[Congressional Record (Bound Edition), Volume 156 (2010), Part 8]
[Senate]
[Pages 10630-10636]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF TANYA WALTON PRATT TO BE UNITED STATES DISTRICT JUDGE FOR 
                    THE SOUTHERN DISTRICT OF INDIANA

                                 ______
                                 

NOMINATION OF BRIAN ANTHONY JACKSON TO BE UNITED STATES DISTRICT JUDGE 
                  FOR THE MIDDLE DISTRICT OF LOUISIANA

                                 ______
                                 

 NOMINATION OF ELIZABETH ERNY FOOTE TO BE UNITED STATES DISTRICT JUDGE 
                 FOR THE WESTERN DISTRICT OF LOUISIANA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations, 
which the clerk will report.
  The assistant legislative clerk read the nominations of Tanya Walton 
Pratt, of Indiana, to be United States District Judge for the Southern 
District of Indiana; Brian Anthony Jackson, of Louisiana, to be United 
States District Judge for the Middle District of Louisiana; Elizabeth 
Erny Foote, of Louisiana, to be United States District Judge for the 
Western District of Louisiana.
  The PRESIDING OFFICER. Under the previous order, there will be 20 
minutes for debate concurrently on the nominations, which will be 
equally divided and controlled between the Senator from Vermont, Mr. 
Leahy, and the Senator from Alabama, Mr. Sessions, or their designees.
  The Senator from Vermont is recognized.
  Mr. LEAHY. I thank the distinguished Presiding Officer. Today, the 
Senate is being allowed to confirm only a few more of the 28 judicial 
nominations that have been reported by the Senate Judiciary Committee 
over the past several months, but which have been stalled by the 
Republican leadership. We have yet to be allowed to consider 
nominations reported last November. In addition to the three 
nominations being considered today, there are another 17 judicial 
nominations available that were all reported unanimously by the 
Judiciary Committee. There is no excuse and no reason for these months 
of delay. The Senate Republican leadership refuses to enter into time 
agreements on these nominations. This stalling and obstruction is 
unprecedented.
  The Senate is well behind the pace I set for President Bush's 
judicial nominees in 2001 and 2002. By this date in President Bush's 
Presidency, the Senate had confirmed 57 of his judicial nominees. 
Despite the fact that President Obama began sending us judicial 
nominations 2 months earlier than did President Bush, the Senate has to 
date only confirmed 28 of his Federal circuit and district court 
nominees. After today's 3 confirmations, the comparison will stand at 
31 to 57, which is barely half of what we were able to achieve by this 
date in 2002. Another useful comparison is that in 2002, the second 
year of the Bush administration, we confirmed 72 Federal circuit and 
district judges. In this second year of the Obama administration, we 
confirmed 16 so far. In fact, our Senate Republicans have allowed so 
few nominees to be considered that in 1 hour today, the Senate is going 
to have three confirmations. That will increase our judicial 
confirmations for the year by almost 20 percent. Meanwhile, Federal 
judicial vacancies around the country hover around 100.
  This is the second year of the Obama administration. Although 
vacancies have been at historic highs, Senate Republicans last year 
refused to move forward on judicial nominees. The Senate confirmed the 
fewest in 50 years. The Senate Republican leadership allowed only 12 
Federal circuit and district court nominees to be considered and

[[Page 10631]]

confirmed despite the availability of many more for final action. They 
have continued their obstruction throughout this year. Only 16 Federal 
circuit and district court nominees have been confirmed so far this 
year, although another 28 have been reported favorably by the Judiciary 
Committee.
  About a week or so ago, three distinguished women were confirmed by 
virtually unanimous votes. These nominees were reported unanimously by 
the Senate Judiciary Committee back in March; all Democrats and 
Republicans voted for them. These three distinguished women put their 
lives on hold and were still held up for months before they were 
allowed to be confirmed.
  To put these delays into historical perspective, consider this: In 
1982, the second year of the Reagan administration, the Senate 
confirmed 47 judges. In 1990, the second year of the George H.W. Bush 
administration, the Senate confirmed 55 judges. In 1994, the second 
year of the Clinton administration, the Senate confirmed 99 judges. In 
2002, the second year of the George W. Bush administration, the Senate 
confirmed 72 judges. The only year comparable to this year's record-
setting low total of 16 was 1996, when the Republican Senate majority 
refused to consider President Clinton's judicial nominees and only 17 
were confirmed all session.
  Senate Democrats moved forward with judicial nominees whether the 
President was Democratic, as in 1994, or Republican, as in 1982, 1990, 
and 2002, and whether we were in the Senate majority, as we were in 
1990, 1994, and 2002, or in the Senate minority as in 1982. Senate 
Republicans by contrast have shown an unwillingness to consider 
judicial nominees of Democratic Presidents. They did in 1996, 2009, and 
2010.
  Over the last recess, I sent a letter to Senator McConnell and to the 
majority leader concerning these matters. In that letter, I urged, as I 
have since last December, the Senate to schedule votes on these 
nominations without further obstruction or delay. I called on the 
Republican leadership to work with the majority leader to schedule 
immediate votes on consensus nominations--many, like those finally 
being considered today, I expect will be confirmed unanimously--and 
consent to time agreements on those on which debate is requested. As I 
said in the letter, if there are judicial nominations that Republicans 
truly wish to filibuster--after arguing during the Bush administration 
that such action would be unconstitutional and wrong--then they should 
so indicate to allow the majority leader to seek cloture to end the 
filibuster.
  The three nominees being considered today were all reported 
unanimously by the Judiciary Committee way back in March. They could 
have been confirmed, they should have been confirmed long before now.
  They are supported by their home State Senators. I note that in all 
three cases, that means both a Democratic Senator and a Republican 
Senator.
  Judge Tanya Walton Pratt has been nominated to serve as a Federal 
district court judge in the Southern District of Indiana. If confirmed, 
Judge Pratt will be the first African-American Federal judge in Indiana 
history. The Judiciary Committee reported her nomination favorably 
without dissent on March 4, more than 3 months ago. Judge Pratt is 
currently a Marion County Superior Court judge where she has served 
since 1997. The substantial majority of the ABA rated Judge Pratt 
``well qualified'' to serve on the U.S. District Court Southern 
District of Indiana. She has 17 years of judicial experience and has 
the support of both home State Senators, Republican Senator Lugar and 
Democratic Senator Bayh.
  Brian Jackson's nomination to the U.S. District Court for the Middle 
District of Louisiana was reported by voice vote by the Judiciary 
Committee on March 18, nearly 3 months ago, and has the support of both 
home State Senators, Democratic Senator Landrieu and Republican Senator 
Vitter. The ABA Standing Committee on the Federal Judiciary unanimously 
rated Mr. Jackson well qualified to be a U.S. District Judge for the 
Middle District of Louisiana, its highest possible rating. If 
confirmed, Mr. Jackson will be the second African-American judge to 
serve on the district court in the Middle District of Louisiana.
  The nomination of Elizabeth Erny Foote to a seat on the United States 
District Court for the Western District of Louisiana also has the 
support of Senator Landrieu and Senator Vitter. Ms. Foote has worked 
for the past 30 years in private practice at The Smith Foote Law Firm 
in Alexandria, LA, after clerking for Judge William Culpepper of the 
Louisiana Third Circuit Court of Appeals. When she began her legal 
practice in Alexandria, she was only the fourth woman ever to do so. 
Her nomination was reported favorably by the Judiciary Committee by 
voice vote with no dissent on March 18 and has been awaiting Senate 
action ever since.
  I congratulate the three of them and predict all three will be 
confirmed.
  Mr. President, I ask unanimous consent that I be able to use my 
remaining time as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Nomination of Elena Kagan

  Mr. LEAHY. Mr. President, our Nation recently celebrated Memorial 
Day, honoring the sacrifice and the service of our brave men and women 
in uniform. Yesterday was Flag Day, and before too long we will 
celebrate the Fourth of July.
  I wish to speak about Solicitor General Elena Kagan's nomination to 
the Supreme Court. I thought it might be good to set the record 
straight about some of the charges being leveled at President Obama's 
nominee to the Supreme Court, Solicitor General Elena Kagan. Those 
intent on opposing this nomination--just as they seem to undercut the 
President no matter what he does--have searched high and low to find a 
basis to oppose this intelligent and accomplished nominee.
  I understand the partisanship, but I disagree with it. A Supreme 
Court nominee is there for all the country, not for one political party 
or the other, and most nominees will serve long after the Senators who 
voted for the nominee are gone.
  I do not think it is good for the country to make it this partisan. 
After the American people elected President Obama, leaders of the 
Republicans urged massive resistance from the outset. They have talked 
about wanting him to fail and have done everything they could to 
undermine his efforts to rescue our economy from the worst downturn 
since the Great Depression, to reform health care for all Americans, to 
lower taxes for Americans making less than $250,000 a year and to 
reform Wall Street so that we never again suffer the kind of greed and 
profiteering that put our economy at risk.
  When the Senator from Alabama became the ranking Republican on the 
Senate Judiciary Committee last year, he lamented the way nominees were 
treated. He said:

       What I found was that charges come flying in from right and 
     left that are unsupported and false. It's very, very 
     difficult for a nominee to push back. So I think we have a 
     high responsibility to base any criticisms that we have on a 
     fair and honest statement of the facts and that nominees 
     should not be subjected to distortions of their record.

  I agree with that statement and very much regret the distortion of 
Dean Elena Kagan's record as dean of the Harvard Law School. No one 
should have attacked her unfairly for following the law while seeking 
to honor Harvard's nondiscrimination policy. No one should be 
misrepresenting her views and smearing her character or questioning her 
commitment to our men and women in uniform. Yet that is what has been 
happening repeatedly since her nomination.
  In fact, some of these same smears were considered last year in 
connection with her nomination to be Solicitor General. She received a 
bipartisan vote of approval then. I was hoping that would put it to 
rest. Instead, some continue to accuse her of an anti-military bias and 
violating the law. They say that she ``barred the U.S. military from 
coming on the Harvard Law School campus,'' that she ``kicked the 
military off Harvard's campus,'' that she ``disregard[ed] the law . . . 
in order to obstruct military recruitment during a time of war,'' that 
she was punishing and taking actions against our

[[Page 10632]]

military men and women, that she condemned the U.S. military, that she 
acted in a way that was ``not lawful,'' and that she ``violated the 
law.'' That is incorrect. I would have thought, and certainly had 
hoped, that since the facts are known, these misstatements would not be 
repeated. Regrettably, this has not been the case.
  The unfair attacks that have been leveled at this nominee are all the 
more reason for her to have a chance to respond. Anyone who has a sense 
of fairness would not be raising questions and contending they still 
have concerns while at the same time seeking to delay her an 
opportunity to respond. Those who have been all too willing to attack 
this nominee during the last four weeks, and who purport to know her 
thoughts and her heart, should not be seeking to delay her opportunity 
to set the record straight and defend her character and good name. 
Those who unfairly characterize her as anti-military and, in effect, 
anti-American and unpatriotic, owe her the opportunity to respond. And 
she will this month when we have our hearings.
  Let's be clear on the facts. Dean Kagan did not ban the military from 
Harvard's campus. Harvard's students always had access to military 
recruiters. The facts are that military recruitment remained steady 
throughout Dean Kagan's tenure, it even increased during the brief time 
that the military was restricted from using Harvard's Office of Career 
Services, OCS. Unfortunately, these facts will not prevent some critics 
from claiming that she kicked military recruiters off campus when she 
did no such thing. This is not debatable.
  What is debatable is the wisdom of the ``Don't Ask, Don't Tell'' 
policy. In my opinion, the ``Don't Ask Don't Tell'' policy forces good 
and capable people to choose between compromising their integrity and 
being barred from military service. At a time when we need a strong and 
skilled military more than ever, our existing policy makes the Armed 
Forces less effective. As Admiral Mullen, Chairman of the Joint Chiefs 
of Staff, recently said, ``allowing gays and lesbians to serve openly 
would be the right thing to do.'' I agree. The current policy 
needlessly robs our Armed Services of the talents and commitment of 
countless people, and it should be changed. Every member of our 
military should be judged solely on his or her contribution to the 
mission, without regard to sexual orientation. Rejecting the 
discrimination that results from the ``Don't Ask Don't Tell'' policy is 
long overdue.
  Does this statement here on the floor of the Senate make me anti-
military? Of course not. Does Admiral Mullen's position on the policy 
make him anti-military? Of course not. He is a distinguished four-star 
admiral. Did Dean Kagan's comments on the policy render her anti-
military? Not on your life. Anyone at all familiar with her record 
knows better. Veterans from Harvard Law School have come to her 
defense. They know and recall her support of them and their service to 
the country. They know of the dinners and meetings she held with 
veterans.
  I am confident that a fair reading of her record will show she was 
supportive of our military, our veterans, and Harvard law students who 
wished to serve in the military. So let's stop the misstatements and 
the overheated rhetoric. Let's show her the respect she deserves.
  In her speech at West Point 3 years ago, Dean Kagan spoke of being in 
awe of the courage and the dedication of those who were preparing for 
the military. She went on to speak directly to the issue, saying:

       I have been grieved in recent years to find your world and 
     mine, the U.S. military and U.S. law schools at odds, indeed, 
     facing each other in court on one issue. That issue is the 
     military's ``don't ask, don't tell'' policy. Law schools, 
     including mine, believe that employment opportunities should 
     extend to all their students, regardless of their race or sex 
     or sexual orientation. And I personally believe that the 
     exclusion of gays and lesbians from the military is both 
     unjust and unwise. I wish devoutly that these Americans could 
     join this noblest of all professions and serve their country 
     in this most important of all ways. But I would regret very 
     much if anyone thought that the disagreement between American 
     law schools and the U.S. military extended beyond this single 
     issue. It does not. And I would regret still more if that 
     disagreement created any broader chasm between law schools 
     and the military. It must not because of what we, like all 
     Americans, owe to you.

  Hers were not the words of someone who is anti-military. There should 
be no place in America for discrimination. We ask our troops to protect 
freedom in places around the globe. It is time to protect the basic 
freedoms and equal rights at home.
  I commend the House of Representatives for passing legislation just 
last month to end this discriminatory policy, and the Senate Armed 
Services Committee for doing so, as well. Congress is moving forward to 
adopt the policy of nondiscrimination that Harvard Law School had 
adopted and that Dean Kagan supported. I have long supported similar 
legislation in the Senate. I believe this is an important issue worthy 
of an up-or-down vote by the Senate. Regrettably, like so many steps 
forward in legislation to protect equality throughout our history, the 
repeal of this discriminatory policy will likely be filibustered by a 
recalcitrant minority.
  I also find it ironic that those Republican Senators most critical of 
the nominee have filibustered and voted against funding for our troops 
and against services for our veterans. When the American people hear a 
Republican Senator criticizing Elena Kagan's respect and support for 
the military, they might ask whether that Senator filibustered the 
National Defense Authorization Act for fiscal year 2010. Led by the 
Republican leadership, more than 30 Republican Senators did. Even after 
their filibuster was defeated, most Republican Senators proceeded to 
vote against the bill and the authorities it provided our military. 
Likewise, when the Senate considered the consolidated appropriations 
bill to provide funding for veterans and military construction, again 
led by the Senate Republican leadership, more than 30 Republican 
Senators sought to filibuster and stall that funding. Even when their 
filibuster was broken, more than 30 Republican Senators voted against 
that bill to provide the necessary funding for services to our 
veterans.
  Also obscured by the blinders worn by her critics are the following 
facts: Harvard Law School adopted its nondiscrimination policy in 1979, 
long before Elena Kagan ever attended Harvard Law School as a student 
let alone before she became an acting professor and ultimately its 
Dean. Like almost every other law school in America, Harvard requires 
employers to sign a statement that they do not discriminate. Only after 
an employer confirms its nondiscrimination employment policy and hiring 
practice can the employer use the logistical assistance of the Harvard 
Law School's Office of Career Services. This office merely facilitates 
recruitment by scheduling interviews and distributing student resumes 
to employers. It does not provide physical space on campus for 
employers to conduct interviews. In fact, private law firms typically 
conduct interviews off campus.
  In 1994, Congress adopted the ``Don't Ask, Don't Tell'' policy as 
part of the National Defense Authorization Act. This law prohibited 
gays and lesbians from serving openly in our military. Two years later, 
in 1996, Congress passed the so-called ``Solomon Amendment'' as part of 
the National Defense Authorization Act. This statute allows Federal 
funds to be denied to universities that have ``a policy or practice'' 
that ``prohibits, or in effect prevents'' the military's access to 
students on campuses for purposes of military recruiting. In order to 
deny Federal funds under the Solomon amendment, the Secretary of 
Defense must determine that a university has such a policy or practice, 
``transmit a notice [of such determination] . . . to Congress'' and 
``publish in the Federal Register a notice of the determination and the 
effect of the determination on the eligibility of the [university] for 
contracts and grants.''
  The Solomon amendment did not directly prohibit a law school from 
applying its nondiscrimination policy to military recruiters. It did 
not make such an action a crime. The Solomon

[[Page 10633]]

amendment gave institutions a choice between satisfying the Secretary 
of Defense's requirements on military recruitment or risk foregoing 
certain Federal funds. Senator Sessions acknowledged this very point 
when he said last year, ``well, let me say, that amendment didn't order 
any university to admit anybody or to allow anybody to come on 
campus.'' In fact, it is not a criminal statute but an attempt to use 
the threat of a Federal funding cutoff as leverage.
  In 1998, the Air Force determined that Harvard's alternative 
arrangement for military recruitment facilitated by the HLS Veterans 
association, in lieu of OCS, complied with the Solomon amendment. In 
2002, under the Bush administration, the Air Force reversed course and 
enter into a new and contradictory determination that the arrangement 
no longer satisfied the Solomon amendment. It threatened Dean Robert 
Clark, a Republican and Dean Kagan's predecessor, with a cutoff of 
millions of dollars. In response, Dean Clark ``regrettably'' allowed 
military recruiters to use OCS while continuing to emphasize his strong 
opposition to ``Don't Ask, Don't Tell.''
  In 2003, Solicitor General Kagan became the first woman to serve as 
dean of the Harvard Law School when she succeeded Dean Clark. For the 
first few years in this position she maintained the law school's 
nondiscrimination policy that all employers, with the sole exception of 
the military, had to follow to use the Office of Career Services. She 
continued to allow the military access to OCS, despite the fact that it 
could not sign a nondiscrimination statement. However, she also 
repeatedly voiced her opposition to the ``Don't Ask, Don't Tell'' 
policy, as Dean Clark had, calling it ``a moral injustice of the first 
order.''
  Also in 2003, the Forum for Academic and Institutional Rights, Inc., 
FAIR, an association of law schools, began a lawsuit challenging the 
Solomon amendment and seeking a preliminary injunction enjoining its 
enforcement. On November 5, 2003, the district court denied the 
injunction and FAIR appealed to the court of appeals for the Third 
Circuit. On January 12, 2004, in her capacity as a law professor, Dean 
Kagan joined more than 50 other Harvard law professors to support an 
amicus brief backing FAIR's appeal to the Third Circuit. Unlike FAIR, 
which argued that the Solomon amendment violated the first amendment, 
the brief she joined made the more modest argument that the Department 
of Defense had misinterpreted the law. The amicus brief argued: (1) 
that the Solomon amendment did not apply to generally applicable 
nondiscrimination policies, like Harvard's, that did not specifically 
target the military; and (2) it only required that schools give 
military recruiters ``entry'' and ``access,'' not necessarily equal 
access.
  Noting the confusion surrounding the legal requirements of 
eligibility for Federal funding under the Solomon amendment, Congress 
amended the statute in October, 2004. The effect of those changes was 
not settled until the Supreme Court decided the case in 2006.
  On November 29, 2004, the Third Circuit concluded, 2-1, in an opinion 
joined by Reagan appointee Judge Walter Stapleton, that the ``Solomon 
Amendment violates the First Amendment by impeding the law schools' 
rights of expressive association and by compelling them to assist in 
the expressive act of recruiting.'' The Third Circuit's opinion did not 
address the Harvard law professors' amicus brief.
  From the beginning of her tenure until November 30, 2004, Dean Kagan 
had allowed the military to use OCS. Only after the Third Circuit 
concluded that the Solomon amendment was unconstitutional did Dean 
Kagan return to Harvard's prior policy of excluding the military from 
OCS. However, like her predecessors, Dean Kagan continued to allow 
military recruiters entry to the campus and facilitated interviews on 
campus through the HLS Veterans Association. This special arrangement 
was in place only for a few months in 2005.
  In May 2005, the Supreme Court agreed to review the Third Circuit's 
decision. During that summer, while the government appeal was pending, 
the Pentagon informed Harvard University that its Federal funds were in 
jeopardy if it continued to restrict military recruiters from OCS 
services. The Pentagon never notified Congress nor published in the 
Federal Register that Harvard was not compliant with the Solomon 
amendment.
  On September 20, 2005, Dean Kagan reinstated the military's exception 
from Harvard's nondiscrimination policy and again granted it access to 
OCS. Dean Kagan's decision to lift the military's restriction from OCS 
was long before the Supreme Court held oral argument on December 6, 
2005, or decided the case.
  The day after reinstating the military's use of OCS, Dean Kagan was 
one of 40 Harvard law professors to sign onto an amicus brief to the 
Supreme Court. As they did before the Third Circuit, the Harvard law 
professors argued that the Pentagon had misinterpreted the Solomon 
amendment and that properly read, the amendment ``rules out policies 
that target military recruiters for disfavored treatment, but it does 
not touch evenhanded anti-discrimination rules that incidentally affect 
the military.'' The Supreme Court rejected their argument. On March 6, 
2006, the Supreme Court also reversed the Third Circuit and upheld the 
constitutionality of the Solomon amendment.
  Let's be clear. She did not break the law. She did not violate the 
law. She did her best to follow the law, even a law that led to 
discriminatory consequences with which she strongly disagreed. She 
engaged in legal action and participated in a legal challenge to the 
interpretation and application of the law by the Bush administration 
and reversed an earlier interpretation by the Air Force. Yet this legal 
action is what some now claim amounted to illegal conduct. That is 
incorrect.
  Recently there was an op-ed in the Washington Post by Walter 
Dellinger dated May 14, 2010, that discusses this issue. Mr. President, 
I ask unanimous consent that it 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, May 14, 2010]

                  How I Know Kagan Isn't Anti-Military

                         (By Walter Dellinger)

       The nomination of an anti-military leftist to the Supreme 
     Court would make for a riveting story. But in the case of 
     Elena Kagan, it's just not true.
       When Kagan became dean of Harvard Law School in 2003, 
     Harvard, like virtually every other law school, had a long-
     standing policy that the assistance of its placement office 
     was available only to employers that would interview and 
     consider hiring any student. Employers that insisted on 
     ``pre-screening'' students for high grades or other criteria 
     were not eligible for the school's placement assistance, nor 
     were recruiters who declined to hire students on the basis of 
     race, sex, religion or sexual orientation. The placement 
     office, in other words, is there to serve the career 
     aspirations of all students.
       Under Kagan's predecessor at Harvard, the highly respected 
     corporate scholar Robert C. Clark, military recruiters 
     acknowledged that they were not able to comply with the 
     school's generally applicable anti-discrimination policy and 
     could not use the placement office's services. In 2002, the 
     Bush administration asserted that a federal provision called 
     the Solomon Amendment required the law school to grant 
     military recruiters an exemption from its anti-discrimination 
     policy. Faced with a threatened cutoff of federal funds to 
     the whole university, Clark announced that the placement 
     office would begin assisting military recruiters. When Kagan 
     became dean in 2003, she continued this practice.
       In November 2003, the U.S. Court of Appeals for the 3rd 
     Circuit held that the Solomon Amendment was unconstitutional, 
     which meant there was no longer an enforceable, federally 
     mandated exception to the law school's anti-discrimination 
     policy. Kagan announced that military recruiters were once 
     again ineligible for assistance from the school's placement 
     office. In the fall of 2004, after the Justice Department 
     challenged the 3rd Circuit decision and the Supreme Court 
     agreed to review the lower court's ruling, Kagan announced 
     that the school would once again comply with the government's 
     demand for placement-office support for military recruiters.
       On the basis of this unremarkable application of an 
     established anti-discrimination policy, Kagan has been 
     accused of harboring an ``anti-military'' animus. Some 
     critics have falsely equated Harvard's anti-discrimination 
     policy with the anti-military and anti-ROTC policies favored 
     by some campus

[[Page 10634]]

     leftists in the 1970s. Those policies, however, were 
     categorically different: They were directed at the military. 
     In contrast, the anti-discrimination policies applied before, 
     during and after Kagan's tenure as dean were in no way 
     intended to single out the military but were applied in an 
     evenhanded way to all prospective employers.
       It was also far from clear that Harvard even violated the 
     Solomon Amendment. That law withheld federal funding from any 
     school that has a policy of denying military recruiters 
     access to the campus ``in a manner equal in quality and 
     scope'' to other recruiters. Neither the text of the law nor 
     its history (targeting anti-ROTC and anti-military rules) 
     compelled the conclusion that the law was violated by an 
     anti-discrimination policy applicable to all recruiters.
       When some groups challenged the constitutionality of the 
     Solomon Amendment, Kagan joined a majority of her faculty 
     colleagues in a friend-of-the-court brief that I drafted as 
     their counsel, urging the court to exercise judicial 
     restraint and avoid ruling on the constitutional issue by 
     simply holding that it was not clear that Congress intended 
     to preclude the evenhanded application of anti-discrimination 
     policies. There were no dissents from the chief justice's 
     opinion dismissing this statutory argument. We knew that it 
     would be a difficult sell for the court because the actual 
     party to the case wanted to seek a constitutional ruling, a 
     course we thought imprudent and unwise. As the oral argument 
     showed, a number of justices thought the Harvard brief raised 
     a very serious question. For today's debate, the key point 
     about the brief that Kagan joined is that it urged a prudent 
     course, arguing that ``sound principles of judicial restraint 
     counsel that this Court should resolve the question of 
     statutory coverage before turning, only if necessary, to 
     constitutionality.''
       No action Kagan took as dean remotely suggests anything but 
     the greatest respect for the military. Even when the law 
     school's anti-discrimination policy effectively precluded 
     placement-office assistance to military recruiters, she 
     permitted student veteran groups to use law-school premises 
     to facilitate military recruitment of Harvard students. At no 
     point were military recruiters ever barred from the campus or 
     banned from recruiting Harvard law students. And military 
     veterans who entered Harvard Law School when Kagan was dean 
     have praised her efforts to ensure they were welcomed and 
     respected for their service.
       Separately, it is true that as dean, Kagan expressed strong 
     personal opposition to the ``don't ask, don't tell'' 
     restrictions on service by gays and lesbians in the military. 
     But that is not an anti-military position. Rather, it is the 
     position now shared by many senior military leaders and the 
     commander in chief.

  Mr. LEAHY. Finally, I find it ironic: Here is this very pro-military 
nominee who is being criticized as somehow being anti-military, being 
criticized by some of the same Republican Senators who have 
filibustered and voted against funding for our troops and against 
services for our veterans. I think most people see through that.
  Mr. President, we are required to vote at what time?
  The PRESIDING OFFICER. The Senate is voting at about 11:50 a.m. when 
all time is expired.
  Mr. BAYH. Mr. President, I rise today to speak in favor of the 
nomination of Judge Tanya Walton Pratt. I joined together with Senator 
Lugar to recommend Judge Walton Pratt because I know firsthand that she 
is a highly capable lawyer who understands the limited role of the 
Federal judiciary.
  Before I speak to Judge Walton Pratt's qualifications, I would like 
to comment briefly on the state of the judicial confirmation process 
generally. In my view, this process has too often been consumed by 
ideological conflict and partisan acrimony. This is not, I believe, 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 Court of Appeals. Judge Tinder was nominated by 
President Bush and unanimously confirmed by the U.S. Senate by a vote 
of 93-0. It was my hope that Judge Tinder's confirmation would serve as 
an example of the benefits of nominating qualified, non-ideological 
jurists to the Federal bench.
  In selecting Tanya Walton Pratt, President Obama has demonstrated 
that he also appreciates the benefits of this approach. I was proud to 
once again join with Senator Lugar to recommend her to the President, 
and I hope that going forward other Senators will adopt what I call the 
``Hoosier approach'' of working across party lines to select consensus 
nominees.
  I would also like to personally thank Senator Lugar for his 
extraordinary leadership and for the consultative and cooperative 
approach he has taken to judicial nominations. During my time in 
Congress, it has been my great privilege to forge a close working 
relationship with Senator Lugar across many issues. This has been 
especially true on the issue of nominations--when a judicial nominee 
from Indiana comes before the Senate, our colleagues can be confident 
that the name is being put forward with bipartisan support, regardless 
of which political party is in the White House or controls a majority 
in the U.S. Senate.
  I should also note that Judge Walton Pratt is a historic nominee. If 
confirmed, she will be our State's first African-American Federal 
judge. While this day is long overdue, I hope that her confirmation 
will inspire Hoosier children of all backgrounds to pursue their dreams 
and show them that, in America, anything is possible if you study hard 
and play by the rules.
  On the merits, Tanya Walton Pratt is an accomplished jurist who is 
well-qualified for a lifetime appointment to the Federal judiciary. She 
has extensive trial experience, having served as, a judge on the Marion 
Superior Court since 1997. For much of this time, she served in the 
criminal division, handling major felonies and presiding over dozens of 
jury trials per year. More recently, she has played a critical role in 
the probate division, presiding over adoption cases and placing 
children in loving homes.
  During this time, Judge Walton Pratt has been recognized as a leader 
among Indiana jurists. She has served as chair of the Marion County Bar 
Association and on the executive committee of the Marion Superior Court 
System. Among other accolades, she has been honored as ``Outstanding 
Judge of the Year'' by the Indiana Coalition Against Sexual Assault.
  Judge Walton Pratt has shown that she is deserving of the public 
trust. She has demonstrated the highest ethical standards and a firm 
commitment to applying our country's laws fairly and faithfully. She 
understands that the appropriate role for a judge is to interpret our 
laws, not to write them.
  Tanya Walton Pratt is also a recognized leader in our community. She 
has also been honored with numerous awards including the Career 
Achievement Award from the Archdiocese of Indianapolis and the Key to 
the City of Muncie.
  I can say with confidence that Tanya Walton Pratt is the embodiment 
of good judicial temperament, intellect, and evenhandedness. If 
confirmed, she will be a superb and historic addition to the Federal 
bench. I am pleased to give her my highest recommendation.
  I urge my colleagues to join me--and Senator Lugar--in supporting 
this extremely well-qualified and deserving nominee.
  Ms. LANDRIEU. Mr. President, Brian Jackson and Elizabeth Erny Foote 
are outstanding candidates for judgeships in Louisiana's Middle and 
Western Districts. I was honored to recommend Brian Jackson and Beth 
Foote to the President last year.
  These two well-qualified, noncontroversial nominees are sorely needed 
in the districts they have been nominated to serve, where courts are 
facing unacceptable backlogs and sitting judges are overwhelmed with 
unmanageable caseloads. Ms. Foote and Mr. Jackson have been eager for 
this body to let them get to work serving justice to the people of 
Louisiana since they were reported by the Judiciary Committee on March 
18. I am relieved to see that their long journey toward confirmation is 
drawing to a close.
  Brian Jackson is an exemplary public servant with a distinguished 
record as an attorney and prosecutor. He has extensive Federal 
experience, having worked for the Department of Justice for 16 years. 
From 1992 to 2002, he served as first assistant U.S. attorney and U.S. 
Attorney for the Middle District of Louisiana. As the first assistant 
U.S. attorney, he managed or litigated a variety of civil and criminal 
cases. Because of his leadership, he was

[[Page 10635]]

selected in 2001 to be the interim U.S. attorney for the Middle 
District pending the confirmation of President Bush's nominee.
  Prior to becoming an assistant U.S. attorney, he served as an 
associate deputy attorney general in Washington, DC. In this role, he 
was as a principal adviser to the Attorney General and Deputy Attorney 
General on civil rights and criminal justice policies. In 1992 he was 
honored as the recipient of the Attorney General's Award for Equal 
Employment Opportunity for his leadership in this area.
  Since 2002, he has distinguished himself in private practice in the 
firm Liskow and Lewis, where he is a shareholder. He is currently chair 
of the firm's government investigations and white collar crime groups 
and he is on Liskow and Lewis' board of directors and is the immediate 
past chair of the firm's diversity committee.
  In addition to this distinguished career in private practice, Brian 
has also been extremely active in public service. He has graciously 
served on the boards of several nonprofit organizations, including 
Catholic Charities of New Orleans, The Pro Bono Project, Teach for 
America for the South Louisiana Region, and The Metropolitan Crime 
Commission, for which he served as vice chair. Additionally, he has 
given back to the legal community by serving on the board of directors 
for the New Orleans Chapter of the Federal Bar Association.
  Finally, Brian's impressive academic credentials have also prepared 
him to serve Louisiana's Middle District. He received his bachelor of 
science, Xavier University in 1982. He received his J.D. from the 
Southern University School of Law in 1985 where he served as editor-in-
chief of the Southern University Law Review and his master's of law 
with concentration in international and comparative law from Georgetown 
University Law Center in 2000.
  With these credentials, firm roots Louisiana's Middle District, and a 
long and impressive career in the U.S. Department of Justice, Brian 
Jackson is truly ready to hit the ground running as district court 
judge.
  Elizabeth Erny Foote is an experienced attorney with 30 years of 
experience in Federal litigation. She is a partner in the Smith Foote 
Law firm in Alexandria, LA, where she primarily practices civil 
litigation. She has had extensive experience in Federal court 
throughout her career, having litigated in all three Federal Court 
Districts of Louisiana, in addition to the Fifth Circuit Court of 
Appeal.
  In addition to this outstanding private practice, Beth has proven her 
dedication to the legal profession through her service to the Louisiana 
State Bar Association.
  In addition to this outstanding private practice, Beth has proven her 
dedication to the legal profession through her service to the Louisiana 
State Bar Association, with which she has been actively involved since 
1985 and is currently the immediate past president. In 1994, she became 
the first woman to serve as an officer in the Louisiana State Bar 
association when she was elected treasurer. The same year she received 
the President's Award for outstanding service.
  Beth is truly a respected civic leader throughout Louisiana. In 
addition to her contributions to the legal field, she has demonstrated 
her commitment to justice and equality through a number of nonprofits 
and government initiatives. Her prestigious awards and honors include: 
the 2004 Alexandria Human Relations Commission Award for her efforts in 
promoting better understanding and quality of life in her community, 
the 2004 Louisiana Heroine Award presented by the Louisiana Association 
of Nonprofit Associations, the 2000 Central Louisiana Woman of the 
Century Award, and the 1996 Central Louisiana Women Business Owners' 
``Business Owner Woman of Excellence'' Award.
  Finally, Beth's impressive academic credentials have prepared her to 
serve Louisiana's Western District. She received a bachelor of arts 
from Louisiana State University in 1974, a master's of arts from Duke 
University in 1975, and a J.D. from Louisiana State University Law 
School in 1978. She has also been an adjunct professor at the Paul M. 
Hebert Law Center at LSU, teaching courses in appellate advocacy.
  I believe Beth's principled commitment to the field of law, her 
impressive 30-year career as an attorney, her extensive Federal 
litigation experience, and her esteemed statewide reputation make her 
an excellent nominee for judge for Louisiana's Western District.
  The time to confirm these two noncontroversial nominees is far 
overdue. I urge my colleagues to confirm these nominees without further 
delay so that they may begin the important work the people of Louisiana 
need them to do.
  Mr. LEAHY. Mr. President, 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. LEAHY. 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. LEAHY. Mr. President, I ask unanimous consent that all time be 
yielded back.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the first 
nominee.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Tanya Walton Pratt, of Indiana, to be United States District Judge 
for the Southern District of Indiana?
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from West Virginia (Mr. Byrd), and the Senator from 
Missouri (Mrs. McCaskill) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Florida (Mr. LeMieux) and the Senator from Kansas (Mr. Roberts).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 0, as follows:

                      [Rollcall Vote No. 185 Ex.]

                                YEAS--95

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Brown (MA)
     Brown (OH)
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--5

     Boxer
     Byrd
     LeMieux
     McCaskill
     Roberts
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from Nevada, the majority leader, 
is recognized.


                     TRIBUTE TO SENATOR DAN INOUYE

  Mr. REID. Mr. President, there are not many lists on which Senator 
Dan Inouye ranks second. He was Hawaii's first Congressman, and he now 
is the longest serving Senator from that great State. He is the first 
Japanese American to serve in the House and first Japanese American to 
serve in the Senate. He was the first chairman of the Senate Select 
Committee on Intelligence. He has cast more votes than any other 
Senator west of the Mississippi. We have all heard the stories about 
his bravery, both legislatively and on the fields of war where, because 
of his gallantry, he was awarded the Congressional Medal of Honor.

[[Page 10636]]

  But there is one place where he comes in No. 2, though it is a 
remarkable accomplishment nonetheless. This past Friday, Senator Inouye 
became the second longest serving U.S. Senator in this Nation's 
history, passing Senator Strom Thurmond of South Carolina. Every day 
since Hawaii has been a State, Senator Inouye has proudly represented 
its citizens in Congress. Every day since January 3, 1963, 46\1/2\ 
years ago, Hawaiians have been proud to call Dan Inouye their Senator. 
Every day I have had the privilege of knowing him and serving with him, 
I have been proud to call Dan Inouye my friend.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, last October, the Senate had an 
opportunity to call attention to one of our colleagues who so rarely 
calls attention to himself when Senator Daniel Inouye became the third 
longest-serving Senator in U.S. history. This past Friday, Senator 
Inouye reached an even loftier milestone when he surpassed Strom 
Thurmond to become the second-longest serving Senator in history. So we 
honor him for this remarkable feat of longevity.
  Senator Inouye's dedication to the people of Hawaii is legendary, and 
so is his story. He was only 17 when he heard the sirens over Honolulu 
and saw the gray planes overhead. But he was old enough to know that 
life would never be the same.
  Sure enough, a few years later, he would be lying in a hospital bed 
at Percy Jones Army hospital recovering from wounds sustained in a 
grenade attack in the mountains of northern Italy. It was there that he 
first met his future colleague, Bob Dole, who evidently mentioned that 
after the war he planned to go to Congress.
  As it turned out, Senator Inouye beat him by a few years, and he has 
survived him here in the Senate by many more.
  For his heroic actions in World War II, Senator Inouye received our 
Nation's most prestigious award for military valor, and he has earned 
the admiration of all Americans. Dan Inouye became a member of one of 
the most decorated U.S. military units in American history and one of 
its longest-serving, and finest, Senators. So, Senator, thank you for 
your service, and congratulations on another remarkable achievement.
  (Applause, Senators rising.)
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. AKAKA. Mr. President, I rise to congratulate our senior Senator, 
my good friend and longtime colleague, Senator Dan Inouye, on his 
impressive milestone.
  On Friday, Senator Inouye became the second-longest-serving Senator 
in the history of this storied institution.
  Dan was sworn into the Senate in 1963, just a few years after Hawaii 
became a State. At the time, he was the first and only Japanese 
American to step foot in this room as a Member of this prestigious 
body. Today, he is the chairman of the Appropriations Committee. Dan 
Inouye did not just break barriers, he shattered them.
  Of course, the Senate is only the most recent chapter in Dan Inouye's 
lifetime of service to our country, which includes his Medal of Honor 
service in the Army during World War II, and his service in the Hawaii 
Territorial Legislature and the U.S. House of Representatives.
  Hawaii may be the youngest State in this great country, but as 
Senator Inouye's milestone demonstrates, our contributions continue to 
shape the United States of America.
  From President Barack Obama, who grew up not far from Senator 
Inouye's childhood home on the island of Oahu, to each teacher, 
soldier, construction worker, and farmer, we are proud of the many 
accomplishments of Hawaii's people. We are proud to be the 50th State, 
and we are proud of Senator Inouye's long career serving our Nation.
  Aloha and congratulations, Dan.
  (Applause, Senators rising.)
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Brian Anthony Jackson, of Louisiana, to be 
U.S. District Judge for the Middle District of Louisiana?
  Mr. McCONNELL. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be 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) 
and the Senator from Missouri (Mrs. McCaskill) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Florida (Mr. LeMieux) and the Senator from Kansas (Mr. Roberts).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 96, nays 0, as follows:

                      [Rollcall Vote No. 186 Ex.]

                                YEAS--96

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown (MA)
     Brown (OH)
     Brownback
     Bunning
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--4

     Byrd
     LeMieux
     McCaskill
     Roberts
  The nomination was confirmed.


                            Vote Explanation

  Mrs. BOXER. Mr. President, unfortunately I was unable to make this 
morning's vote on the nomination of Tanya Walton Pratt to be United 
States District Judge for the Southern District of Indiana. Had I been 
present for the vote, I would have voted aye on the nomination.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Elizabeth Erny Foote, of Louisiana, to be 
United States District Judge for the Western District of Louisiana?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President will be immediately notified of the Senate's action.

                          ____________________