Hon. Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
     Hon. Jeff Sessions,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Leahy and Senator Sessions: It is my privilege 
     to endorse, and heartily so, the nomination of Christopher 
     Schroeder to be Assistant Attorney General for the Office of 
     Legal Policy. Having known Chris for many years, I know him 
     not only to be a distinguished professor at my beloved alma 
     mater, but--as befits his fine reputation--I also know him to 
     be a thoughtful and measured person. He has sound judgment. 
     Indeed, Chris is quite well known, and again rightly so, for 
     his balanced, careful writing.
       Equally relevant, Chris served with great distinction in 
     the Department of Justice in the highly important Office of 
     Legal Counsel. He has thus been fully engaged in fashioning 
     the advice and counsel that is foundational to our system of 
     the rule of law. Having also served in the Article I branch, 
     Chris has a particularly keen and nuanced sense of what the 
     Founding generation was seeking brilliantly to achieve: 
     balanced government. From both practical experience and 
     engaged scholarship, he understands, deeply, the appropriate 
     role of the co-ordinate branches.
       In short, based on both his personal character and 
     professional qualifications, I enthusiastically recommend him 
     to you for confirmation to this very important role at the 
     Justice Department.
           Yours sincerely,
     Kenneth W. Starr,
       Duane and Kelly Roberts Dean and Professor of Law.
                                  ____



                                Duke University School of Law,

                                        Durham, NC, June 19, 2009.
     Hon. Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
     Hon. Jeff Sessions,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Leahy and Senator Sessions: I am the Dean of 
     Duke Law School. Previously I was U.S. Attorney in the 
     Eastern District of California (1986-1990) and then a United 
     States District Judge in the same district (1990-2007). I am 
     writing in my personal capacity to endorse the nomination of 
     Christopher Schroeder to be Assistant Attorney General for 
     the Office of Legal Policy.
       Professor Schroeder is currently a distinguished member of 
     the Duke Law School faculty, and the Charles S. Murphy 
     Professor of Law. His scholarship is well recognized across a 
     range of subject areas, including constitutional law, 
     administrative, and environmental law. He is the author of 
     dozens of articles and books in these fields, and has the 
     reputation of a fair, thoughtful teacher who respects all 
     points of view.
       Professor Schroeder also directs Duke Law School's Program 
     in Public Law. This Program in Public Law exposes law 
     students to the opportunities and value of public service as 
     part of their professional careers, through speaker series, 
     workshops, conferences and other programs. The Program 
     engages topics that are newsworthy and often controversial, 
     in order to provide students an informed basis for evaluating 
     the public debate about them. I have participated in a number 
     of events sponsored by the Program and have been impressed 
     both with the quality of Professor Schroeder's own 
     contributions, and with the even-handedness of points of view 
     that he consistently brings to the programming. His 
     leadership of this program demonstrates, again, a balanced, 
     fair-minded person who respects, and is respected by, people 
     from many different backgrounds and perspectives. Professor 
     Schroeder is not an ideologue.
       Professor Schroeder also has considerable government 
     experience both in the Department of Justice and in the 
     United States Senate. In the Department of Justice, he has 
     served in the Office of Legal Counsel, including as its 
     Acting Assistant Attorney General. Through that experience he 
     has gained knowledge of the organization and operation of the 
     Department, as well as of many of the policy issues that 
     regularly face the Department of Justice. His prior work at 
     Justice provides valuable preparation for the leadership 
     position to which he has been nominated. In the United States 
     Senate, he has served as Chief Counsel to the Senate 
     Judiciary Committee and in several other capacities as well. 
     I know from my conversations

[[Page 5899]]

     with him that he appreciates the responsibilities of the 
     Senate and the Congress, and possesses a genuine respect for 
     the role of the legislative branch in our constitutional 
     system. This orientation, too, will be an asset in leading 
     the Office of Legal Policy, which often works closely with 
     members of Congress in developing policy initiatives.
       Professor Schroeder possesses the intellect, skill, 
     training, reliability, and disposition to make him an 
     effective and dynamic director of the Office of Legal Policy. 
     He is someone in whom the members of the Senate and the 
     American people can be confident. He has distinguished 
     himself in every endeavor that he has undertaken. I am 
     certain that he will do so as the AAG for the Office of Legal 
     Policy. I highly recommend him for this position.
           Sincerely,
                                                    David F. Levi.

  Mr. LEAHY. Madam President, Chris Schroeder is well known to many of 
us in the Senate. He has served in a number of positions, including 
chief counsel for the Judiciary Committee when the chairman was then-
Senator Joe Biden. He spent years in private practice and as a 
professor, including for the last 10 years as director for the Program 
in Public Law at Duke University Law School. He has also served in a 
number of high-ranking positions at the Justice Department making him 
extraordinarily well prepared for the position to which he has been 
nominated. In fact, in my nearly 36 years here, it is hard to think of 
somebody more well qualified.
  Look what he has done. He graduated from Princeton University, 
received his master of divinity from Yale Divinity School before 
earning his law degree from the University of California at Berkeley 
Boalt Hall in 1974. There is no question that he is well qualified to 
run the Office of Legal Policy.
  For somebody who is going to be confirmed easily, it shouldn't be 
necessary for the majority leader to have to file cloture in order to 
end the Republican filibuster. The Senate should be able to at least 
have an up-or-down vote on Professor Schroeder's nomination. What has 
this place come to when we have filibusters on routine nominations such 
as this?
  I remember, when I first came here, probably the biggest nomination 
we had before a heavily Democratic-controlled Senate was a nomination 
by a conservative Republican President, Gerald Ford, for the U.S. 
Supreme Court. President Ford nominated a well respected Republican 
from Chicago seen as a conservative; John Paul Stevens. We took that 
nomination from the Republican President 2\1/2\ weeks after that 
nomination arrived here. We all voted for John Paul Stevens to be 
confirmed for the Supreme Court, including myself. In fact, I am one of 
only three Senators still here who voted, with Senator Inouye and 
Senator Byrd being the other two.
  What have we come to when we have a nominee who is as extraordinarily 
well qualified as Professor Schroeder, who is going to be confirmed, 
but he has to get past a Republican filibuster.
  The 11 months it has taken us to consider this nomination is a far 
cry, incidentally, from the way the Democrats treated President Bush's 
nomination to run the Office of Legal Policy. A Democratic majority 
confirmed President Bush's first nominee to head that division, Viet 
Dinh, by a vote of 96 to 1 only 1 month after he was nominated and only 
1 week after his nomination was reported by the committee. The 3 
nominees of that office who succeeded Mr. Dinh--Daniel Bryant, Rachel 
Brand, and Elisabeth Cook--were each confirmed by a voice vote in a far 
shorter time than Professor Schroeder's nomination has been pending. 
None of these nominations were returned to the President without 
explanation. None of them required cloture to be filed before being 
considered.
  What is going on when a Republican President is treated with fairness 
but a Democratic President, President Obama, is treated this way? It 
makes me think of what one of the leaders of the Republican Party said 
last year: I want this President to fail. If you have an objection to a 
nomination, vote against it, but none of us should want the President 
of the United States to fail because if the President fails, America 
fails and we all suffer, Republicans and Democrats alike. We have to 
get out of this mindset that if President Obama is for something, 
everybody has to find ways to block it.
  I agree with Senator Franken's observation on the Senate floor 
earlier this week concerning the Schroeder nomination. He remarked that 
perhaps Republicans were blocking this nomination because Professor 
Schroeder has been nominated to lead the office that vets potential 
judicial nominees. Well, he is right, as is Senator Kaufman, who has 
spoken so eloquently on behalf of Professor Schroeder today.
  To deflect criticism for Republican delays and obstruction of 
judicial nominations that have left 25 judicial nominations languishing 
on the Executive Calendar, Senate Republicans have tried to place the 
blame on the administration for sending too few nominees to the Senate. 
But these same Republicans have held up Professor Schroeder's 
nomination to lead the division of the Justice Department involved with 
reviewing and preparing judicial nominations for nearly a year. In 
other words, they stopped the person who is supposed to do the initial 
review on judicial nominations and then said: Oh, my goodness, 
President Obama is not sending up enough nominations. Come on. Come on. 
This is like a burglar saying: I should be excused for burglarizing 
this warehouse because you had such nice things in the warehouse to 
steal. It is your fault for having nice things to steal. How can you 
blame me for stealing them? What they are saying is: It is President 
Obama's fault for not moving through judges who have to be vetted by 
somebody we are blocking from vetting them.
  I know the Department and the administration would be grateful to 
have Professor Schroeder help them prepare judicial nominations. He has 
shown that he has a deep understanding of the proper role of a judge 
tasked with interpreting the Constitution. As he emphasized in a 
response to a question from Senator Sessions:

       Any interpretation of the Constitution must begin with the 
     document's text, history, structure, and purpose, as well as 
     judicial precedent . . . [A] fundamental qualification for 
     anyone being considered for a judicial appointment is that he 
     or she understand the Constitution has binding force that 
     must be applied faithfully in cases that come before any 
     court, independent of his or her own policy or preferences.

  So, again, I thank Senator Kaufman. He is one of the most valued 
members of the Judiciary Committee and somebody I am going to miss 
sorely when he retires this year. I thank him for his dogged efforts in 
support of Professor Schroeder's nomination and for his assistance in 
managing the debate so well today.
  I congratulate Professor Schroeder and his family on his 
confirmation. I have every confidence he will be an effective and 
devoted public servant.
  I might note--I see the distinguished Senator from North Carolina, 
who is presiding over the Senate today. Among the 25 judicial nominees 
stalled before a final Senate vote, there were two courts of appeal 
nominees for North Carolina. I know the distinguished Presiding Officer 
took a totally nonpartisan attitude toward recommending these judges 
and has worked extraordinarily hard, and I hope Judge Wynn and Judge 
Diaz will soon be allowed by Senate Republicans to be considered and 
voted on. They are supported by both the distinguished Presiding 
Officer, Senator Hagan, and the other distinguished Senator from North 
Carolina, Senator Burr. So they are supported by a Democrat and a 
Republican.
  Incidentally, Judge Wynn was reported out of the committee 18 to 1. 
Most of us would love to win elections by that kind of a margin. Judge 
Diaz was reported unanimously 3 months ago.
  So let's stop this unprecedented kind of stalling and clear these 25 
judicial nominees.
  I see nobody else seeking recognition.
  Madam President, I ask unanimous consent that at 2:15 p.m. today, the 
Senate proceed to vote on confirmation of the nomination of Christopher 
Schroeder, with the time until then equally divided and controlled as 
previously ordered; further, that any other provisions of the previous 
order with respect to the nomination remain in effect.

[[Page 5900]]

  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Mr. LEAHY. Madam President, I yield the floor, and 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. LeMIEUX. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LeMIEUX. I ask to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Florida is recognized.


                      Financial Regulatory Reform

  Mr. LeMIEUX. Madam President, I come to the floor of the Senate today 
to talk about the issue of financial regulatory reform, an issue that 
is consuming the good efforts and time of many of our colleagues in the 
Senate. It is an issue that is very important to the future economic 
health and viability of this country.
  As we go about our lives, even in this difficult economy, I think it 
is easy to forget how bad things were just a couple of years ago, how 
bad things were in the fall of 2008. It is important for us to remember 
the situation that we were put in, where our stock market fell 
precipitously, where our financial institutions were on the verge of 
collapse, where the Congress was forced to step in to give billions of 
dollars of taxpayer money to save the financial institutions, to avoid 
what was perceived at the time to be a situation as dire as that which 
happened in the late 1920s when the Great Depression started.
  It is important for us to remember that terrible, challenging time as 
we evaluate what we should do now to prevent that time from happening 
again. We should be looking back to the causes of that crisis in order 
to figure out the solutions we should impose today.
  There has been good work done among Members of both sides of the 
aisle. Senators Dodd, Shelby, Corker, and others on the Banking and 
Finance Committee have been working overtime to come forward with a 
piece of legislation that will help put us in a situation where we will 
no longer have companies too big to fail which could have us going back 
to the American taxpayer to bail out Wall Street to save our financial 
institutions. We should never be put in that position again, so I 
commend the work that is being done. I am hopeful we will have a 
bipartisan product.
  There are pieces of this legislation as it is currently constructed 
which give me concern; that they would cause a bailout to again be a 
situation that the Congress has to address gives me great concern. 
There is particular legislation as part of this package which would set 
up a fund of $50 billion with certain companies designated as too big 
to fail. I think that is a wrong strategy. I think, therefore, we are 
guaranteeing future bailouts. We are saying to these companies: You are 
too big to fail. The Federal Government is giving you its stamp of 
approval. We will come in and rescue you with taxpayer dollars--or 
shareholder dollars, for that case.
  I think that creates the wrong incentive. I think it promotes risky 
behavior and at the same time creates an unfair playing field for those 
institutions which have played by the rules, which have had sound 
financial management. We should not forget in this debate and 
discussion that the way business is supposed to work in this country is 
you put together a venture to sell a product or a service. If you 
succeed, you have a profit. If you fail, you go out of business. The 
failures of the American economic system are in many ways just as 
important as the successes.
  Where would we be if technologies that proved to be failures were 
subsidized and preventing better technologies from coming forward? That 
doesn't make any sense for consumers. It doesn't make any sense for the 
American way of life. We need to make sure businesses can fail if they 
do not succeed.
  We have a system of bankruptcy in this country that is admired around 
the world that, in an orderly way, takes companies into its procedures 
and either reorganizes them or liquidates them. That should be the way 
the process works. We do not want to continue to support bad businesses 
with bad practices and bad ideas. We want the good businesses to 
succeed, and we certainly do not want to create a playing field where 
the businesses that run the right way are at a disadvantage. So I have 
problems with that portion of the bill.
  There are other portions of the bill with which I have trouble. 
Certainly, we should not be in a situation of more taxpayer bailouts or 
even shareholder bailouts.
  I wish to talk today about the causes of the prior crisis and what 
this bill needs to do to make sure that crisis does not happen again. 
If we go back to 2007-2008, we can see in hindsight what led to this 
financial meltdown. In a State such as mine, Florida, we have been 
particularly impacted by the meltdown that occurred because the basis 
of this meltdown was residential property and the mortgages that went 
along with that property.
  In a State such as mine, in Florida, we have been very fortunate over 
the past 30 years or so because as we have had slowdowns in our real 
estate economy--which is a main driver of the economy in Florida, 
construction of real estate--other parts of the market have been able 
to step in and succeed when real estate construction fell back. Never 
before, until this most recent crisis, was the financial market wedded 
with the real estate market.
  Let's look back at the circumstances that occurred. Sometime during 
the early 2000s, a process started whereby banks and lending 
institutions would give mortgages to people who did not have the 
ability, in all honesty, to afford the home they were purchasing. There 
was a type of loan in Florida, and I am sure in other parts of the 
country, called the Ninja loan--no income, no job. Why would any 
lending institution give you a loan if you were not creditworthy in 
order to obtain that loan.
  I had the opportunity to purchase my first home back in 1995. When I 
did, I could only put down 15 percent. My bank required me to get 
mortgage insurance in order to make it to the 20 percent deposit 
requirement. That was the way it was in this country. There was a time 
when you tried to obtain a mortgage where the bank was very vested in 
you being able to pay because they were holding the note.
  Sometime in the early 2000s, the process started whereby mortgage 
brokers and banks could sell off your mortgage into the marketplace 
because we started to securitize mortgages, make mortgages trading 
instruments. When that happened and when now the mortgage broker or the 
bank that generates a fee from the writing of the mortgage of itself 
can take that mortgage and send it off, sell it off to somebody else, 
we created a bad incentive.
  The bad incentive was, I don't care about the creditworthiness of the 
person to whom I am loaning the money because I no longer have to hold 
the mortgage. So the creation of these instruments, these securitized 
instruments to trade mortgages created that bad incentive, and all of a 
sudden mortgages were being written to people who otherwise did not 
have the credit and didn't have the likelihood of repaying them.
  What did that do? Easier money meant prices became inflated. Most 
folks in Florida and all around this country did not look at the price 
of the home they were purchasing, they looked at their monthly payment. 
Interest rates were extremely low, money was easy to get, a downpayment 
was no longer a requirement. This helped the building business, the 
home construction business to take off--more homes, more mortgages.
  The financial markets on Wall Street found that putting together 
these mortgage-backed securities, these large trading instruments with 
thousands, tens of thousands of mortgages, was very profitable for 
them. They could trade these back and forth and they, too, could 
receive a commission

[[Page 5901]]

on the sale of these products. That made them money. Guess what. They 
were not responsible if they went under either.
  In order for all of this to work, someone had to vouch for the 
worthiness of these large mortgage-backed securities, these trading 
instruments of mortgages. Wall Street looked, as it always has looked, 
to these rating agencies such as S&P, Moody's, Fitch--and guess what. 
They came along and allegedly looked at these products and stamped them 
as being AAA, the highest level of creditworthiness, very unlikely to 
have any problems with them where the person who purchased some kind of 
instrument on them would not get paid let alone lose their investment.
  The challenge was that the rating agencies did not understand the 
mortgages that were in these products. They didn't do the due 
diligence, and we protect them by Federal law from any recourse. They 
didn't have any skin in the game either.
  So now we have the borrower with no skin in the game because they 
didn't have to put anything down on their house--they are basically 
renting. We have the bank and mortgage broker with no skin in the game 
because they don't have to hold the mortgage on their books. We have 
the financial firms with no skin in the game because they are just 
trading these large securitized instruments, and worse still they 
create what they call synthetic agreements where you do not have to 
hold any of these mortgages yourself. You are just creating sort of a 
shadow trading instrument that trades off of the same underlying 
mortgage when, in fact, it doesn't hold them. It is like me betting 
that your house will burn down without me having an interest in your 
house.
  We created this long chain of people in the marketplace, from the 
borrower to the mortgage broker bank to the financial institution to 
the rating agency, who had no skin in the game on these transactions. 
The sale of these market-backed securities, and later the credit 
default swaps which was the insurance policies against them, created 
huge fees for the financial firms.
  We did, for the first time in this history, something we had never 
done before. We put the prime asset of most Americans--their home--in 
play on Wall Street. Year after year the demand for these mortgages 
drove the excess. More and more, poorer and poorer mortgages went to 
feed the beast on Wall Street. At the end of the day, the housing 
market couldn't sustain itself, and when the mortgages started to fail, 
when people started to not be able to make their payments, when the 
increase in property prices could not increase any more because gravity 
affects everything after a while, the whole system in 2007 and then 
2008 began to fall apart, and we found out that companies such as AIG 
were all entangled in buying and selling insurance products on these 
products; that they had huge exposures, that Wall Street banks had $5, 
$10, $15 billion or more in exposure and some of the biggest 
institutions that we know from Wall Street failed--at first bought up 
by other companies and then ultimately bailed out by you, the taxpayer. 
I go through this history and explain it in the best way I know how. It 
is a very complicated topic, because what we do in this reform bill has 
to address the skin-in-the-game problem. So to my friends, Senator 
Dodd, Senator Shelby, Senator Corker, Senator Warner, and others, who 
are in the midst of negotiating the bill that will come to this floor, 
I have made three suggestions as to what we need to do to make sure we 
do not replicate this problem again.
  First, these rating agencies, which are captive to the investment 
banks whose products they rate, can no longer be held harmless to not 
do the due diligence required and stamp AAA on products they do not 
investigate and do not understand. But for these rating agencies, this 
crisis probably would not have happened. But for them, but for the 
imprimatur of their AAA stamp, people would not have slept well at 
night buying a product they did not understand. It is like Consumer 
Reports. Consumer Reports says, this is a great car. It is safe. You as 
a consumer do not understand the modern workings of a car with all of 
its computer technology, but you buy Consumer Reports, and you read it. 
It tells you this is the safest car in America, so you feel safe 
putting your wife and your kids in that car.
  But you did not know under this circumstance that the very rating 
agencies that were rating these products, one, were not doing any due 
diligence, and, two, were being paid by the investment banks whose 
products they were rating. That has got to change.
  Suggestion No. 2. In terms of residential mortgage underwriting, if a 
broker or bank is going to write some exotic-type mortgage where there 
is little to nothing down, then they should be required to maintain a 
portion of those mortgages on their books. Let them bear the risk. Do 
not let the bank shift it off so it can become securitized in the 
marketplace, entangle all of our financial institutions, and put us, 
the taxpayer, at risk. If we make those banks hold some of these 
nontraditional mortgages, I guarantee you they will do a better job of 
making sure the people they are lending money to are good creditworthy 
investments for them.
  The third suggestion is this: The issuers of securitization, 
including these synthetic--which basically means manufactured, not 
real--collateralized debt obligations also should be required to retain 
a substantial stake of the instruments they market. They have to have 
skin in the game as well, so that if these instruments fail, they are 
going to lose money.
  We have got to understand, not only in this discussion but throughout 
the problems we address, the incentives we are creating. We cannot have 
a financial market system whereby there is no exposure to me in any 
part of the equation, because that is going to encourage bad behavior. 
It is the same reason why we got it wrong on health care reform. 
Because as long as we have third-party payers, Medicare and Medicaid 
insurance companies, we, the consumers, have little interest in the 
cost we are paying. Therefore, costs do not go down.
  It is the same brewing problem we are going to have when a recent 
statistic says that 47 percent of Americans do not pay taxes. If 47 
percent of Americans do not pay taxes, do they actually care if the 
U.S. Government does a good job of spending money effectively and 
efficiently? The incentive is for them not to care, because it is not 
their money.
  We have got to address this issue today in the financial markets, and 
tomorrow in all of the legislation we pass.
  Americans, banks, consumers, in all forms, whether we are buying 
health care services or financial products, whether we are buying a 
home or trading on Wall Street, we have to have skin in the game, or we 
create bad incentives that harm our country.
  With that, I conclude my remarks and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWN of Ohio. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent to speak 
for up to 5 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                              Derivatives

  Mr. BROWN of Ohio. I know the Democrats are a bit shorter than that 
in time. If a Republican comes, I will yield the floor more quickly if 
they ask.
  I only have a couple of things I want to say. I just came earlier 
from the Agriculture Committee meeting where we passed legislation, 
bipartisanly, to regulate derivatives. It was a major step in financial 
reform. The discussion was vigorous, the discussion was not 
contentious, but there was a good bit of

[[Page 5902]]

disagreement. But in the end, the committee voted bipartisanly for 
stronger derivative legislation. It will provide financial stability by 
requiring banks to put capital behind their trades. It will use 
transparency and accountability to prevent Wall Street banks from 
taking advantage of their business customers. It will reduce 
speculation that fuels bubbles in markets such as natural gas and 
mortgages.
  We understand derivatives can be used responsibly by businesses to 
hedge commercial risk. But commercial businesses make up a relatively 
small part of the derivatives business. It used to make up a much 
larger part. A lot of the synthetics, CDOs, and other derivatives have 
become way more commonplace and, parenthetically but importantly, put 
us in the position that we are in as a nation in our economy.
  I commend Senator Lincoln for her advocacy and leadership in voting 
out a strong derivatives regulation. The reason this is so important is 
we know what happened because of Wall Street excess. What happened is 
some homeowners in Bryan, OH, lost their homes. We know that retirees 
in Ravenna, OH, lost a good bit of their wealth. We know that workers 
in Dayton, OH, lost their jobs. That is repeated in Charlotte, and 
Raleigh, and Asheville, NC. It is true in Marietta and Cleveland and 
Bedford, OH, that because of Wall Street excesses, too many people lost 
their homes, lost their wealth, lost their retirement, lost their jobs.
  This legislation today, coupled with Senator Dodd's legislation 
coming out of Banking, was bipartisanly passed. It will move us in the 
right direction. It was bipartisan but not a compromise of Wall Street. 
When bipartisanship means bring Wall Street to the table to write the 
legislation, that is not what the American people want. What 
bipartisanship means is that our committee writes strong language and 
Republicans and Democrats, at least one Republican and Democrats, come 
together. That is what we ought to do. That is the direction we should 
go. That is what responsible governing is all about.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The question is, Will the Senate advise and consent to the nomination 
of Christopher H. Schroeder, of North Carolina, to be an Assistant 
Attorney General?
  Mr. BARRASSO. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
is necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Utah (Mr. Bennett), 
and the Senator from Nebraska (Mr. Johanns).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea.''
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 72, nays 24, as follows:

                      [Rollcall Vote No. 121 Ex.]

                                YEAS--72

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--24

     Barrasso
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Gregg
     Hutchison
     Inhofe
     Isakson
     McCain
     McConnell
     Risch
     Roberts
     Thune
     Vitter
     Wicker

                             NOT VOTING--4

     Alexander
     Bennett
     Byrd
     Johanns
  The nomination was confirmed.
  The ACTING PRESIDENT pro tempore. Under the previous order, a motion 
to consider is considered made and laid upon the table.
  The President will be immediately notified of the Senate's action.

                          ____________________