[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Pages 9574-9580]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF MICHAEL H. SIMON TO BE UNITED STATES DISTRICT JUDGE FOR 
                         THE DISTRICT OF OREGON

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider

[[Page 9575]]

the following nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of Michael H. 
Simon, of Oregon, to be United States District Judge for the District 
of Oregon.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
of debate on the nomination, equally divided in the usual form.
  Mr. LEAHY. Mr. President, today the Senate will finally consider the 
nomination of Michael Simon to fill a judicial emergency vacancy on the 
District Court for the District of Oregon. Mr. Simon, the head of 
litigation at the Portland office of Perkins Coie, is one of the most 
highly regarded lawyers in the country. He spent 5 years as a trial 
attorney at the Department of Justice during the Reagan administration, 
including a stint as a Federal prosecutor, and 3 years as a volunteer 
judge pro tem on an Oregon county court. Mr. Simon's nomination has had 
the strong support of his home State Senators, Senator Wyden and 
Senator Merkley, since he was nominated nearly a year ago and has twice 
been reported by the Judiciary Committee with significant bipartisan 
support. I mention that because, traditionally, someone like this would 
go through almost the first day after he was reported.
  I thank the majority leader and the Republican leader for finally 
scheduling this vote. It is most unfortunate that the Republicans 
objected to considering this nomination when it was reported last year. 
That meant that we had to spend more time and taxpayer money to 
consider it a second time in the Judiciary Committee, and the 
nomination had to be reported again earlier this year. It should not 
have taken more than 4 months since the committee reported Mr. Simon's 
nomination for a second time for the Senate Republican leadership to 
finally consent to debate and a vote.
  This is, finally, the last of the judicial nominations reported last 
year that could and in my view should have been considered then. Now, 
after 6 months of unnecessary delay, the people of the District of 
Oregon may finally see a longstanding judicial vacancy filled by a 
highly qualified nominee who has always had bipartisan support from the 
days he was working for the Reagan administration. The Senate may 
finally be able, 6 months into this year, to start to focus on nominees 
who had hearings and were considered by the Judiciary Committee this 
year. There are currently 16 judicial nominees who were reported 
unanimously by the Judiciary Committee over the last several months who 
are still awaiting final Senate consideration and confirmation. They 
include nominees with the support of Republican home State Senators and 
nominees for judicial emergency vacancies. These delays mean that 
judicial vacancies around the country remain well above what they 
should and could be. With current vacancies hovering around 90 and many 
more upcoming, the Senate is being prevented from solving the vacancies 
crisis that the Chief Justice, President, Attorney General and judges 
around the country have urged us to end.
  When we take nominations considered 1 year and then delay them into 
the next year, it is wrong to say that you are ``moving right along.'' 
I have served with Presidents Ford, Carter, Reagan, the first President 
Bush, Clinton, the second President Bush, and now President Obama. 
During all that time, whether Democrats or Republicans were in the 
majority, no President had to put up with these unseemly delays, except 
for President Obama.
  The delay in considering this nomination is only the latest 
demonstration that those on the other side who say the majority leader 
can simply call up nominations are wrong. Senators know it is not true. 
If that were true, nominees like Mr. Simon would have been considered 
and voted on last year.
  Some Senators may seek to avoid responsibility for the Senate's 
historically slow pace of confirming judicial nominations and claim 
their hands are clean, but they know the Senate is a body that requires 
consent to avoid extensive delays. They know that if there is no 
consent, it takes the burdensome requirement of invoking cloture in 
order to end a filibuster and have a vote. Moving forward to address 
the ongoing judicial vacancy crisis--and it is a crisis--requires 
cooperation. It requires the minority to work together with the 
majority and set aside partisan differences for the good of the 
American people.
  Last week, the Senate was able to get consent to confirm the first 
two judicial nominees since May 17, even though almost a score of 
qualified nominees has been awaiting final confirmation since that 
date. In addition to the Simon nomination, there are 19 judicial 
nominations currently pending on the Senate's Executive Calendar. Of 
those, 16 are, by anyone's definition, consensus nominees. Seven of 
them were nominated to fill judicial emergency vacancies. Sixteen 
nominees were unanimously approved by every Republican and every 
Democratic Senator on the Judiciary Committee after thorough review, 
and an additional nominee was reported with only one Senator in 
opposition. All are supported by their home State Senators, Republicans 
and Democrats.
  These are the kinds of nominees who in past years would have been 
confirmed within days of being reported to the Senate. Instead, 
extended delays now burden every nomination before the Republican 
leadership finally consents, if it does, to take up nominations. Mr. 
Simon's nomination was first reported with bipartisan support last 
December. Three district court nominations reported unanimously by the 
Committee in early April remain stalled before the Senate, Paul Oetken 
and Paul Engelmayer of New York, and Romana Manglona of the Mariana 
Islands. All of these consensus nominations would easily have been 
confirmed if the majority leader was not blocked from bringing them up. 
We should not need to file cloture to vote on these kinds of consensus 
nominees, but that is what has been required by the Senate Republican 
minority. Incidentally, when we have filed for cloture on these 
nominees, for many of them we got a vote and they passed 
overwhelmingly.
  We should have regular votes on President Obama's highly qualified 
nominees instead of more delays. We should also restore the Senate's 
tradition--a tradition I can speak to as one who has been in the Senate 
for 37 years--of working to clear the calendar of pending nominations 
before a recess. Contrast that traditional practice with what the 
Senate did before the Memorial Day recess, when no judicial nominees 
were confirmed. With vacancies still totaling more than 90 on Federal 
courts throughout the country, and with nearly two dozen future 
vacancies on the horizon, there is no time to delay consideration of 
these nominations. If we were to take positive action just on the 
nominees who received unanimous support in committee, vacancies could 
be reduced below 80 for the first time since the beginning of President 
Obama's administration.
  With judicial vacancies continuing at crisis levels, affecting the 
ability of courts to provide justice to Americans around the country, I 
have been urging the Senate to vote on the judicial nominations 
reported favorably by the Judiciary Committee and pending on the 
Senate's Executive Calendar. My efforts have not yielded much success 
or sense of urgency. Nor have the statements by the Chief Justice of 
the United States, the Attorney General of the United States, the 
Federal Bar Association and a number of Federal judges across the 
country.
  Those who delay or prevent the filling of these vacancies must 
understand they are delaying and preventing the administration of 
justice. We can pass all the bills we want to protect American 
taxpayers from fraud and other crimes, but you cannot lock up criminals 
or recover ill-gotten gains if you do not have judges. The mounting 
backlogs of civil and criminal cases are growing larger.
  I think of the first 2 years of the last President Bush's term in 
office. During the 7 months that Republicans had the majority, they did 
not bother to hold a hearing on President Bush's nominees. But in the 
17 months that the Democrats were in charge, the Democrats held 
hearings and confirmed 100 of his

[[Page 9576]]

nominees. To their credit, in the following 24 months, the Republicans 
confirmed 105.
  Ah, for those days.
  Our ability to make progress regarding nominations has been hampered 
by the creation of what I consider to be misplaced controversy over 
many nominees' records. As with the long-delayed nomination of Judge 
Edward Chen, the supposed ``controversy'' that has delayed and 
obstructed the nomination of Michael Simon is the result of some 
Senators seeking to impose a partisan litmus test in place of our sworn 
constitutional duty to offer advice and consent on nominations. That 
Mr. Simon filed amicus briefs on behalf of the ACLU and several Jewish 
organizations in cases involving the First Amendment, discrimination 
against gay and lesbian individuals, and the rights of religious 
minorities does not render him unfit to be a judge. Our legal system is 
an adversary system, predicated upon legal advocacy for both sides. 
Certainly defending civil liberties is no vice. 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.
  I had hoped when 11 Republican Senators joined in voting to end a 
filibuster against Judge Jack McConnell of Rhode Island that the Senate 
was moving away from the narrow, partisan attacks on judicial 
nominations that have slowed us from making progress since President 
Obama took office. Yet the successful Republican filibuster of the 
nomination of Professor Goodwin Liu to the Ninth Circuit was one of the 
most disappointing votes I have seen in the U.S. Senate. There were no 
``extraordinary circumstances'' or justification for this partisan 
filibuster of a good man and brilliant nominee.
  In the wake of the filibuster, newspapers around the country decried 
the Senate for denying Professor Liu the up-or-down vote that 
Republican Senators argued just a few years ago every nominee was 
entitled to have when there was a Republican in the White House. The 
New York Times editorialized that the standard of ``extraordinary 
circumstances'' for filibustering nominees ``is meaningless if senators 
are going to define someone like Mr. Liu as a legal extremist.''
  The editorial continued:

       He is, not surprisingly, a liberal thinker who is 
     nonetheless squarely in the legal mainstream, having even 
     received the support of strong conservatives, including 
     Kenneth Starr and Clint Bolick.

  The New York Times also described the filibuster of Professor Liu as 
``payback'' making it ``harder to fill benches during this 
administration and many more to come.''
  The Denver Post wrote in an editorial:

       The Senate filibuster last week of federal appellate court 
     candidate Goodwin Liu wasn't just a defeat for the president 
     who nominated him. It signifies the dissolution of a truce 
     that had been struck years earlier in which senators had 
     generally agreed not to hold hostage qualified judicial 
     candidates from the opposing political party. It is a shame 
     it has come to this.

  The San Francisco Chronicle editorialized:

       Fair-minded people who have looked at Liu's record and 
     determined that he has the intellect and temperament to be a 
     superb appellate judge include prominent conservatives 
     Richard Painter, chief ethics lawyer in the Bush White House, 
     and Whitewater prosecutor Ken Starr. But neither fair play 
     nor intellectual honesty carried the day in the Senate, where 
     Liu's nomination remained bottled up through the efforts of 
     multiple Republicans who had opined (in the Bush years) that 
     it was unconstitutional for senators to deprive a judicial 
     nominee of an up-or-down vote.

  In an editorial entitled, ``Trashing of Court Nominees Must End,'' 
the Iowa City Press-Citizen wrote:

       What is most disturbing about Thursday's Senate vote is not 
     the fact that the Senate rejected this nominee, but how it 
     was done: by a filibuster. In other words, the Republicans 
     used the Senate rules to prevent a simple up-or-down vote on 
     the Liu nomination.

  I ask unanimous consent that copies of these editorials be printed in 
the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. The question for me about Mr. Simon is the same question I 
have asked about Judge Chen, Professor Liu, and every judicial nominee, 
whether nominated by a Democrat or a Republican President: whether he 
or she will have judicial independence. I don't care what their 
politics are. I don't care what party they belong to. I don't care who 
they have represented in the past. All I want to know is: Will they 
have judicial independence? Do they understand the role of a judge and 
how that differs from the role of an advocate?
  The judge has to protect everybody in their courtroom, on both sides. 
There is no question that Michael Simon is going to have judicial 
independence. So I hope Senators today will set aside their partisan 
litmus test and join me in supporting this fine nomination.

                               Exhibit 1

                [From the New York Times, May 22, 2011]

                             Breaking Faith

       ``I will not vote to deny a vote to a Democratic 
     president's judicial nominee just because the nominee may 
     have views more liberal than mine.''
       That was Senator Lamar Alexander, Republican of Tennessee, 
     promising in 2003 not to filibuster judicial nominees for 
     reasons of ideology. But on Thursday, Mr. Alexander, along 
     with 41 other Senate Republicans, voted to filibuster one of 
     President Obama's judicial nominees for that very reason--
     breaking a promise and kindling yet another row over a 
     president's right to appoint like-minded judges.
       The fight was over Goodwin Liu, a Berkeley law professor 
     nominated by the president for a seat on the Ninth Circuit 
     Court of Appeals. He lost on a vote of 52 to 43, short of the 
     60-vote requirement demanded by Republicans.
       He became the first Obama nominee to be successfully 
     filibustered, and the only nominee since 2005. That year, a 
     Senate ``Gang of 14'' agreed that such nominees should be 
     allowed an up-or-down majority vote except in extraordinary 
     circumstances.
       The group was correct in preserving the right to filibuster 
     the most extreme candidates, but the agreement is meaningless 
     if senators are going to define someone like Mr. Liu as a 
     legal extremist. He is, not surprisingly, a liberal thinker 
     who is nonetheless squarely in the legal mainstream, having 
     even received the support of strong conservatives, including 
     Kenneth Starr and Clint Bolick.
       What, specifically, made him so extraordinary that he was 
     not worthy of an up-or-down vote? The Republican argument 
     against him is laughably thin. ``He believes the Constitution 
     is a fluid, evolving document,'' said Jeff Sessions of 
     Alabama. John Cornyn of Texas falsely accused Mr. Liu of 
     holding the ``ridiculous view that our Constitution somehow 
     guarantees a European-style welfare state.''
       But other Republicans were more forthcoming about the real 
     reason for the blockade: Mr. Liu dared to criticize Justice 
     Samuel Alito Jr. as harshly conservative before he was 
     confirmed to the Supreme Court. The filibuster apparently was 
     payback, and the Republican eagerness for revenge has broken 
     faith and a clear understanding on the Senate floor. That 
     will make it harder to fill benches during this 
     administration and many more to come.
                                  ____


                  [From denverpost.com, May 28, 2011]

              Editorial: So Much for the Gang of 14 Truce

       The Senate filibuster last week of federal appellate court 
     candidate Goodwin Liu wasn't just a defeat for the president 
     who nominated him.
       It signifies the dissolution of a truce that had been 
     struck years earlier in which senators had generally agreed 
     not to hold hostage qualified judicial candidates from the 
     opposing political party.
       It is a shame it has come to this.
       Republicans may be celebrating the defeat of President 
     Obama's nominee, who on Wednesday officially withdrew his 
     nomination to the 9th U.S. Circuit Court of Appeals; however, 
     it's an action that surely will come back to bite them.
       Democrats are unlikely to forget. In fact, Senate Judiciary 
     Chairman Patrick Leahy, D-Vt., told reporters before the vote 
     that a Liu filibuster would mean Democrats would do the same 
     to the next Republican president's nominees.
       It would be regrettable if that were to happen. The so-
     called Gang of 14 had in 2005 joined forces to avert a 
     showdown on judicial candidates nominated by then-President 
     Bush.
       Seven Republican and seven Democratic senators, cleaving to 
     the ``advise and consent'' role of senators as enumerated in 
     the

[[Page 9577]]

     U.S. Constitution, agreed not to filibuster or block 
     qualified judicial candidates unless ``extraordinary 
     circumstances'' were in play.
       There was, at the time, little consensus as to what 
     constituted ``extraordinary circumstances'' and assuredly 
     even less agreement now.
       At the time of the compromise, which then-Sen. Ken Salazar 
     of Colorado took part in crafting, several senators said they 
     would know extraordinary circumstances when they saw them.
       The Republican filibuster of Liu, a University of 
     California-Berkeley law professor, will set precedents as to 
     how extraordinary circumstances will be defined. (Colorado's 
     U.S. Sens. Michael Bennet and Mark Udall, both Democrats, 
     voted against a filibuster.)
       Extraordinary circumstances, it seems, will come to mean a 
     candidate who holds views that are ideologically repugnant. 
     That is a dangerous standard.
       Liu is a liberal and far more so than other prominent 
     judicial nominees President Obama has sent to the Senate for 
     confirmation.
       We aren't crazy about some of Liu's positions either, but 
     he is qualified for the job. The American Bar Association, 
     which independently evaluates judicial nominees, gave him 
     their highest ranking: unanimously well-qualified.
       We have long favored an up-or-down vote on judicial 
     candidates, and this is no exception. Elections have 
     consequences, and those include the president getting to 
     choose judicial candidates, even if they are controversial.
       A return to the so-called judge wars in an effort to block 
     the president's power to fill vacancies on the federal bench 
     ultimately will serve neither party.
                                  ____


                    [From SFGate.com, May 20, 2011]

             Shame on GOP Senators Who Blocked Goodwin Liu

       Senate Republicans, dripping with partisanship and 
     hypocrisy, blocked an up-or-down vote Thursday on the 
     nomination of UC Berkeley law Professor Goodwin Liu to the 
     Ninth U.S. Circuit Court of Appeals in San Francisco.
       Their argument that Liu is a leftist ideologue does not 
     hold up to scrutiny. Instead, the continuing filibuster of 
     Liu's nomination carries the distinct scent of political 
     retribution.
       Fair-minded people who have looked at Liu's record and 
     determined that he has the intellect and temperament to be a 
     superb appellate judge include prominent conservatives 
     Richard Painter, chief ethics lawyer in the Bush White House, 
     and Whitewater prosecutor Ken Starr.
       But neither fair play nor intellectual honesty carried the 
     day in the Senate, where Liu's nomination remained bottled up 
     through the efforts of multiple Republicans who had opined 
     (in the Bush years) that it was unconstitutional for senators 
     to deprive a judicial nominee of an up-or-down vote. The 
     obstructionists included Sens. John McCain, R-Ariz., and 
     Lindsey Graham, R-S.C., who were among a group of 14 senators 
     who had pledged that they would filibuster a nominee only in 
     ``extraordinary circumstances.''
       Both McCain and Graham suggested, unconvincingly, that Liu 
     was sufficiently out of the mainstream to merit such extreme 
     action. Graham specifically mentioned Liu's ``outrageous 
     attack'' on Samuel Alito during his Supreme Court 
     confirmation hearings in 2006. But, again, on closer 
     inspection, Liu's point-by-point dissection of Alito's record 
     was meticulously documented with facts.
       Another undercurrent at play is a GOP fear that the 40-
     year-old Liu, with his sharp intellect and appealing manner, 
     might be a candidate to become the first Asian American on 
     the Supreme Court. The gamesmanship against this well-
     qualified nominee is a disgrace to the Senate and a 
     disservice to the judiciary.
                                  ____


                [From Press--citizen.com, May 23, 2011]

                  Trashing of Court Nominees Must End

       The judicial confirmation wars just got a fresh supply of 
     ammunition. The U.S. Senate on Thursday failed to muster the 
     votes needed to move forward on the confirmation of a nominee 
     for a federal judgeship.
       That almost certainly ended the Obama administration's two-
     year struggle to win confirmation for Goodwin Liu to the 9th 
     Circuit U.S. Court of Appeals.
       The rejection also shattered any hope that partisan battles 
     over confirmations might finally end. Democrats outraged over 
     this loss will no doubt remember this and look for an 
     opportunity for payback. This has been the story since 1987, 
     when Senate Democrats led the effort to defeat Robert Bork, 
     Ronald Reagan's nominee to the U.S. Supreme Court. Since 
     then, both parties have been guilty of trashing the potential 
     judicial careers of clearly fit nominees: Republicans 
     skewering Democratic presidents' nominees; Democrats 
     returning the favor for Republican presidents.
       Sadly, Sen. Chuck Grassley, R-LA, played a role in 
     defeating the Liu nomination. This is especially 
     disappointing since, as the ranking Republican on the Senate 
     Judiciary Committee--which vets judicial nominees--Grassley 
     could have helped set a new tone on confirmations. He has 
     done just the opposite.
       Grassley has consistently opposed Liu's confirmation 
     because, he has said, the professor and associate dean at the 
     University of California-Berkley Law School is has made 
     numerous controversial statements in his writings and 
     speeches that express an ``activist judicial philosophy'' and 
     because has no prior judicial experience. In a prepared 
     statement, Grassley said ``Liu holds a view of the 
     Constitution that can only be described as an activist 
     judicial philosophy'' and if appointed to the court, ``he 
     will bring a personal agenda and political ideology into the 
     courtroom.''
       That is one opinion, and Grassley is certainly entitled to 
     it. Others--including several conservative Republican 
     lawyers, including former Whitewater prosecutor Kenneth Starr 
     and two former lawyers in the Bush administration--disagree. 
     Liu was given a unanimous ``well qualified'' endorsement from 
     the American Bar Association, and his resume bristles with 
     sterling academic and professional credentials. Liu would 
     have been the first Asian-American judge on the 9th Circuit 
     Court.
       What is most disturbing about Thursday's Senate vote is not 
     the fact that the Senate rejected this nominee, but how it 
     was done: by a filibuster. In other words, the Republicans 
     used the Senate rules to prevent a simple up-or-down vote on 
     the Liu nomination. The effort to end the filibuster fell 
     eight votes short of the 60 needed. But had the 52 senators 
     who voted for cloture voted for confirmation, Liu would be 
     headed for the bench.
       This is the very same tactic Republicans (including 
     Grassley) rightly condemned when Democrats filibustered to 
     block Republican nominees. They said that all presidential 
     nominees deserve an up-or-down vote, and they were right 
     then.
       How soon they forget.
       Alas, Democrats who are outraged by Thursday's move will 
     not forget, and this mindless back-and-forth battle over 
     judges will continue, probably forever. It is a sad day for 
     the courts, for bipartisanship in the Senate and for the 
     nation.

  Mr. GRASSLEY. Today, the Senate will consider the nomination of 
Michael Simon, nominated to be a U.S. district judge for the District 
of Oregon. This nominee was reported out of Judiciary Committee with 
four votes in opposition. I am one of those who opposed the nominee and 
would like to detail my reasons for doing so.
  Mr. Simon received his B.A. summa cum laude from the University of 
California, Los Angeles, in 1978, and J.D. cum laude from Harvard Law 
School in 1981. He began his legal career as a trial attorney with the 
Antitrust Division of the Justice Department.
  In 1985, he spent 6 months as special assistant U.S. attorney for the 
Eastern District of Virginia and argued one appeal before the Fourth 
Circuit. Mr. Simon joined a large law firm as an associate in 1986. 
Since 1990, he has been a partner and the head of litigation for the 
firm's Portland office.
  Throughout his career, Mr. Simon has advocated on behalf of the 
American Civil Liberties Union of Oregon as a pro bono attorney. But 
his involvement in the ACLU goes beyond mere representation of a 
client. Mr. Simon has been a member of the ACLU of Oregon since 1986. 
He is an active member of their Lawyers' Committee and served as a 
board member from 1997 to the year 2004, the vice president for 
legislation 1997 to 1998, and vice president for litigation from 2000 
to 2004.
  I recognize that judicial nominees should not be evaluated solely on 
client lists or memberships, that would be very unfair. However, these 
are relevant bits of information about a nominee.
  Listen to the words of one of my Democratic colleagues, who inferred 
that the ACLU is beyond a moderate and mainstream approach. This was 
stated during the debate on judges nominated by President Bush:

       If you look at the records of these judges and you put 
     scales, left to right, 10 being the most liberal and 1 being 
     the most conservative, these judges are ``ones'', to be 
     charitable. When Bill Clinton nominated judges, he nominated 
     mainly sixes and sevens, people who tended to be a little 
     more liberal, but were moderate and mainstream--very few 
     legal aid lawyers or ACLU charter members, much more 
     prosecutors and partners in law firms.

  My colleague recognized that ACLU lawyers were beyond moderate and 
mainstream. I would complete his analysis and rank this organization as 
very liberal.
  In Mr. Simon's case, there has been concern about whether or not he 
shares the far out views of the ACLU. On this

[[Page 9578]]

question, Mr. Simon refuses to provide a clear answer. At his hearing 
he stated that ``we do not necessarily agree with all of the positions 
taken by the American Civil Liberties Union.'' When asked in follow-up 
questions to describe the legal or policy position with which he 
disagrees, he argued that his advice to the ACLU was confidential and 
subject to the attorney-client privilege. In a second round of 
questions, committee members clarified they were not asking about 
advice to a client, but policy positions with which he disagreed. This 
was met with ``I am not at liberty to describe the legal or policy 
positions advocated by the ACLU with which I disagree.''
  The ACLU does hold very liberal views, and Mr. Simon has been the 
voice for those views. For example, Mr. Simon wrote a letter to the 
Tillamook County Courthouse in Oregon expressing the ACLU's concern 
with religious Christmas signs and decorations. The letter encouraged 
the county to repeal its resolution that deemed the county a ``Merry 
Christmas County.''
  On issue after issue, Mr. Simon refused to disassociate himself from 
legal and policy positions held by the ACLU, that are far outside the 
mainstream. This includes the legalization of drugs, the 
unconstitutionality of the death penalty, the unconstitutionality of 
the Pledge of Allegiance, the ACLU's opposition to tax exemptions for 
churches and extreme views regarding separation of church and state.
  Mr. Simon's views on the war on terrorism and a liberal view on civil 
liberties are troubling to me. In a speech in 2007, Mr. Simon argued 
that Americans' civil liberties have been threatened because of 
measures undertaken following 9/11. In his speech, he said that ``our 
thinking would be clearer and our solutions more effective if we stop 
thinking about--and stop calling--terrorism a `war' or a `crime,''' and 
argued that calling military action against terrorism a ``war'' 
``implies that a military conquest is the best tool for this fight'' 
and that terminology ``may limit more creative and even more successful 
techniques to promote and protect our security.''
  Perhaps Mr. Simon agrees with the Attorney General who, in a recent 
speech, asserted that ``our most effective terror-fighting weapon'' is 
our article III [civil] court system. I certainly disagree with that 
assertion, and I think most national security experts, our military, 
and most Americans would disagree as well.
  Mr. Simon appears to approach constitutional theory with an activist 
slant. In remarks before a conference sponsored by the Oregon Lawyers 
Chapter of the American Constitution Society on May 23, 2007, Mr. Simon 
stated:

       There is also support for the conclusion that the Founders 
     did not believe that their intentions and understanding 
     should bind future generations. That may be the only real 
     `original intent' of the Founders.

  That quotation makes me wonder, if the Constitution wasn't going to 
have any hold on future generations, why did the drafters spend so much 
time during that summer of 1787--and even longer periods of time--
getting the Constitution adopted. That seems to be the implication of 
what he says there.
  It is no surprise, then, that Mr. Simon has a hostile view of 
religion in the public square. He continued in those remarks, ``There 
is also support for the proposition that the concept of `separation of 
church and state' was an `unfolding and evolving' idea at the time of 
the Founders. . . .''
  Mr. Simon appears to demand an absolute wall of separation between 
church and state, as opposed to the U.S. Government promoting a 
specific religion. He has argued against religious displays on public 
land, against religious visitors to schools, against a coach praying 
with his football players. I assume that means even if you're praying 
that they don't get injured. Mr. Simon has argued that it is 
unconstitutional under the establishment clause to teach intelligent 
design in public school science classes.
  Based on his views regarding the war on terror, his activist approach 
to constitutional interpretation, his hostility to religion in the 
public square, and his remarks and advocacy of ideas which indicate a 
legal view that is outside the mainstream, I will oppose this 
nomination. I ask my colleagues to do likewise.
  Mr. LEAHY. Mr. President, I see my two friends--the two outstanding 
and distinguished Senators from the State of Oregon--and I yield the 
floor to them.
  The PRESIDING OFFICER. The junior Senator from Oregon.
  Mr. MERKLEY. Mr. President, I thank the chairman of the Judiciary 
Committee for his comments and perspective on judicial independence. It 
is extremely important in having a court system that can both be 
effective and reflect the faith of the citizens of this Nation that 
they have a system of true justice.
  I rise in support of the nomination of Michael Simon to the post of 
U.S. District Judge for the District Court of Oregon. Quite simply, 
Michael Simon is a man of enormous integrity, intellectual breadth and 
depth, and good old-fashioned common sense and decency. Michael Simon 
has earned a reputation as a top lawyer in commercial litigation, 
appellate law, and constitutional law. He is respected nationally. He 
is eminently qualified for this seat.
  After graduating summa cum laude from UCLA, he attended Harvard Law 
School, where he graduated cum laude. He began his legal career in the 
Department of Justice's antitrust division, where he served as a trial 
attorney for 5 years. During this time, he also volunteered for and 
served as a special assistant U.S. Attorney for the Eastern District of 
Virginia.
  Mr. Simon is currently a partner at Perkins Coie in Portland, where 
he has worked since 1986 and earned a reputation as one of the 
Northwest's real legal stars. He has engaged in extensive pro bono work 
and has volunteered for many nonprofit organizations. He has served as 
an adjunct faculty member at Lewis & Clark Law School, teaching 
antitrust law, drawing on his earlier life experience. He has also 
served as a pro tem judge on the Multnomah County Circuit Court.
  In the courts, Michael has made his name as a staunch defender of 
consumer protection, antitrust laws, and the first amendment. He has 
found the time to be deeply involved in his community, displaying a 
commitment to voluntarism, civic participation, and public service.
  For years, Michael has been a leader of the Classroom Law Project, a 
nonprofit that prepares youths to become active, engaged and informed 
participants in our democratic society. Serving as president, and then 
as a board member, he has helped bring a love of civics and democracy 
to thousands of public school students across Oregon.
  In addition to his service in government and civic organizations, Mr. 
Simon has been an active member of the Jewish community in Portland. He 
is a familiar and beloved face at his temple, Beth Israel, and has 
served on the boards of the American Jewish Committee and the Jewish 
Federation of Greater Portland.
  In short, Michael Simon exemplifies the traits that every Federal 
district judge should possess--a brilliant legal mind and a heart 
dedicated to service, fairness, and community.
  The U.S. District Court of Oregon has historically had a reputation 
as a place of efficient and fair courts led by outstanding professional 
jurists. I know Michael Simon will uphold this tradition. He will be an 
outstanding judge who will continue the district's tradition of 
fairness and commitment to public service, and he will fill a critical 
vacancy in this district.
  Michael Simon is an excellent nominee, and I urge all my colleagues 
to reflect on his record and his capacity in multiple dimensions 
throughout his life that brings a seasoned judgment and the 
independence of mind to the judicial system. I urge my colleagues to 
support his nomination.
  I thank the Chair.
  The PRESIDING OFFICER. The senior Senator from Oregon.
  Mr. WYDEN. Mr. President, Senator Merkley has said it very well this 
morning. I had a chance to speak about Michael Simon yesterday, and I 
want to make a few additional remarks this morning.

[[Page 9579]]

  After the retirement of Senator Hatfield, whom we all know is still 
beloved by many here in the Senate, I have had a chance to work with 
our former colleague Senator Gordon Smith and now with Senator Merkley 
to send to both Republican and Democratic Presidents some outstanding 
men and women for their consideration for the District Court in Oregon. 
Today, Senator Merkley and I send to the Senate for its consideration 
another outstanding individual--someone who is going to take his place 
with the other leaders who have been named to the district court of 
Oregon.
  Michael Simon is one of those persons who, when you look at what kind 
of jurist you want to have, meets all the essential tests. He is a 
thoughtful man, he is a fair man, and he is an individual who always 
wants to have all the facts in front of him before he makes a reasoned 
judgment. When I look at his background--and Senator Merkley has laid 
out several of the areas that were special and that we are especially 
proud of, his work in the private sector at Perkins Coie--I come 
particularly to his work in consumer protection and the antitrust 
field, because it highlights the kind of person Michael Simon is.
  He made one of his most notable contributions to strengthening 
consumer protection law working on behalf of the Department of Justice 
on the case of the United States v. American Airlines, and he 
successfully argued then for extending the reach of the Sherman Act to 
include monopolization and attempted monopolization.
  This is not a partisan issue. This is the kind of issue that helps 
all Americans--all Americans, regardless of their political philosophy 
or party they belong--to benefit from the fruits of a more competitive 
American marketplace.
  Michael Simon's work in that area benefits each and every one of us 
every single day.
  Second, as I talked about yesterday, and Senator Merkley has 
described eloquently this morning, we are very proud of Michael Simon's 
championing work as a volunteer. I can tell you, that it seems as 
though virtually every good cause that comes across my desk at home 
seems to have Michael Simon's name on it urging that Oregonians 
participate and volunteer their time.
  We are especially proud of his work on behalf of children. His work 
with the Classroom Law Project, his work at the Waverly Children's 
Home, where he was past head of the board of directors, these kinds of 
positions are ones where you make a difference. These kinds of 
positions give Mr. Simon a chance to teach not just right and wrong to 
young people but a chance to give them the kind of background about the 
rule of law and the rights and responsibilities we want to instill in 
our children. That is why we are very proud to bring to the attention 
of the Senate his work with Oregon's youngsters.
  Finally, I want to stress the immediacy of the need for the Senate to 
confirm Michael Simon today. This seat has been vacant for 664 days. It 
is just 1 of 36 judicial emergencies. As it stands, there are nearly 90 
Federal court vacancies, some of which have been empty for more than 3 
years. Judicial emergencies are not just some sort of Washington phrase 
to throw around on the floor of the Senate. They are actually an 
emergency defined by the Chief Justice of the United States, John 
Roberts. And to earn this designation, filings must exceed 600 per 
judge in district courts and 700 per judge in circuit courts.
  Justice delayed is justice denied. Until the Senate begins to move 
expeditiously to fill these vacancies, justice will continue to be 
denied to thousands of Americans who deserve due process.
  Both Senator Merkley and I are very grateful to Senator Leahy and 
Senator Grassley, the majority leader Senator Reid, and the minority 
leader Mr. McConnell for their work to bring this nomination to the 
floor.
  I hope colleagues who have questions about Michael Simon will come to 
Senator Merkley and myself. We will stay on the floor and be available 
to colleagues to answer any questions.
  But this is a good and decent man who possesses all of the requisite 
qualities we would like in a jurist, whether it is his work in the 
private sector, whether it is his pioneering work in the field of 
extending the reach of the Sherman Act to deal with monopolies. This is 
a person who will reflect great credit on the District Court of Oregon 
and on the legal system of our country.
  I hope all our colleagues will support Michael Simon today.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.


                           Panetta Nomination

  Mr. CHAMBLISS. Mr. President, I rise to support the nomination of 
Leon Panetta to be the 23rd Secretary of Defense. Director Panetta has 
a long history of government and private sector service and experience, 
including service in the U.S. Army.
  Director Panetta served ably for eight terms as a member of the U.S. 
House of Representatives, rising to be chairman of the House Budget 
Committee. He left that position to be President Clinton's Director of 
the Office of Management and Budget and later served 2\1/2\ years as 
President Clinton's Chief of Staff, which is where I got to know him 
well. He then spent 10 years codirecting a foundation with his wife 
that seeks to instill in young men and women the virtues and values of 
public service. Knowing Director Panetta, this comes as no surprise. In 
February 2009, he became the 19th Director of the Central Intelligence 
Agency, and it is in this capacity where I have had the opportunity to 
work very closely with him over the last several years and consider him 
a close friend.
  Director Panetta has been an outstanding leader of the Central 
Intelligence Agency, and it is bittersweet to see him leave. Director 
Panetta is a true leader in every sense of the word. He understands how 
Capitol Hill works since he served in Congress for 16 years. He has 
always shown the Senate Select Committee on Intelligence, which is the 
committee that oversees his organization, the right kind of deference 
and responded to our questions and concerns promptly and directly.
  Although he leaves the CIA, he is not leaving the administration and 
I am quite pleased that I will continue to have the opportunity to work 
with him as Secretary of Defense. I think he has the right 
qualifications for his new job. He understands budgets, and in this 
time of economic austerity we need someone with that knowledge and his 
ability to understand and manage the resources of a huge organization 
such as the Department of Defense.
  In his current capacity as Director of the CIA, he has also worked 
and built strong partnerships with the Department of Defense, having 
been involved in the planning and execution of numerous joint 
operations, including of course the most recent operation against Osama 
bin Laden. He will continue this strong partnership in his new 
position, and I know he will continue to ensure that these two 
organizations work closely together and cooperate successfully in the 
interest of our national security and for the safety of our country.
  Director Panetta has a very challenging job ahead of him. The United 
States is involved in three major military operations overseas, as well 
as countless smaller ones. Budgets are extremely tight, and they are 
only going to get tighter. However, no country has the global interests 
and global responsibilities that the United States has, and for that 
reason we need a military that can protect those interests and carry 
out those responsibilities. Director Panetta will need to decide how we 
do that and will also help decide what, if anything, the United States 
can and needs to stop doing.
  He will also need to take responsibility for shaping our military to 
be prepared for the future. For the last decade, our military has 
necessarily been focused on fighting and winning the conflicts we are 
in; namely, Iraq and Afghanistan. We continue to meet that challenge, 
and I am very optimistic that we, with the Afghan people, will prevail 
against insurgents in Afghanistan, just as we prevailed with

[[Page 9580]]

the Iraqi people against insurgents in Iraq. However, we can't take our 
eyes off the future. As a nation, we have a very poor record of 
predicting where our next conflict will come from.
  I have heard it said that when Secretary McNamara had his 
confirmation hearing to be Secretary of Defense in 1961, no one asked 
him a question about a country called Vietnam. And when Secretary 
Rumsfeld had his confirmation hearing in 2001, no one asked him about 
Afghanistan. But, in both cases, those were the issues that would 
dominate their tenure as Secretary of Defense.
  If I might say, Director Panetta, if a new global hot spot dominates 
your tenure as Secretary of Defense, there is a good chance that it 
will be one that no one asked you about at your confirmation hearing.
  For this reason, our Armed Forces need to be prepared to fight 
conflicts that are unlike our current ones. We cannot, and should not, 
assume that the next war will be like the current one. We need to be 
prepared for both high-end and low-end conflict. We need to be prepared 
not just so that we can fight and win these conflicts but so we can 
deter potential adversaries and not have to fight in the first place.
  I know Leon Panetta realizes that, and I know he will continue to be 
committed to ensuring our military is as prepared as possible to meet 
whatever challenges may come our country's way. That will not be easy, 
and it will take a man of his ability to do this successfully and in a 
way that takes into account our current fiscal situation. However, I 
believe the President has chosen the right man for the job.
  I support Leon Panetta's nomination to be the next Secretary of 
Defense, and I encourage my colleagues to support that nomination as 
well.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, let me first say I thought the statement 
from the distinguished Senator from Georgia was spot on, and I 
particularly appreciated his point that when we confirm Leon Panetta to 
head Defense, no one can possibly predict what kind of challenges he 
will face there. But this is the kind of person who, because of ability 
and background, is up to any kind of challenges that are thrown to him. 
So I want to associate myself with my colleague from Georgia.
  Mr. President, I would suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WYDEN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Mr. President, I ask unanimous consent to yield back the 
remainder of the time and I ask for the yeas and nays.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  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 Michael H. Simon, of Oregon, to be United States District Judge for 
the District of Oregon? On this question, the yeas and nays have been 
ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from New Hampshire (Ms. Ayotte).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 64, nays 35, as follows:

                       [Rollcall Vote No. 92 Ex.]

                                YEAS--64

     Akaka
     Alexander
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Cornyn
     Durbin
     Feinstein
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--35

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

                             NOT VOTING--1

       
     Ayotte
       
  The nomination was confirmed.

                          ____________________