[Congressional Record (Bound Edition), Volume 158 (2012), Part 12]
[Senate]
[Pages 16319-16323]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF MICHAEL P. SHEA TO BE UNITED STATES DISTRICT JUDGE FOR 
                      THE DISTRICT OF CONNECTICUT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider Calendar No. 676, which the 
clerk will report.
  The legislative clerk read the nomination of Michael P. Shea, of 
Connecticut, to be United States District Judge for the District of 
Connecticut.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, the Senate is finally being allowed to 
vote today on the nomination of Michael Shea to be a district judge on 
the U.S. District Court for the District of Connecticut. It has taken 
far too long for this day to come, but he will be confirmed and I 
congratulate him and his

[[Page 16320]]

family on his confirmation and I congratulate the two Senators from 
Connecticut on finally having this nomination come to a vote.
  I mention this not to urge that we confirm him because we will--and I 
will very proudly vote for him--but Michael Shea is another nominee 
whose nomination was stalled for months for no good reason. The 
Judiciary Committee--and the distinguished Presiding Officer serves on 
that committee and will recall--we gave his nomination strong 
bipartisan support more than 7 months ago. He has the support of both 
home State Senators--both Senator Lieberman and Senator Blumenthal. He 
has significant litigation experience. He is a graduate of Yale Law 
School. He clerked for the conservative Judge James Buckley in the U.S. 
Court of Appeals for the DC Circuit following graduation.
  We have to ask, why did it take 7 months for the Senate to finally 
consider his nomination--after waiting 7 months, we will talk about it 
for 20 minutes, and then we will vote on his nomination. Why the 7-
month delay? Republican obstruction.
  After this vote, the Senate remains backlogged with 17 judicial 
nominations that go back to before the August recess. Senate 
Republicans are establishing another harmful precedent by refusing to 
proceed on judicial nominees with bipartisan support before the end of 
the session. They held up judicial nominees 3 years ago, they did it 2 
years ago, they did it last year, and now they are doing it again this 
year.
  They have found a new way to employ their old trick of a pocket 
filibuster. They stall nominees into the next year, and then they force 
the Senate, in the new year, to work on nominees from the past year. 
They delay and delay and delay and push other confirmations back in 
time and then cut off Senate consideration of any nominees.
  How else does anyone explain the Republican Senate opposition to 
William Kayatta of Maine, who is supported by the two Republican 
Senators from Maine? How else to explain the Republican filibuster and 
continuing opposition to Robert Bacharach of Oklahoma, who has the 
support of Senator Inhofe and Senator Coburn, the two Republican 
Senators from Oklahoma? How else to explain their adamant refusal to 
consider the nomination of Richard Taranto to the Federal Circuit, when 
the Judiciary Committee had seven of the eight Republican Senators 
voting for him? One, Senator Lee, cast a ``no'' vote but said it was a 
protest on another matter. But every single Democrat voted for him.
  These delays may serve some petty political purpose, but the American 
people do not want petty political purposes. They want our Nation's 
courts to be staffed. They want the American people who seek justice to 
be able to get it. So we should take action on all pending nominees and 
reduce the damagingly high number of judicial vacancies. Federal 
judicial vacancies remain above 80. By this point in President Bush's 
first term, we had reduced judicial vacancies to 28.
  There were more than 80 vacancies when the year began. There were 
more than 80 vacancies this past March when the majority leader was 
forced to take the extraordinary step of filing cloture motions on 17 
district court nominations--something I had never seen in my 37 years 
here. There are going to be at least 80 vacancies after today. Before 
we adjourn, we ought to at least vote on the 17 pending nominations 
that could have been and should have been confirmed before the August 
recess.
  From 1980 until this year, when a lame duck session followed a 
Presidential election, every single judicial nominee reported with 
bipartisan Judiciary Committee support has been confirmed. That is 
whether there was a Republican or Democratic President or a Republican-
controlled or Democratic-controlled Senate.
  According to the nonpartisan Congressional Research Service, no 
consensus nominee reported prior to the August recess has ever been 
denied a vote--before now. Somehow, this President is treated 
differently than all the other Presidents before him. I have been here 
with President Ford, President Carter, President Reagan, the first 
President Bush, President Clinton, the second President Bush, and now 
President Obama. None of those other Presidents were treated in the way 
this President is treated. It is something Senate Democrats have never 
done in any lame duck session, whether after a Presidential or midterm 
election.
  In fact, Senate Democrats allowed votes on 20 of President George W. 
Bush's judicial nominees, including 3 circuit court nominees, in the 
lame duck session after the election in 2002. I remember. I was the 
chairman of the Judiciary Committee. I moved forward with those votes, 
including one on a very controversial circuit court nominee. The Senate 
proceeded to confirm judicial nominees in lameduck sessions after the 
elections in 2004 and 2006. Actually, in 2006, we confirmed another 
circuit court nominee.
  We proceeded to confirm 19 judicial nominees in a lame duck session 
after the elections of 2010, including five circuit court nominees. The 
reason I am not listing confirmations for the lame duck session at the 
end of 2008 is because that year we had proceeded to confirm the last 
10 judicial nominees approved by the Judiciary Committee in September 
and long before the lame duck session.
  That is our history. That is our recent precedent. Those across the 
aisle who contend that judicial confirmation votes during lame duck 
sessions do not take place are wrong. The facts are facts are facts. It 
is past time for votes on the 4 circuit court nominees and the other 13 
district court nominees still pending on the Executive Calendar.
  Let's do our job. This is what the American people pay us to do. 
Let's vote up or vote down, but let's vote.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Iowa.
  Mr. GRASSLEY Mr. President, today, the Senate turns to the 
confirmation of another U.S. district judge. According to the 
Congressional Research Service, the Senate rarely confirms judicial 
nominees during a lameduck session in a Presidential election year. It 
did so in a very limited fashion in 1944, 1980, and 2004.
  The last time a President was re-elected--President Bush in 2004--
only three judicial nominees were confirmed following the election. 
That year, following President Bush's re-election, 23 judicial 
nominations that were pending either on the Senate Executive Calendar 
or in the Judiciary Committee were returned to the President when the 
Congress adjourned in December.
  Today's vote, the second post-election judicial confirmation, is 
somewhat of a milestone for this President. It is the 100th judicial 
confirmation during this Congress. That happens to be the same number 
of confirmations during President Bush's first term when the Democrats 
controlled the Senate and chaired the Judiciary Committee. I have heard 
the chairman rightfully take pride in that accomplishment. Today we 
match that record. So I think that the continued complaints we hear 
about how unfairly this President has been treated are unfounded.
  Despite our cooperation, we continue to hear the other side argue 
that since the President won re-election, we shouldn't follow past 
practice, but rather we should confirm a large number of nominations 
during this lameduck session. Recently one of my colleagues on the 
other side stated: ``From 1980 until this year, when a lame duck 
session followed a presidential election, every single judicial nominee 
reported with bipartisan Judiciary Committee support has been 
confirmed.''
  I suppose this is meant to imply there is some long record of routine 
confirmations following a Presidential election. But again, that is 
simply not the case. The record is one circuit confirmation in 1980, 
and three district confirmations in 2004. That is it. From 1980 through 
2008, those four nominations represent the entire list. With today's 
vote we will add two more confirmations to that exclusive list.
  This year we have already confirmed 32 district judges and 5 circuit 
judges.

[[Page 16321]]

Today's vote meets or exceeds the confirmations for Presidential 
election years in recent memory. In fact, going back to 1984, there has 
been only one Presidential election year in which more district judges 
were confirmed. Let me emphasize that point: In only one of the past 
eight Presidential elections have more district nominees been 
confirmed.
  Today we vote on the nomination of Michael P. Shea, to be U.S. 
district judge for the District of Connecticut. With this confirmation, 
the Senate will have confirmed 160 of President Obama's nominees to the 
district and circuit courts. During the last Presidential election 
year, 2008, the Senate confirmed a total of 28 judges--24 district and 
4 circuit. This Presidential election year we have exceeded those 
numbers. We have confirmed 5 circuit nominees, and Mr. Shea's 
confirmation will be the 33rd district judge confirmation. That is a 
total of 38 judges this year versus 28 in the last Presidential 
election year.
  Finally, I would note that Mr. Shea was not reported out of committee 
by a unanimous vote. There were concerns about part of his record, and 
that resulted in a few ``no'' votes in committee. I supported the 
nomination in committee and will do so again today. But for those who 
argue that the Republicans have delayed this nomination just to 
obstruct, that is not the case.
  Mr. Shea received his B.A. from Amherst College in 1989 and his J.D. 
from Yale Law School in 1993. Following graduation from law school, he 
clerked for James Buckley, U.S. circuit judge for the District of 
Columbia Circuit. Mr. Shea began his legal career in 1994 at Clearly, 
Gottlieb Steen & Hamilton in Washington, DC where he worked primarily 
on civil and criminal antitrust matters. In October 1995, he moved to 
Clearly Gottlieb's Brussels, Belgium, office, where he continued to 
work on antitrust matters, including European Union antitrust issues, 
as well as international business transactions in Eastern Europe and 
Africa. In the summer of 1998, he returned to the DC office where he 
assisted in defending a corporate client in a large money laundering 
prosecution.
  In September 1998, Mr. Shea returned to Connecticut, accepting a 
position as an associate at Day, Berry & Howard, now known as Day 
Pitney. In 2003, he became a partner with the firm. His career there 
has spanned a broad range of civil and criminal litigation. His 
practice included trials and appeals in commercial, civil rights, 
personal injury, criminal, family, and other cases.
  He has tried nine cases to verdict, judgment or final decision. In 
the past decade, he argued 20 appeals, including 6 at the U.S. Court of 
Appeals for the Second Circuit. The American Bar Association's Standing 
Committee on the Federal Judiciary gave him a Unanimous Qualified 
rating.
  Again, I support this nomination and congratulate Mr. Shea on his 
anticipated confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I rise to express my strong support for 
the nomination of Michael Shea to serve as the next Federal district 
court judge for the District of Connecticut. As the Presiding Officer 
heard--and I did as well--Chairman Leahy and Senator Grassley expressed 
very different analyses of the pace at which this Senate is confirming 
judicial nominations of President Obama, but I note, with gratitude, 
that both of them expressed support for this particular judge, Michael 
Shea, and it gives me confidence that he will receive the confirmation 
vote today that he deserves.
  I suppose, because I am at the end of the privilege of serving as a 
Senator for 24 years, I am looking back at various opportunities and 
experiences I have had.
  It strikes me at this moment that I should say what I am sure is felt 
by all of my colleagues; that is, while it is often said of Presidents 
of the United States that the most important decisions they make are 
the people they put on the Federal bench, particularly Justices of the 
Supreme Court because those Justices and judges serve long after a 
President has left office and continue to affect the course of our 
country of justice under law, the same really can be said with regard 
to Senators and the role we play in proposing nominees for the Federal 
district courts in our States.
  I must say as I look back at the time I have been privileged to be in 
the Senate, working with Senator Dodd and now with Senator Blumenthal, 
I am proud of the people we have helped onto the district courts for 
the District of Connecticut, obviously, with a lot of support from 
nominating Presidents of both parties and from people of both parties 
in the Senate Judiciary Committee and on the Senate floor.
  The district court bench in Connecticut is an impressive group and 
quite a diverse one as well. Michael Shea, if confirmed, will add to 
its excellence and its legal heft. In November of last year, Judge 
Christopher Droney left the district court when the Senate confirmed 
his nomination to serve on the Federal Court of Appeals for the Second 
Circuit. Judge Droney's vacancy gave Senator Blumenthal and me the 
opportunity to recommend his replacement.
  We took this responsibility seriously. We brought together an 
advisory panel of nine Connecticut citizens who considered more than 20 
candidates for this spot. The panel included a former chief justice of 
the Connecticut Supreme Court, a former U.S. attorney, several partners 
at major Connecticut and national law firms, and academic, business, 
and community leaders throughout the State. Their insights and hard 
work throughout the process were invaluable to my colleague from 
Connecticut and I. I express on this floor my gratitude to them for 
their service.
  Based on the work of the advisory panel and our review of its 
recommendations, Senator Blumenthal and I recommended Michael Shea to 
the President for nomination. I will say that Michael was ranked very 
high among the highly qualified applicants for this position by all 
members of the advisory panel. I should say right at the outset that we 
are grateful to President Obama for nominating him for this place on 
our court.
  Michael Shea is a native of West Hartford, CT, a graduate of Amherst 
College and Yale Law School, served as a clerk to Judge James Buckley, 
though a resident of Connecticut, and sat on the U.S. Court of Appeals 
for the District of Columbia. Michael Shea clerked for Judge Buckley in 
1993 and 1994. I will say that Judge Buckley sent our advisory 
committee and, I believe, the Judiciary Committee and Senator 
Blumenthal and me a very thoughtful, positive, personal letter of 
recommendation on Mr. Shea's behalf.
  After concluding his clerkship, Michael Shea joined the firm of 
Cleary, Gottlieb, Steen & Hamilton as an associate, where he stayed for 
4 years working on both criminal and civil cases and for a period of 
time was dispatched to the Brussels, Belgium, office of the firm 
working on an antitrust investigation. But much more significant than 
his legal work, in Brussels he met his wife Frederique, and together 
they now have three wonderful children.
  Since 1998, Michael Shea has been a partner at Day Pittney, LLP, 
where his practice has included trials and appeals in commercial, civil 
rights, personal injury, criminal, and other cases. He is currently the 
chair of the firm's Appellate Practice Group. But we found in talking 
to lawyers and judges around Connecticut on the State and Federal bench 
that Michael Shea is quite simply one of the most experienced and 
broadly respected litigators in our State.
  If confirmed, he will bring to the district bench an enormous 
background of experience in our courts. I want to add that Michael Shea 
also serves his community in various charitable organizations, 
including the Nutmeg Big Brothers and Sisters, and the Supreme Court 
Historical Society.
  In 2008, as a result of pro bono work Michael has consistently done 
representing indigent criminal defendants, he received the Connecticut 
Bar Association's Pro Bono Award for successfully protecting a young 
mother from

[[Page 16322]]

having to return her children to an abusive father who lived abroad.
  First, I thank Michael Shea for his interest in serving on the 
Federal bench of Connecticut. I am honored to present him, along with 
Senator Blumenthal, to our colleagues in the Senate. He is a first 
class nominee.
  Again, I thank the President for nominating him. I am confident that 
the President's trust in Mr. Shea will be more than vindicated by the 
years of judicial service that he will give our State and country.
  I am now glad to yield the floor to my colleague from Connecticut, 
Senator Blumenthal, who I am sure, with my successor, Chris Murphy, 
will continue to fill vacancies as they arise. There is one now with 
the same high level of nominee as we have been privileged to do 
together in this case.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, let me first thank my colleague, 
Senator Lieberman, for the extraordinary work he and my predecessor, 
Senator Dodd, have done in filling our U.S. District Courts with some 
of the most eminent jurists in the United States.
  As he has remarked so eloquently, part of the living legacy of the 
Senate and of individual Senators is, in fact, the men and women whom 
we recommend to serve in this critically important decision.
  As someone who has been a trial lawyer, who has practiced for a few 
decades in the Federal district courts of our country, I know 
personally that these men and women for most Americans are the voice 
and face of justice in our Federal courts. The U.S. Supreme Court may 
be the highest Court in the land, but most litigants go no higher than 
the U.S. District Court, and for them fairness and justice is the voice 
and face of the U.S. district judge.
  So I thank the Senator for the great work he has done. In decisions 
based on merit, without regard to personality or politics, he has 
participated in recommending some of the best of the best men and women 
to serve on our Federal bench.
  Michael Shea epitomizes that quality of fairness, intellect, and 
dedication to public service. He is a native of Connecticut, but his 
experience is national and international in scope. I am not going to 
repeat all of the extraordinary credentials that Senator Lieberman has 
described so well. I just want to say that on a level that is as 
important as any professional credentials in terms of temperament, he 
is the kind of person we want on our bench. He is unpresuming, 
unassuming, self-effacing, understated, but powerfully attentive to 
individual facts and personal circumstances.
  He has compassion and conviction, principle and impeccable honesty 
and integrity, and he has an empathy for people who are in distress, 
who are in need of somebody to listen. That may be a quality that is 
preeminently important on the bench, the ability to listen and the 
attention to detail.
  Mr. Shea has served as counsel for criminal defendants. He has argued 
20 appeals, including 6 to the Second Circuit. He has tried 9 cases to 
verdict. He has served as counsel to the Bridgeport Roman Catholic 
Diocese in first amendment matters. I worked with him personally in a 
professional capacity when I was attorney general of the State of 
Connecticut. I know him as someone who will do justice and love mercy.
  He is a man whom we can be proud to support. I am proud to support 
him. I thank President Obama for nominating him and the chairman of the 
Judiciary Committee, Patrick Leahy, for his leadership on our committee 
in making sure he had a hearing and a vote, and now this vote is here.
  I thank also our ranking member, Senator Grassley, for his 
graciousness in stating that he would support him. My hope is that the 
U.S. District Court of Connecticut, which faces a backlog now, will 
have the good fortune to have remaining vacancies filled at the 
earliest possible date by lawyers as eminently qualified as soon-to-be 
judge Michael Shea. I thank this body in advance for approving him.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BINGAMAN. 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. BINGAMAN. I yield back all remaining time and ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Michael P. Shea, of Connecticut, to be U.S. District Judge for the 
District of Connecticut?
  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) and the Senator from Virginia (Mr. Webb) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Illinois (Mr. Kirk), the Senator from South Carolina (Mr. DeMint), 
and the Senator from Tennessee (Mr. Alexander).
  Further, if present and voting, the Senator from South Carolina (Mr. 
DeMint) would have voted ``nay,'' and the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay.''
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 72, nays 23, as follows:

                      [Rollcall Vote No. 222 Ex.]

                                YEAS--72

     Akaka
     Ayotte
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Coats
     Collins
     Conrad
     Coons
     Corker
     Durbin
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hoeven
     Inouye
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Whitehouse
     Wyden

                                NAYS--23

     Barrasso
     Blunt
     Boozman
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     Enzi
     Heller
     Hutchison
     Inhofe
     Isakson
     Lee
     McConnell
     Paul
     Risch
     Roberts
     Rubio
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--5

     Alexander
     DeMint
     Kirk
     Rockefeller
     Webb
  The nomination was confirmed.
  Mr. COBURN. Mr. President, I wish to explain my vote against Mr. 
Michael Shea, nominee to the District Court of Connecticut. My decision 
is based on Mr. Shea's assistance in drafting an anticus brief in the 
Supreme Court case of Kelo v. New London on behalf of the Connecticut 
Conference of Municipalities and other municipalities.
  The Kelo decision delivered a serious blow to private property rights 
by upholding a municipality's use of eminent domain to seize private 
homes and transfer the property to a pharmaceutical company for 
purposes of ``economic development.'' As Justice Sandra Day O'Connor 
stated in her dissent, the ``Court abandoned its long-held, basis 
limitation on government power'' in the Kelo case. The Fifth Amendment 
of the Constitution states: ``No person shall be . . . deprived of 
life, liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just compensation.'' 
The Kelo decision altered what was traditionally viewed as ``public 
use.'' As Justice O'Connor noted, as a result of this decision, 
``Nothing is to prevent the State from replacing any Motel 6 with a 
Ritz-Carlton, any home with a shopping mall, or any farm with a 
factory. . . . Any property may now be taken for the benefit of another 
private party, but the fallout from this

[[Page 16323]]

decision will not be random. The beneficiaries are likely to be those 
citizens with disproportionate influence and power in the political 
process, including large corporations and development firms.''
  In contrast, Mr. Shea's amicus brief argued the eminent domain action 
taken by New London was constitutional and should be upheld. He 
asserted the ``taking of some of the petitioners'' homes'' is 
``undeniably a genuine cost of realizing the City's goal of improving 
the economic well-being of its citizens.'' But, the Public Use Clause 
``sweeps as broadly as the [State's] police powers.'' He said siding 
with the Kelo plaintiffs in the case would ``contort'' the Public Use 
Clause. Justice Stevens, the author of the 5-4 majority opinion in 
Kelo, cited Mr. Shea's brief in his opinion.
  Perhaps the saddest aspect of this case is the ``economic 
development'' that was key to the taking being a ``public use'' never 
happened because the developer could not get funding. Susette Kelo lost 
her property for nothing. The site of her former home is a garbage 
dump. This fact exposes another reason the takings clause was only 
intended for public use, because the government is more likely to have 
the funding ready to use the property. Normally, I would not hold a 
lawyer responsible for the legal views of his clients, but the Kelo 
decision dealt such a serious blow to private property rights, a 
crucial element of our founding principles, and so clearly departs from 
the original understanding of the Constitution, I feel I must vote no.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
shall be immediately notified of the Senate's action.

                          ____________________