[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 6893-6901]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF EDWARD MILTON CHEN TO BE U.S. DISTRICT JUDGE FOR THE 
                    NORTHERN DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Edward Milton Chen, of 
California, to be United States District Judge for the Northern 
District of California.
  The PRESIDING OFFICER. Under the previous order, there will be 3 
hours of debate equally divided in the usual form.
  The Senator from Iowa is recognized.
  Mr. GRASSLEY. We are on the nomination; is that right?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GRASSLEY. Mr. President, I rise today to speak in opposition to 
Magistrate Judge Chen, the President's nominee for the Northern 
District of California. Before I address Judge Chen's nomination, I 
wish to say a few words about our progress on judicial nominations.
  At the beginning of this Congress, I told the chairman that I would 
work with him to process consensus nominees at a fair and reasonable 
pace. Thus far this Congress, I have worked very hard and in good faith 
to do just what I promised. We have confirmed consensus nominees with a 
particular focus on nominees in so-called judicial emergencies. I made 
that commitment to the chairman, and I have kept it.
  The Senate has been in session for only 46 days this Congress. In 
that short period, we have confirmed 20 judges. We confirmed three 
judges last week. In fact, thus far we have taken positive action on 43 
of 71 nominees who have been submitted to this Congress by the 
President--20 have been confirmed, 13 have been reported out of 
committee, and 10 have had hearings in the committee. All totaled, we 
have taken positive action, then, on 61 percent of the judicial 
nominees submitted by the President during this Congress.
  Despite my good-faith efforts, my colleagues from the other side 
continue to accuse us of not moving quickly enough. And, I might add, 
the White House Counsel continues to state publicly that we are not 
moving fast enough. Recently, the President's top lawyers spoke to a 
group of ABA members and asked them to ``bring home the impact or the 
effects of gridlock.'' The President's lawyer neglected to tell the 
American Bar Association that the problem begins at the White House. In 
other words, the Senate cannot act on nominees for judicial 
appointments if the President has not processed them and sent them to 
the Senate. The President has failed to send to the Senate a nomination 
for 50 percent of the current judicial nominees. Yet we have his White 
House Counsel telling the American Bar Association: Get on top of the 
Senate and tell them to get their job done, when we have processed 61 
percent of the ones who are up here and done it in the 46 days we have 
been in session. Somehow they expect us to process nominees who have 
not been submitted to the Congress. That is not possible. This 
statistic certainly does not indicate a sense of urgency on the part of 
the White House--in other words, the fact that the Senate has not even 
received 50 percent of the nominees for those vacancies.
  Notwithstanding my efforts to work together, the majority insists on 
taking detours and throwing up roadblocks to this cooperative effort. 
For example, last week, after moving forward with two district court 
judges, the majority leader filed cloture on one of President Obama's 
most controversial nominees, Mr. Jack McConnell. This week, the 
majority leader has turned to two more of the President's controversial 
nominees. Last night, we defeated a cloture motion for Mr. Cole, the 
President's nominee for Deputy Attorney General, and today we turn to 
Judge Chen. Of course there are noncontroversial nominees the Senate 
could turn to. We could confirm additional district judges as we have 
been doing. But rather than continuing to move forward with the 
consensus nominees, the other side has chosen to turn to the 
President's most controversial nominees.
  I must say this makes it extremely difficult to continue to work in a 
good-faith effort to move forward on noncontroversial nominees. From 
our perspective, it appears that the more we try to work with the 
majority, the more we are accused of not moving fast enough. The test, 
I guess, is in the pudding and the general counsel for the White House 
telling the American Bar Association lawyers to get on the Senate to 
get more nominees confirmed. The more we try to move consensus 
nominees, the more the other side insists on moving the President's 
most objectionable nominees.
  Judge Chen is not a consensus nominee. His nomination was considered 
during the last Congress and was voted out of committee on a party-line 
vote. The nomination was returned to the President on more than one 
occasion. Despite our repeated and consistent opposition, the 
nomination was resubmitted this year. Again it was reported out on a 
10-to-8 party-line vote. Yet, despite the unanimous Republican 
opposition to the nominee, we have agreed to a short time agreement 
rather than engage in extended debate on this nomination.
  With that, I have some remarks regarding Judge Chen's nomination. At 
the outset, let me emphasize the basis of my opposition. It is based on 
Mr. Chen's judicial philosophy, on his own statements, and on his 
record. It is absolutely critical that our judges remain impartial. 
That is the independence of the judiciary. That is why it is 
independent. Their job is to interpret law, not to make law. Our system 
depends upon this independence and impartiality. For that reason, when 
judges put on a robe for the first time, they take a solemn oath that 
they will remain impartial. They swear that they will administer 
justice ``without respect to persons and do equal right to the poor and 
to the rich.'' That is why we want to make sure judges we confirm will 
set aside their personal opinions. We do not want their personal views 
to influence how they do their job. They are supposed to decide cases 
based on facts and on law and nothing else.
  Unfortunately, there are some who believe that this notion of 
impartiality is somehow just plain old-fashioned and outdated. They 
believe judges should not be limited to the facts and the law. Instead, 
they believe judges should look at the litigants themselves. The 
President seems to take this view. This is the heart of the so-called 
empathy standard. The problem, of course, is that empathy for one 
litigant is a bias against the other. But Mr. Chen appears ready and 
willing to adopt and to apply the so-called empathy standard. He 
appears to be a member of the camp who believes that being completely 
impartial is just an old-fashioned view of judging.
  In 2003, as a sitting Federal magistrate judge, he wrote an article 
that summed up his view, and I want to quote it. It is fairly long.

       Judges have to make determinations that draw not so much 
     upon legal acumen, but on an understanding of people and of 
     human experiences. Such experiences inform assumptions that 
     affect legal decisions. . . . Simply put, a judge's life 
     experiences affect the willingness to credit testimony or 
     understand the human impact of legal rules upon which the 
     judge must decide. These determinations require a judge to 
     draw upon something that is not found in case reports that 
     line the walls of our chambers. Rather, judges draw upon the 
     breadth and the depth of their own life experience, upon the 
     knowledge and understanding of people, and of human nature.

  I am sure John Marshall would turn over in his grave if he heard that 
about modern 20th-century and 21st-century judges.

[[Page 6894]]

  The problem with this approach is that it is the exact opposite of 
what judges are supposed to be. Judges are supposed to determine the 
facts and apply the law. That is what their oath demands, and that is 
what judges must do for our judicial system to remain independent and 
impartial.
  In addition to allowing empathy to affect his decisionmaking, Judge 
Chen appears willing to inject his personal views into judging. Both 
his writing and public comments while as a magistrate judge suggest 
that Judge Chen believes judges should interpret the law according to 
their personal understandings and preferences. This is a classic 
definition of judicial activism.
  For example, in discussing his work as a magistrate judge, he stated 
in a speech in 2007 before the American Constitution Society that he 
finds ``most rewarding . . . contributing to the development of the law 
via published opinion, especially if it comports with my view of 
justice.'' Again, the problem here is that a judge's view of justice is 
very irrelevant. Judges are not policymakers. That is what we are in 
the Congress of the United States. Judges are called on to decide the 
facts and to apply the law. Their own view of justice is simply not 
relevant.
  Given that Judge Chen believes a judge's personal views and 
experiences impact their decisions, it becomes important for us to 
understand his views and how they were shaped. Prior to becoming a 
magistrate judge, Judge Chen worked as a staff attorney at the ACLU for 
over 15 years. He was a advocate for the ACLU. He took very liberal 
positions on a variety of issues. I would like to name just a few. He 
opposed private drug testing, he opposed antigang injunctions, he 
defended affirmative action, he harshly criticized English- only 
measures, and he argued that Alabama should be forced to give driving 
tests in languages other than English.
  Those who have defended Judge Chen's nomination have argued that we 
should not consider his work for the ACLU. As I said, we have confirmed 
other nominees with strongly held personal views. But when a nominee 
says that personal views and experiences should and will influence how 
they approach cases, it becomes difficult to overlook their work on 
behalf of an organization such as the ACLU.
  Judge Chen's advocacy on behalf of the ACLU is not disqualifying in 
and of itself. But it is hard to imagine why Judge Chen would devote so 
much of his professional career to the ACLU causes if he did not 
believe in them deeply. More importantly, given that in Judge Chen's 
view, personal views and personal experiences should influence how a 
judge decides cases, we have no choice but to examine Judge Chen's 
personal views and experiences, including his work at that 
organization.
  For these reasons and others, I oppose this nomination. If Judge Chen 
is confirmed today, I sincerely hope he will prove me wrong. I 
sincerely hope he will set aside his personal views and make decisions 
based solely on the facts and on the law. But based on the record 
before this Senator, I fear he will not be able to do so. Therefore, I 
will vote no on his confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.


                           Tennessee Flooding

  Mr. ALEXANDER. Mr. President, on Friday, I visited Memphis to see the 
flooding along the Mississippi River myself, to meet with volunteers 
who were helping, and to see the tremendously well coordinated efforts 
of emergency workers who are meeting and working every day, long into 
the evenings, and have been doing so for the last few weeks and will 
continue to do so for the next several weeks.
  I want to make sure that as the Federal Government's role for helping 
arrives, we are doing everything we should be doing. It is quite a 
sight in Memphis. The Mississippi River today is 14 feet above flood 
stage. It is at a level that nearly equals the level in 1937. The river 
is normally a half mile wide. Today it is 3 miles wide. A great many 
people in Tennessee and Arkansas have been evacuated because their 
homes are flooded with water.
  As we saw a year ago in the Tennessee floods, which stretched from 
Nashville to Memphis, and as I saw last Monday in Hamilton County near 
Chattanooga, Tennesseans know how to respond to this kind of tragedy. 
They are doing it again by helping one another and helping to clean up 
rather than complaining and looting. It is an impressive sight. Bob 
Nations, who is the director of the Shelby County Emergency Management 
Agency, presides over daily meetings of maybe 50 or 60 people from a 
variety of volunteer and governmental organizations, who are carefully 
coordinated to deal with everything from watching the levees, to 
looking for sand boils, to helping people evacuate, to dealing with 
utilities that may be threatened by flooding. He is doing a tremendous 
job.
  COL Vernie Reichling, commander of the Memphis District Corps of 
Engineers, was there on Friday. He has had a tough couple of weeks. He 
was the one who had to blow up a levee in Missouri which hurt families 
in that area but saved towns, whole towns that are down river along the 
Mississippi River from irreparable damage, in northwest Tennessee and 
also in Missouri. He was there providing us with the latest 
information. Overall the Corps' work has been exemplary. So far none of 
the levees around Memphis has been breached, and it appears none will 
be breached, despite the high water.
  The National Weather Service, both State and local officials have 
been an important part of the efforts. The University of Memphis has 
contributed daily maps that will predict where the water will go, which 
have proved to be fairly accurate, which is enormously helpful to 
volunteers and others as they find a way to help people evacuate when 
they need to be evacuated, or before they need to be evacuated.
  I visited with volunteers who were filling sandbags near the Pyramid. 
These included off-duty military personnel from the Navy base nearby. 
These included people from land that is going to stay dry in other 
parts of Shelby County. They knew someone needed to help. I traveled to 
Mud Island where the flood waters were continuing to rise. Officials 
predict as many as 3,000 properties and 6 schools may be affected by 
the flooding. One of the most impressive stories is that of Hope 
Presbyterian Church and its pastor, Dr. Craig Strickland. The church 
has organized up to 13 shelters, each of which could hold 150 to 200 
individuals. Two of them were filled when I was there on Friday. More 
of them are filling up. All of this is being done without any cost to 
the government, without any cost to the individuals who are being 
sheltered there. It is all being provided by the churches and 
synagogues of Memphis. Reverend Strickland and Hope Presbyterian Church 
deserve enormous credit for the role they are playing, along with 
others, in Shelby County.
  The Federal Government, through the efforts of the Corps, is leading 
the fight. This is the largest flood in the history of the Mississippi 
River and Tributaries project. The Mississippi is the third largest 
watershed. The problem is it received 600 percent more rainfall than it 
normally does in a span of 2 weeks. The Corps says it came in all the 
wrong places. Over 4 million people are protected by the comprehensive 
Mississippi River and Tributaries Project. It is being tested in ways 
that it never has before. But the system so far is performing as 
designed. The Corps has made some tough choices that I talked about 
earlier. It is going to continue to need to make tough choices as the 
water moves south.
  The Memphis District has been fighting the flood since the 24th day 
of April, relying on 500 people working 24 hours a day around the 
clock. The Federal Government, through FEMA, the Federal Emergency 
Management Agency, is also helping State and local officials evacuate 
those in harm's way in advance of the floodwaters.
  Governor Haslam of Tennessee requested, and our entire delegation has 
supported, our State's request for emergency evacuation assistance to 
help move residents in Dyer, Lake, Shelby, and Stewart Counties to 
higher ground.
  The President responded quickly, and we thank him for that. Over the 
weekend, the congressional delegation also

[[Page 6895]]

supported Governor Haslam's request for Federal assistance to help 
victims in 15 counties recover from the flood and severe storms that 
began impacting our State on April 19.
  Actually this is a different sort of request. The first was 
evacuations; this is to help those recover. The record rainfall and 
flooding has only added to the devastation caused by the storms. Last 
night I learned the President has approved Tennessee's request to make 
individual and public assistance available to families in the hardest 
hit areas.
  I would say to the Tennesseans who are affected by this, now that the 
President has approved opportunities for individual assistance, I hope 
they will take advantage of this. There is a telephone number to call. 
It is 1-800-621-FEMA. That is 1-800-621-3362. Unfortunately, we have 
had some experience with this telephone number in Tennessee in the last 
year. The floods that came exactly a year ago, which hit counties from 
Nashville to Memphis, produced enormous devastation, $2 billion alone 
in Davidson County. What we found with FEMA, once the President had 
granted the assistance, that Tennesseans who called that telephone 
number got a quick response, usually had an inspector there within a 
few days, and in most cases where there was damage, received a check of 
up to $30,000 within a few days. We hope that happens again, although 
we understand there is terrible devastation in hundreds of counties 
right now around the country, especially in Alabama and the eastern 
part of Tennessee. But I want to make sure that residents and neighbors 
in Tennessee know that the FEMA number, 1-800-621-FEMA, is available 
now to be called.
  The first thing they will do is ask for your ZIP code. After that, 
they will have a chance to provide help. The most important thing that 
Tennesseans can do in preparation for that is to document the loss.
  This flood will impact our State for weeks. The river only crested 
last night, the second highest flood stage ever recorded. It will take 
days for the waters to recede. Only then will we know the true extent 
of the damage. The volunteers and the emergency crews and the church 
shelters will be open for a long time after today.
  I am proud of the Tennesseans who are responding, from the Corps of 
Engineers' personnel, to the Hope Presbyterian Church shelters, to the 
professionals with Mr. Nations. It is an admirable sight.
  Senator Corker and I and our entire delegation are working together 
to make sure that we do all we can to expedite Federal help in response 
to this historic disaster that has occurred in the western part of our 
State.
  I ask unanimous consent that two letters I am passing to the desk be 
printed in the Congressional Record immediately following my remarks. 
They are the two letters our delegation has sent to the President 
making a request for a declaration for disaster assistance.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                                      Washington, DC, May 7, 2011.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: On behalf of the State of Tennessee, we 
     urge you to approve Governor Bill Haslam's request to declare 
     a major disaster due to severe storms, straight-line winds, 
     tornadoes, flash flooding and river flooding that began on 
     April 19, 2011.
       Residents all across our State are faced with devastation 
     from multiple disasters, and Governor Haslam has determined 
     that this incident has caused so much damage that federal 
     assistance is necessary. Flooding along the Mississippi River 
     has compounded the impact of the storms that swept across the 
     Southeast, and will continue to impact our State for weeks. 
     Thousands of our constituents are now dealing with the 
     challenge of rebuilding their homes, while many in West 
     Tennessee are still under the threat of catastrophic 
     flooding.
       The Governor's request specifically seeks Public Assistance 
     for all categories, under the provisions of Section 401 of 
     the Robert T. Stafford Disaster Relief and Emergency 
     Assistance Act, for Benton, Carroll, Crockett, Dyer, Gibson, 
     Henderson, Henry, Houston, Lake, Lauderdale, Madison, 
     Montgomery, Obion, Shelby and Stewart Counties, as well as 
     state-wide assistance through the Hazard Mitigation Grant 
     program. This assistance is critical to help local 
     governments begin debris removal and start putting their 
     communities back together.
       In addition, the State is seeking Individual Assistance for 
     Dyer, Lake, Obion, Shelby and Stewart Counties, making 
     residents of these counties eligible for the Individuals and 
     Households Program, Disaster Unemployment Assistance, Crisis 
     Counseling, the Supplemental Nutrition Assistance Program, 
     Disaster Legal Services and Small Business Administration 
     disaster loans. Without this federal assistance, many 
     families will simply not be able to recover.
       Officials with the Federal Emergency Management Agency have 
     been working with State and local officials since the 
     beginning of this incident, and we are grateful for their 
     efforts to respond to Tennessee's needs. We ask that you 
     consider our State's request as soon as possible, and our 
     offices can provide you with any additional information 
     should you have any questions.
           Sincerely,
         Lamar Alexander, U.S. Senator; Bob Corker, U.S. Senator; 
           Steve Cohen, Congressman; Marsha Blackburn, 
           Congresswoman; Jim Cooper, Congressman; Chuck 
           Fleischmann, Congressman; Phil Roe, Congressman; 
           Stephen L. Fincher, Congressman; Diane Black, 
           Congresswoman; Scott DesJarlais, Congressman; John J. 
           Duncan, Jr., Congressman.
                                  ____



                                Congress of the United States,

                                      Washington, DC, May 3, 2011.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: On behalf of the State of Tennessee, we 
     urge you to approve Governor Bill Haslam's request for 
     emergency funding to help state and local authorities in 
     Dyer, Lake, Shelby and Stewart counties to begin evacuation 
     preparedness activities in advance of the flooding along the 
     Mississippi, Tennessee, and Cumberland Rivers.
       The flooding along the Mississippi River and its 
     tributaries is historic. Heavy rainfall across the region has 
     also caused major flooding along the Tennessee and Cumberland 
     Rivers, In Tiptonville, which has been under a voluntary 
     evacuation order since last week, the Mississippi River is 
     forecast to reach the highest flood stage ever recorded. In 
     the City of Memphis, the forecasted crest has been increased 
     to 48 feet, and residents are being told to prepare for the 
     worst. Those living along the Cumberland River in Stewart 
     County, many of whom are still recovering from last year's 
     floods, are also beginning to evacuate.
       Governor Bill Haslam and the Tennessee Emergency Management 
     Agency are working in cooperation with local officials to 
     meet the needs of our citizens, but they need federal help. 
     The requested funds are critical to support our state's 
     evacuation efforts, which may be extensive, and we cannot 
     afford to delay.
       In light of the need to begin evacuations quickly, we urge 
     you to consider our State's request as soon as possible, and 
     we will provide you with any additional information about our 
     State's needs should you have any questions.
           Sincerely,
         Lamar Alexander, U.S. Senator; Bob Corker, U.S. Senator; 
           Steve Cohen, Congressman; Marsha Blackburn, 
           Congresswoman; Jim Cooper, Congressman; Chuck 
           Fleischmann, Congressman; Phil Roe, Congressman; 
           Stephen L. Fincher, Congressman; Diane Black, 
           Congresswoman; Scott DesJarlais, Congressman; John J. 
           Duncan, Jr., Congressman.

  Mr. ALEXANDER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. BOXER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Mr. President, it is my honor to be here to support the 
nomination of Judge Edward Chen to the Northern District of California. 
I congratulate Judge Chen and I congratulate his family on this 
momentous day that is long overdue. I wish to thank Senator Feinstein 
for her hard work and her leadership in support of Judge Chen's 
nomination.
  I think the way we do our judge recommendations in California is 
exemplary. What we do is, we each have a committee that advises us, and 
they come up with the names of a few people who they think are the top 
choices.

[[Page 6896]]

Then, each of us makes that recommendation to the President. Judge Chen 
was her nominee.
  Judge Chen has had a distinguished career. He enjoys broad support 
and respect in California's legal community. When I heard the remarks 
of my colleague from Iowa, Senator Grassley, it broke my heart because 
it doesn't sound to me as though he knows Judge Chen. He seems to be 
criticizing someone else--someone who sets aside the law. That is not 
Judge Chen. Judge Chen will make an outstanding addition to the Federal 
bench.
  Since 2001, Judge Chen has served as a magistrate judge in the 
Northern District of California, where he has issued over 350 published 
legal opinions. Before coming to the bench, Judge Chen was a respected 
civil rights lawyer and part of the trial team that successfully 
overturned the wartime conviction of Fred Korematsu. He made history 
when he became the first Asian-American magistrate judge to serve in 
the Northern District. Today, Judge Chen takes another history-making 
step if he is confirmed--and I surely hope he will be--because when he 
is confirmed, he will be only the second Asian American in the 150-year 
history of the Northern District to be confirmed as a judge.
  In our great Nation, we are a melting pot. I don't believe we can 
have the kind of justice our Founders envisioned unless we have juries 
of our peers and we have judges who also represent the broad quilt that 
is America. I think this is something to talk about, not to ignore.
  While I am proud we are finally going to vote on the confirmation of 
Judge Chen, I have to again express frustration that it took so long to 
reach this point. Judge Chen was nominated over 21 months ago. I ask 
everyone to think about this--the family, everybody waiting for this 
moment, years and years on the bench with an outstanding record. I 
remember attending Judge Chen's confirmation hearing in September 2009. 
He was nominated for a judicial emergency seat, one that has been 
vacant since April 2008. That is a judicial emergency. We don't have 
enough judges. So one would think we would move quickly on this. 
Following his hearing, his nomination was held up by an unprecedented 
campaign of obstruction, unfortunately, by my friends in the Republican 
Party. They refused to allow an up-or-down vote, and they forced the 
White House to renominate Judge Chen, not once, not twice, not three 
times but four times-- four times. I tell my colleagues, I have read 
their objections, and they boil down to this: They object because once 
he worked as a staff attorney for the ACLU handling civil rights cases.
  This is a man who received the highest rating from the American Bar 
Association. They gave him the ``well qualified'' rating. So I have to 
ask my colleagues why they would object to someone who did a good job 
defending the Constitution. By the way, I don't agree with the ACLU all 
the time, believe me. I am surprised at this objection. For example, 
the ACLU and the tea party in my State right now--in northern 
California--are working together to oppose free speech restrictions in 
front of the Redding Library. In fact, the ACLU and the tea party filed 
parallel lawsuits to strike down the restrictions.
  So my friends on the other side who give the tea party a tremendous 
amount of support, I am a little surprised they would go after the 
ACLU, which is partnering with the tea party in defending the 
Constitution. It is hard for me to believe that because Ed Chen was 
once a staff attorney for the ACLU, he would come under this kind of 
fire.
  They never objected to anything from his 9 years as a magistrate 
judge, not one complaint about any of the opinions he has written. 
Judge Chen's record as a fair and impartial judge since 2001 
demonstrates clearly that he understands the difference between being 
an advocate and being a judge.
  So I don't think we should say anyone who was ever the staff attorney 
for this organization or that organization is barred from getting 
promoted. That is a sad thing. I don't think people should be voted 
down or voted against because they stand for equal rights and civil 
rights. If anything, we ought to say: That is great, because we all 
want our civil rights protected. We all want our rights that are 
guaranteed to us in the Constitution protected.
  Judge Roberts, the Chief Justice, has called on Senators to stop 
playing politics with judicial nominees. I have to say, to me, this 
sounds like politics. You don't like an organization, so then you say 
someone who has been a judge for 9 years--you have no complaints about 
him--go back 10 years and now say because you don't like that 
organization, they can't be promoted.
  Chief Justice Roberts has warned that delays in filling vacancies has 
created acute difficulties in some judicial districts. That is a quote. 
Let me read it. The delays in filling vacancies ``has created acute 
difficulties in some judicial districts.'' Certainly, we know in this 
district we have been in an emergency situation.
  It is time to get Judge Chen seated so he can continue serving the 
people of northern California as a district court judge. I commend 
Judge Chen for his strength and his perseverance over the past 21 
months. This has not been an easy process. I commend his family for 
standing by him. I again commend Senator Feinstein for fighting for 
him, and I commend everybody here who was able to somehow hammer out an 
agreement to have an up-or-down vote on this very talented man.
  I close with great hopes that we are going to get this nominee 
confirmed. In advance of that--and I hope I am right in doing this--I 
wish to congratulate Judge Chen and his family.
  I urge my colleagues to cast their votes to confirm this highly 
qualified and respected nominee to the Northern District and make 
history in doing so and be proud in doing so and know that when we put 
qualified people on the court who bring a different background to the 
court, we are doing something very positive for America. That is what 
America is. I am a first-generation American on my mother's side, and I 
can tell my colleagues what I learned from her: that we should kiss the 
ground in this country. As I grew up, I realized that one of the great 
things about our country is we are such an experiment in democracy. 
People from every background, every religion, differences, but we 
believe in one thing; that is, protection of our rights and the belief 
in freedoms we get from this Nation and we vow to protect those 
freedoms. Part of protecting those freedoms is putting people on the 
bench who understand that. As Benjamin Franklin once said: You have a 
Republic if you can keep it. The way to keep it is not to bar people 
from getting these up-or-down votes. Put good people on this bench. You 
can vote no. You can vote yes. Yes, there are times when we say we want 
a supermajority, but for Ed Chen, I can tell my colleagues right now, 
this isn't one of those times. I look forward to his positive vote.
  Mr. President, I ask unanimous consent that the time that is unused 
during the quorum calls be charged to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Franken). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KIRK. 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. KIRK. Mr. President, I ask unanimous consent to speak for 10 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Egypt's Political Future

  Mr. KIRK. Mr. President, more than 2 months ago, a popular uprising 
in Egypt swept President Hosni Mubarak from power after 30 years in 
office. The Egyptian military is now charged with reforming that 
country's political system in preparation for parliamentary and 
Presidential elections.
  History teaches us this sort of transition happens in three phases, 
not two. First, the dictator falls. Next follows a weak interim 
government. Only then

[[Page 6897]]

does a final permanent government enter the scene.
  We remember the French Revolution with the fall of Louis XVI, then 
the hopefulness of the French First Republic, and then finally the rise 
of Napoleon.
  We remember the October Revolution--first the fall of the czar, then 
the hopefulness of the interim Kerensky government, and finally the 
rise of the Soviet Union. Most recently we remember Iran--first the 
fall of the shah, then the hopefulness of the interim Bakhtiar 
government, and finally the rise of Khomeini.
  Today we are watching this sequence play out in Egypt. First Mubarak 
fell, then came the jubilation of Tahrir Square and the hopefulness of 
an interim military government, and now we are left to wonder what act 
3 will bring.
  Will Egypt remain a strong U.S. ally in the region; will it uphold 
the Camp David peace treaty with Israel; will it commit to the rule of 
law and human rights at home; or will Egypt fall into the hands of the 
radical Muslim Brotherhood; will it drift toward Iran and embrace the 
enemies of Israel?
  Unfortunately, recent developments indicate Egypt is moving in the 
wrong direction. The Muslim Brotherhood is gaining additional influence 
and may soon gain significant legislative power.
  According to a poll released on April 25 by the Pew Research Center, 
78 percent of Egyptians hold a favorable view of the Muslim 
Brotherhood--and that is better than the youth-led ``April 6 Movement'' 
that removed Mubarak from power. In September's planned elections, the 
Muslim Brotherhood plans to contest anywhere between 30 to 50 percent 
of all parliamentary seats.
  Meanwhile, Egypt's foreign policy is shifting away from the United 
States and our allies and toward the Islamic Republic of Iran and its 
terrorist proxies. On April 18, Iran announced the appointment of the 
country's first ambassador to Egypt in 30 years. On April 27, Egyptian 
Foreign Minister Nabil Elaraby said he will meet with the Iranian 
Foreign Minister, Ali Akbar Salehi, in Indonesia on the sidelines of 
the Non-Aligned Movement Summit. The two officials will discuss next 
steps for the Iranian-Egyptian relationship. On May 3, Iran's Foreign 
Minister announced he would send his deputy to visit Egypt in the 
coming days.
  Egyptian authorities helped negotiate the recent reconciliation 
agreement between the terrorist movement Hamas and Fatah--a major 
setback to Israeli-Palestinian peace. When asked to comment on Hamas 
being a terrorist organization, Egypt's Foreign Minister said:

       [We must] allow someone who is fighting for a cause to see 
     the light of day at the end of the tunnel and enter into 
     peace.

  On March 28, Hamas submitted a request to the Egyptian Government to 
reopen its Embassy in the Gaza Strip. On April 28, Egypt's Foreign 
Minister announced plans to reopen the Rafah border with Hamas on a 
permanent basis--a potential boon to the Hamas terrorist organization. 
On April 30, Al Hayat reported that Hamas would be relocating its 
offices from Damascus--sending the terrorist group's No. 2 man, Musa 
Abu Marzouk, to Egypt.
  Meanwhile, Egypt's commitment to democracy and human rights has 
suffered a serious setback following recent attacks on the country's 
Coptic Christian community that left scores dead and hundreds more 
injured. This follows the interim government's move to dismiss the 
Coptic governor of the city of Quena only days after his appointment--
caving to mass demonstrations organized by the Muslim Brotherhood.
  As one Coptic bishop told AFP:

       They are led by Salafis and the Muslim Brotherhood, and 
     they are chanting: ``We won't leave until the Christians 
     leave.''

  Finally, on March 28, Dr. Maikel Nabil Sanad, a 25-year-old blogger, 
was arrested for ``insulting the military,'' and ``disturbing public 
security'' after posting comments on his blog that were critical of the 
military's role in the protests. This arrest clearly violated the 
International Covenant on International and Political Rights and the 
new government's commitment to the fundamental freedoms of its people. 
If Egyptians could freely express their views in Tahrir Square, they 
should have the freedom to express their views online.
  Mr. President, the trajectory of Egypt's revolution now faces two 
distinct scenarios: It could become a secular American ally that 
respects the rule of law, diversity, and a peace treaty with Israel; or 
it could become a Muslim Brotherhood-controlled ally of Iran that 
embraces terrorist groups such as Hamas, persecutes its own religious 
minorities, and rejects peace with Israel.
  We must do everything in our power to support the secular forces of 
Egypt or face the prospect of a strategic setback on the scale of Iran 
in 1979, laying the foundation for potentially yet another war in the 
Middle East.
  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 bill clerk proceeded to call the roll.
  Mr. LEAHY. Madam 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.
  Mr. LEAHY. Madam President, am I correct that we are now on the 
nomination of Ed Chen to the District Court for the Northern District 
of California?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. LEAHY. Madam President, today the Senate will finally consider 
the nomination of Judge Edward Chen to fill a judicial emergency 
vacancy on the District Court for the Northern District of California. 
Since 2001, Judge Chen has been a well-respected Federal Magistrate 
Judge on the court to which he is now nominated to serve as a Federal 
District Judge. His nomination has received the strong and consistent 
support of his home state Senators, Senator Feinstein and Senator 
Boxer, since he was first nominated over 21 months ago. When he is 
confirmed, Judge Chen will be only the second Asian Pacific American to 
serve on the district court bench in the 150-year history of the 
Northern District of California. The debate and vote we have today are 
long overdue.
  We are finally able to consider Judge Chen's nomination because of 
the vote the Senate took last week toward restoring a longstanding 
tradition of deference to home state Senators with regard to Federal 
District Court nominations. The Senate turned away from a precipice 
when 11 Republican Senators joined in voting to end a filibuster of the 
nomination of Jack McConnell to the District Court for the District of 
Rhode Island. In doing so, a super majority of the Senate came together 
to reject a new standard, which I believe is being unfairly applied to 
President Obama's district court nominees. Now, nearly 20 months after 
his confirmation hearing, and after having had his nomination reported 
favorably by the Judiciary Committee four times, Judge Chen's 
nomination will at last have an up-or-down vote in the Senate.
  We should have taken up and confirmed his nomination when it was 
first reported favorably by the committee nearly 19 months ago. The 
supposed ``controversy'' that has delayed and obstructed this 
nomination is in my view entirely misplaced, the result of applying a 
partisan litmus test. This should be an easy nomination to confirm. It 
is no surprise that Judge Chen's nomination received the highest 
possible rating from the American Bar Association's Standing Committee 
on the Federal Judiciary, unanimously ``well qualified,'' since he has 
had a distinguished legal career and has issued over 350 judicial 
opinions in his decade as a Federal magistrate judge.
  Judge Chen's nomination has received broad, bipartisan support from 
the judicial and legal community in California and from numerous bar 
associations, including the National Asian Pacific Bar Association, 
which has been a vocal proponent of this nomination. Judge Chen's 
nomination also has significant support from local law enforcement in 
the district he currently serves and would continue to serve if 
confirmed. Michael Hennessey, sheriff

[[Page 6898]]

for the city and county of San Francisco, wrote: ``Judge Chen's solid 
record as a U.S. Magistrate Judge speaks for itself. He has published 
over three-hundred judicial opinions which are indicative of his work 
ethic and his thoughtful intellect as a respected magistrate judge.'' 
This praise is representative of the scores of letters of support we 
have received.
  I thank Senator Feinstein for her strong advocacy for Judge Chen's 
nomination the four times it has been considered and favorably reported 
by the Judiciary Committee. Any fair minded person who listened to the 
impassioned speeches Senator Feinstein has made about Ed Chen in the 
committee would have to be impressed. Senator Feinstein is right to be 
proud of her recommendation of Ed Chen to President Obama. As Senator 
Feinstein has explained, Judge Chen was the recommendation of her 
bipartisan Judicial Advisory Committee in California, putting the lie 
to the caricature from the far right that this was a partisan 
nomination. This is a fine man with sterling legal credentials and all 
the qualifications needed to be an outstanding Federal judge.
  The approach taken by opponents of Judge Chen's nomination threatens 
to take the Senate down a dangerous path of imposing partisan litmus 
tests in place of our constitutional duty to offer advice and consent 
on nominations. The debate in our committee on Judge Chen's nomination 
was ugly. One Republican Senator in explaining his opposition said that 
Judge Chen has the ``ACLU gene.'' I hope that we do not hear such a 
preposterous notion repeated today on the floor of the Senate. This is 
a distinguished Federal magistrate judge who has demonstrated that he 
knows how to be a fair and impartial judge.
  Our legal system is an adversary system, predicated upon legal 
advocacy for both sides. Certainly defending civil liberties is no 
vice. The other side appears to be suggesting that Judge Chen's work as 
a staff attorney at the ACLU many years ago, primarily representing 
individuals in discrimination and civil rights matters, somehow renders 
him unfit to be a judge. Since when do we impose a litmus test for 
nominees that they can never have been legal advocates? If we were to 
do that, we would have no judges. Almost every nominee who had been a 
practicing lawyer would be disqualified by one side or the other.
  Surely Judge Chen's work while in private practice as a member of the 
legal team that represented Fred Korematsu in a lawsuit that 
successfully overturned his prior conviction for violating the Japanese 
Internment Order during World War II does not render Judge Chen unfit 
to be a judge. In my view, that important advocacy to right a wrong 
from one of the dark chapters in our history serves as proof that 
President Obama made a wise choice in nominating Judge Chen for the 
Federal bench. Indeed, just a few years ago this Senate passed a 
resolution acknowledging that wrong and seeking to help right it.
  The question for me about this nominee is the same question I have 
asked about every judicial nominee, whether nominated by a Democratic 
or a Republican president whether he or she will have judicial 
independence. Does the nominee understand the role of a judge, and how 
it differs from the role of an advocate?
  With this nominee, Judge Chen, that is not a hard question to answer. 
We know that he understands the role of a judge because he has been 
doing it for 10 years on the court to which he has now been nominated. 
As Judge Chen said in response to a question from Senator Sessions: 
``The role of a judge is to be fair, neutral, and evenhanded in 
applying the law and finding facts
. . . without regard to personal preferences.'' His 10 years as a 
Federal magistrate judge resoundingly have answered any concerns about 
bias or partisanship on his part. His testimony before the Judiciary 
Committee reflects his understanding of the proper role of a judge.
  There was no need for the delays that plagued this nomination. There 
were no ``extraordinary circumstances'' that held up this nomination 
for nearly 2 years. With judicial vacancies at crisis levels, affecting 
the ability of courts to provide justice to Americans around the 
country, we should be debating and voting on each of the 12 judicial 
nominations reported favorably by the Judiciary Committee and pending 
on the Senate's Executive Calendar, in addition to Judge Chen. No one 
should be playing partisan games and obstructing while vacancies remain 
above 90 in the Federal courts around the country.
  Judge Chen, born and raised in Oakland, CA, as the son of two Chinese 
immigrants, spent much of his childhood helping his mother and siblings 
support a small family business after his father passed away. After 
earning his A.B. from the University of California, Berkeley, in 1975, 
and his law degree from Boalt Hall School of Law in 1979, Judge Chen 
clerked for Judge Charles Renfrew on the court to which he has now been 
nominated, the Northern District of California, and then for Judge 
James Browning on the Ninth Circuit. After a distinguished career in 
private practice and as a staff attorney for the American Civil 
Liberties Union Foundation of Northern California, Judge Chen was 
selected to serve as a Federal Magistrate Judge for the Northern 
District of California, having since been reappointed upon the 
recommendation of the nonpartisan Merit Selection Review Panel. His 
story is a moving reminder of what it is possible to achieve in this 
great Nation through hard work.
  I congratulate Judge Edward Chen and his family on his confirmation 
today. I commend Senator Feinstein and Senator Boxer for their 
steadfast support of his nomination.
  Madam President, I suggest the absence of a quorum. Is time being 
divided?
  The ACTING PRESIDENT pro tempore. Yes, it is.
  Mr. LEAHY. I ask unanimous consent that the time be equally divided 
during the quorum call.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant editor of the Senate Daily Digest proceeded to call the 
roll.
  Mr. LEAHY. Madam 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.
  Mr. LEAHY. Madam President, I see the distinguished senior Senator 
from California on the floor. I will yield, of course, to her. She has 
been indefatigable in her support of Judge Chen in the committee, in 
the Halls of the Senate, and in her steadfast work with the leadership 
to get this nominee before us. I can brag about all the work she has 
done easier than she might, but I hope Judge Chen and his family know 
they had as strong and as stalwart a supporter on the Senate Judiciary 
Committee as they could possibly have with Senator Feinstein.
  With that, I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant editor of the Senate Daily Digest proceeded to call the 
roll.
  Mrs. FEINSTEIN. Madam 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.
  Mrs. FEINSTEIN. Madam President, I wish to thank Chairman Leahy for 
his leadership on this particular judgeship. I believe he is accurate 
in everything he said, and I very much appreciate his stalwart support.
  I rise to add my support to the nomination of U.S. Magistrate Judge 
Edward Chen to become a U.S. district judge in the Northern District of 
California. I recommended Judge Chen to the President, so obviously he 
has my strong support.
  I wish to tell my colleagues a little bit about him. He was born and 
raised in Oakland, and he is the son of Chinese immigrants. His father 
immigrated to the United States in the 1920s, and that was followed by 
his mother in the 1930s. He attended public schools in Oakland and then 
went on to

[[Page 6899]]

the University of California at Berkeley, where he received his 
undergraduate degree with great distinction, and then on to Boalt Hall 
School of Law, where he graduated in the top 10 percent of his class.
  He was a law clerk to District Judge Charles Renfrew on the U.S. 
District Court for the Northern District of California, as well as to 
Circuit Judge James Browning on the U.S. Court of Appeals for the Ninth 
Circuit. He then began his legal career as a litigator, first at the 
private law firm of Coblentz, Patch, Duffy, and Bass and later as a 
staff attorney at the American Civil Liberties Union.
  In 2001, he was appointed to be a U.S. magistrate judge for the 
Northern District of California, and he has served in that capacity for 
the past 10 years.
  So today Judge Chen is a solid, tested, and respected judge with over 
a decade of experience on the Federal bench. In these 10 years as a 
judge, he has written more than 350 published opinions. I would point 
out that not one of those opinions has been criticized by anyone in the 
20 months this nomination has been awaiting action in the Senate. Nor 
has there been any criticism of any of his published opinions.
  In fact, there is a broad consensus among those who have reviewed his 
judicial record that he is indeed a very good judge.
  He was recommended to me by a bipartisan judicial advisory committee. 
That committee reviewed his record, and spoke with judges, attorneys, 
and litigants who knew his work as a judge. The committee unanimously 
recommended that I forward his name to the President, and I did.
  The San Francisco Bar Association has rated him ``exceptionally well 
qualified.'' The American Bar Association has rated him ``well 
qualified''--their highest rating. And in 2009, a merit selection 
review panel, appointed by the U.S. District Court, thoroughly reviewed 
his record and recommended him for reappointment as a magistrate judge. 
That panel consisted of seven lawyers appointed by the district court. 
They solicited public comments on Chen's work as a judge. Only positive 
information was forthcoming.
  They talked to Federal prosecutors in the U.S. Attorney's Office. 
Again, the reports were uniformly favorable. Prosecutors called Chen's 
analytical skills ``exemplary'' and said his rulings were ``balanced 
and well reasoned.''
  Defense attorneys were similarly positive. They described Chen as 
``respectful'' and ``considered'' in his judgments.
  Partners with large law firms called Chen ``prompt,'' ``well-
prepared,'' ``very intelligent'' and ``decisive.''
  Overall, the panel recommended unequivocally that Chen be reappointed 
for a second 8-year term as a magistrate judge. Obviously, he has 
served 2 years of that second term.
  I have the panel's full report here and would be pleased to share it 
with any Senator who wishes to review it.
  Since Chen's nomination for the district court, the reports we have 
received in the Senate from those who know Chen's work as a judge have 
been similarly positive.
  We have received letters urging Chen's confirmation from Republicans 
and Democrats, public officials and law enforcement, judges, civil 
rights groups, business leaders, and private lawyers. Let me share a 
few with you.
  Judge Lowell Jensen, whom I have followed for decades, was appointed 
to the U.S. District Court by President Reagan. He also served as 
second in charge of the Department of Justice during the Reagan 
administration. He has worked closely with Chen on the Federal bench 
and had this to say about him, and this is a direct quote:

       I have found Judge Chen to be both an excellent jurist and 
     a person of high character. He brings a conscientious, 
     careful, and impartial approach to every issue and every 
     party. The decisions he makes reflect not only good judgment 
     but a complete commitment to the principles of fair trial and 
     the application of the rule of law. I support his 
     confirmation without reservation.

  I can say that Judge Jensen is one of the most distinguished judges 
in California.
  Former U.S. District Judge Fern Smith was also appointed by President 
Reagan to the Federal court. She writes:

       Both in my own dealings with [Judge Chen] and based on his 
     reputation among my former colleagues, I can attest to his 
     intellectual competence, his respect for the law, his 
     judicial temperament, and his integrity. I have no doubt that 
     Ed Chen would do honor to any of our 94 United States 
     District Courts.

  We have a letter from the president of the San Francisco Police 
Commission, a lifelong Republican, Thomas Mazzucco. He published an op-
ed in the Roll Call urging the Senate to confirm Chen and calling him 
``an experienced judge who understands the distinction between personal 
preference and judicial obligation, and who has always based his 
rulings--more than 300 decisions over eight years--solely on the law 
and the merits of a case.''
  The San Francisco Deputy Sheriffs Association said this:

       Chen has earned a reputation as an evenhanded jurist who is 
     constantly mindful of the role that judges such as himself 
     fulfill in our society: as keepers of the rule of law and 
     public trust in our system of justice.

  I have over 50 more letters, if anyone wishes to read them. They come 
from the mayors of San Francisco, Oakland, and San Jose; the sheriff, 
city attorney, former chief of police, and former U.S. Marshal of San 
Francisco; the last 10 presidents of the bar association of San 
Francisco; the congressional Asian Pacific American Caucus; the 
National Asian Pacific American Bar; and many others.
  The judgment is clear: Ed Chen is fair. He is impartial. He is an 
excellent jurist, and has been for 10 years, and he deserves to be 
confirmed.
  You come back to Washington and what happens? Here is the story. 
Despite this long judicial track record and broad bipartisan support, 
this nomination has been sitting in the Senate for more than 600 days.
  The President first nominated Chen on August 6, 2009. That was 643 
days ago. Since that time, the minority has required the nomination to 
be sent back to the President three different times. The Senate 
Judiciary Committee has had to consider the nomination four different 
times.
  This is extraordinary--but then the Republicans have an extraordinary 
search engine. I will talk about that in a minute.
  This is a district court nominee with 10 years of judicial 
experience, with not a blemish on it. When other judicial nominees have 
come before the Senate, they have been criticized because they didn't 
have judicial experience or because there was no judicial track record 
to review. Well, here is a nominee who has both. Ten years on the 
bench; bipartisan support and uniformly positive reviews; more than 350 
published opinions, and there has not been a single criticism of a 
single one. But his nomination has been sitting in the Senate for 600 
days and sent back to the President 3 separate times.
  I find this to be a deeply disappointing testament to the situation 
we face in the Senate today. Let me pose the question that Police 
Commissioner Mazzucco--a Republican--asked in his op-ed:

       If Judge Chen--an experienced judge whose judicial record 
     proves he is committed to the rule of law, without bias or 
     favor, and who is widely respected by the bar that has 
     practiced before him--isn't qualified for the Federal bench, 
     then who is?

  I echo that.
  So what happened here? Well, let me take a few moments to address a 
couple of the attacks that have been made on Judge Chen.
  First, Judge Chen has been criticized because he worked as a staff 
attorney for the ACLU long before becoming a judge. No one disputes 
that. Chen was once an advocate, and that is a fact. But he also has a 
10-year record to prove that he has made the transition. He was once an 
advocate. He is now a judge--and a darn good judge.
  As a coalition of Northern California Asian American Bar Associations 
wrote:

       Chen has made a successful transition from a zealous 
     advocate to a balanced and conscientious adjudicator who is 
     committed to the impartial and active administration of 
     justice.

  Former Federal prosecutors from the Northern District of California 
made the same point. They wrote:


[[Page 6900]]

       Judge Chen consistently treats all sides evenly and 
     impartially, and conducts himself with the utmost propriety, 
     as is fitting for a judge. . . . While we are aware of his 
     previous position as a staff attorney at the ACLU of northern 
     California, Judge Chen does not show favoritism toward the 
     parties or issues before him.

  The record is available. The evidence is in. Chen understands the 
unique role of the impartial adjudicator. He knows what it means to 
decide cases evenhandedly. He has been doing it for more than 10 years.
  Let me turn then to some speeches that the ``search engine'' turned 
up. Since 2009, the Washington Times and others have used a handful of 
quotes from speeches Chen has given to try to paint him as someone he 
is not. As happens far too often, those quotes have been cut, spliced, 
and taken out of context. Let me give you an example.
  The effort to label Chen as a ``radical'' is based on a speech he 
gave to students following the funeral of a man by the name of Fred 
Korematsu. I want to take a moment to explain Korematsu and the case. 
Some of you may be too young to remember Mr. Korematsu and his fight 
against Japanese internment during World War II, but I am not.
  One of the singular experiences of my lifetime was when my father 
took me, as a small child, to the Tanforan Racetrack. That racetrack 
was a few miles south of San Francisco. During World War II, it was 
taken out of action as a racetrack and turned into an internment camp. 
It was fenced with barbed wire. Small buildings lined the center 
portion of the track. This is a photo of it. Here is the racetrack and 
here are the buildings. This is where Japanese Americans were 
essentially incarcerated for the remainder of World War II.
  Let me show you this. This is the order, which is from the Western 
Defense Command and Fourth Army Wartime Civil Control Administration--
instructions to all Americans of Japanese ancestry living in the 
following area, which is the city and county of San Francisco, lying 
generally west of the north-south line, and it describes that. It says:

       All Japanese persons, both alien and non-alien, will be 
     evacuated from the designated area by twelve o'clock on 
     Tuesday, April 7, 1942. No Japanese person will be permitted 
     to enter or leave the above-described area after 8 a.m. 
     Thursday, April 7--

  That is over half of the city of San Francisco.

     without obtaining special permission from the provost marshal 
     at the Civil Control Administration.

  Then they are told where they are to report--to the Civil Control 
Station--to receive further instructions. This must be done between 8 
a.m. and 5 p.m., Thursday, April 2, or between 8 a.m. and 5 p.m., 
Friday, April 3.
  That is their notice. They turn up, get in a bus, and then this is 
where they go, and where they remained until the end of the war.
  One young Californian, Fred Korematsu, challenged the internment. He 
took his case all the way to the U.S. Supreme Court, and he argued that 
the U.S. Constitution did not permit loyal American citizens to be 
forced into these camps solely because of their Japanese-American 
heritage, which was the case here. The Supreme Court heard his case, 
but he lost in a decision that is considered by many to be a black 
stain on the jurisprudence of our Supreme Court.
  Decades later, in 1983, Korematsu challenged his conviction again. 
This time, he was represented by a team of volunteer lawyers, including 
Edward Chen. This team put forward newly discovered evidence that 
demonstrated that prosecutors in Korematsu's original case had withheld 
evidence, specifically, U.S. Government intelligence at the time 
indicating the internment was not justified.
  This time they won. So four decades after the original internment 
order, Fred Korematsu's conviction was overturned by the district 
court, and, four years later in 1987, President Ronald Reagan signed 
into law the Civil Liberties Act, issuing a formal, national apology 
for the Japanese internment.
  So this was the context of the speech in which Chen was speaking to a 
group of students and reflecting on the funeral of Fred Korematsu. He 
said in the speech that, at times, he had experienced ``feelings of 
ambivalence and cynicism when confronted by appeals to patriotism.'' He 
was referring to the internment of Japanese-American citizens for no 
cause other than they happened to be of Japanese heritage. I would 
think you could get a bit cynical about that. People who did not see 
this do not believe it ever happened. But it did happen, and it 
happened here. This was the condition in which people were kept. It is 
not right.
  But critics have picked out this line--``feelings of ambivalence and 
cynicism when confronted by appeals to patriotism''--and tried to use 
to paint Chen as unpatriotic. But they did not know the context. 
Sometimes things that have monumental importance at the time, such as 
the internment of Japanese-American citizens without due process, fade 
too quickly from our historical memory. I thought I would bring it back 
so this body could understand the total context.
  This was a very big deal. It was not a proud moment for our country. 
Congress and President Reagan rightfully issued a formal apology for 
the injustice that was done years later.
  To take a quote from a speech after Fred Korematsu's funeral and to 
use it to try to imply that Edward Chen does not love his country--it 
is shameful. It is also flatly inconsistent with the rest of the 
speech. Chen went on to say that when the congregation sang ``America 
the Beautiful'' at Korematsu's funeral, he was moved to tears because 
``the song described the America that Fred envisioned, the America 
whose promised beauty he sought to fulfill, an America true to its 
founding principles.''
  Fred Korematsu is no longer with us, but his daughter Karen sent me a 
letter about Edward Chen. Here are some of her words:

       My father's belief in our Constitution was unwavering, even 
     when he was treated unfairly. Like my father, Judge Chen is 
     adamant about upholding the Constitution, without bias or 
     prejudice.

  In my view, Edward Chen is a judicial nominee who has been treated 
extraordinarily unfairly. But he remains steadfast in his commitment to 
serving our country as a Federal judge, and he has a 10-year 
unblemished judicial track record to show that he will serve us 
exceedingly well.
  I urge my colleagues to vote yes on the nomination of Judge Edward 
Chen to be a district judge for the Northern District of California.
  I yield the floor. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ROBERTS. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cardin). Without objection, it is so 
ordered.
  All time has expired. The question is, Will the Senate advise and 
consent to the nomination of Edward Milton Chen, of California, to be 
United States District Judge for the Northern District of California?
  Mr. LEE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 56, nays 42, as follows:

                       [Rollcall Vote No. 68 Ex.]

                                YEAS--56

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl

[[Page 6901]]


     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--42

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Kyl
     Lee
     Lugar
     McCain
     McConnell
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune
     Toomey
     Wicker

                             NOT VOTING--2

     Rockefeller
     Vitter
       
  The nomination was confirmed.

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