[Congressional Record (Bound Edition), Volume 158 (2012), Part 3]
[Senate]
[Pages 3498-3501]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF GINA MARIE GROH TO BE UNITED STATES DISTRICT JUDGE FOR 
                 THE NORTHERN DISTRICT OF WEST VIRGINIA

                                 ______
                                 

 NOMINATION OF MICHAEL WALTER FITZGERALD TO BE UNITED STATES DISTRICT 
              JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations, 
which the clerk will report.
  The assistant bill clerk read the nominations of Gina Marie Groh, of 
West Virginia, to be United States District Judge for the Northern 
District of West Virginia; and Michael Walter Fitzgerald, of 
California, to be United States District Judge for the Central District 
of California.
  The PRESIDING OFFICER. Under the previous order, there will be 15 
minutes for debate equally divided in the usual form.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, what is the order? I had understood I was 
to be recognized at 1:45. Am I incorrect?
  The PRESIDING OFFICER. There will be 15 minutes for debate equally 
divided in the usual form.
  Mr. LEAHY. I am pleased that the Majority Leader and the Republican 
leader came to an understanding yesterday and a path forward so that we 
can finally consider the two judicial nominations the Senate will vote 
on today. With a judicial vacancies crisis that has lasted years, and 
nearly one in 10 judgeships across the Nation vacant, the Senate needs 
to continue to work to have a positive impact and reduce judicial 
vacancies significantly before the end of the year.
  In light of the agreement reached between the leaders, the Senate 
will finally be allowed to consider the nomination of Judge Gina Groh 
of West Virginia. Judge Gina Groh currently serves as a Circuit Judge 
in the 23rd Judicial Circuit for the State of West Virginia, the first 
female circuit judge in the eastern panhandle region of West Virginia. 
She is one of only three women serving as a circuit judge throughout 
the state. Judge Groh was nominated to the state court in 2006 on the 
recommendation of a bipartisan merit selection panel, and won a 
successful retention election in 2008. Prior to joining the bench, 
Judge Groh served for eight years as state prosecutor and nine years in 
private practice. Her nomination, which has the support of both of West 
Virginia's Senators, Senator Rockefeller and Senator Manchin, and was 
reported with the support of every Democrat and every Republican on the 
Judiciary Committee last October. She has been waiting for this 
confirmation vote for more than five months while her nomination has 
been stalled along with so many others.
  The Senate will also finally be able to consider the nomination of 
Michael Fitzgerald to fill a judicial emergency vacancy in the Central 
District of California. His nomination has the strong support of his 
home state Senators, Senators Feinstein and Boxer. If confirmed, Mr. 
Fitzgerald will be the first openly gay man confirmed to the Federal 
bench in the state of California. Mr. Fitzgerald has worked in private 
practice for more than two decades, and before that, served as a 
Federal prosecutor. The ABA's Standing Committee on the Federal 
Judiciary unanimously rated him ``well qualified'' to serve on the U.S. 
District Court, its highest possible rating. His nomination was 
reported unanimously by the Judiciary Committee last November. He has 
been waiting four and one half months for this vote.
  Unlike the 57 of President Bush's District Court nominations 
confirmed within a week of being reported by the Judiciary Committee 
during President Bush's first term, these qualified, consensus nominees 
have been needlessly stalled from final consideration. The application 
of the ``new standard'' the junior Senator from Utah conceded 
Republicans are applying to President Obama's nominees continues to 
hurt the people of West Virginia and California, who should not have to 
wait any longer for judges to fill these important Federal trial court 
vacancies.
  The nominations of Judge Groh and Mr. Fitzgerald are two of the 22 
circuit and district court nominations ready for Senate consideration 
and a final confirmation vote. They were all reported favorably by the 
Judiciary Committee after thorough review. All but a handful are by any 
measure consensus nominations. There was never any good reason for the 
Senate not to proceed to votes on these nominations. It should not have 
taken cloture petitions to get agreement to schedule votes on these 
qualified, consensus judicial nominations. In addition to the two 
nominations we consider today, another 10 of the nominations on which 
agreement has now been reached have been stalled for months and were 
reported last year.
  Among the nominees included in the leaders' agreement are two 
outstanding women nominated to fill vacancies on important circuit 
courts that have been delayed since last year--Stephanie Dawn Thacker 
of West Virginia, nominated to the Fourth Circuit, and Judge Jacqueline 
Nguyen of California, nominated to fill one of the many judicial 
emergency vacancies on the Ninth Circuit. Ms. Thacker, an experienced 
litigator and prosecutor, has the strong support of her home state 
Senators, Senators Rockefeller and Manchin. Judge Nguyen, whose family 
fled to the United States in 1975 after the fall of South Vietnam, was 
confirmed unanimously to the district court in 2009 and would become 
the first Asian Pacific American woman to serve on a U.S. Court of 
Appeals. Both were reported unanimously by the Judiciary Committee last 
year and both should be confirmed by the Senate without additional 
damaging delays.
  All 22 of the nominees awaiting a vote by the Senate are qualified 
judicial nominees. They are nominees whose judicial philosophy is well 
within the mainstream. These are all nominees supported by their home 
state Senators, both Republican and Democratic. The consequence of 
these months of delays is borne by the nearly 160 million Americans who 
live in districts and circuits with vacancies that could be filled as 
soon as Senate Republicans agree to up or down votes on the 22 judicial 
nominations currently before the Senate awaiting a confirmation vote.
  We must continue with the pattern set by yesterday's agreement to 
make progress beyond the 14 nominations in that agreement and beyond 
the 22 nominations currently on the calendar. There are another eight 
judicial nominees working who have had hearings and are working their 
way through the Committee process. In addition, there are another 11 
nominations on which the Committee should be holding additional 
hearings during the next several weeks. By working steadily and by 
continuing the resumption of the regular consideration of judicial 
nominations I hope the understanding between the leaders signals, we 
can do as we did in 2004 and 2008 to ensure that the Federal courts 
have the judges they need to

[[Page 3499]]

provide justice for all Americans without needless delay. In those 
presidential election years, we worked together to reduce judicial 
vacancies to the lowest levels in decades.
  Our courts need qualified Federal judges, not vacancies, if they are 
to reduce the excessive wait times that burden litigants seeking their 
day in court. It is unacceptable for hardworking Americans who turn to 
their courts for justice to suffer unnecessary delays. When an injured 
plaintiff sues to help cover the cost of his or her medical expenses, 
that plaintiff should not have to wait three years before a judge hears 
the case. When two small business owners disagree over a contract, they 
should not have to wait years for a court to resolve their dispute.
  We 100 Senators stand in the shoes of over 300 million Americans. It 
is good to see the Senate agreeing to end the partisan stalling and 
schedule votes on these long-delayed and much-needed judges.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, this week the judicial confirmation 
process was a bit off track. The 17 threatened cloture motion votes 
were unnecessary. I am pleased the majority leader determined to not 
move forward with that plan.
  The Senate has now returned to its regular order of processing 
judicial nominations in a careful and deliberate manner--just exactly 
what we ought to do when we are talking about confirming people to 
lifetime appointments. This means nominees are called up, debated, and 
voted upon, just as we have been doing. In fact, we have done that 131 
times for President Obama's judicial nominees. Of course, on rare 
occasions, as within the traditional rules and practices of the Senate, 
there will be difficulty in moving forward with consent to proceed on 
just a very few.
  So I view what happened yesterday not as some deal but as a rejection 
of a political stunt in favor of returning to regular order, as we are 
doing today. I have worked with the chairman and members of the 
Judiciary Committee, as well as my colleagues throughout the Senate, to 
ensure nominees are treated fairly, and I will continue to do so.
  In the meantime, I am pleased the Senate has turned to the JOBS bill. 
It is imperative that the Senate keep its focus on what the people back 
at the grassroots level think we ought to be working on--jobs, the 
economy, energy, and other critical issues facing our Nation.
  Today we turn to two judicial nominations under regular order and the 
procedure of the Senate: Gina Groh, who is nominated to be a U.S. 
district judge for the Northern District of West Virginia, and Michael 
Fitzgerald, who is nominated to be a U.S. district judge for the 
Central District of California.
  Earlier this week, I heard remarks blaming the judicial vacancy rate 
on Republican obstructions. What was failed to be discussed--not even 
mentioned--was that 44 of the judicial vacancies have no nominee. Of 
the 35 judicial vacancies designated as judicial emergencies, the 
President has failed to submit a nomination for 19 of those seats. So 
what about the other 16? What about the other 39 of the 83 I just 
mentioned? It is a fact of life; we can't proceed to process judicial 
nominations if the President doesn't send them to us. So the President 
needs to hurry if he wants to get some consideration.
  That has been the pattern for most of this administration--failure or 
delay in submitting nominations to the Senate. For example, look at the 
nomination of Gina Groh, a nomination we are considering today. Yes, 
her nomination has been before the Senate for 5 months, but this seat 
became vacant in December 2006. President Bush submitted a nomination 
for this seat on May 24, 2007. That nominee never even had a hearing 
but languished in committee for 19 months before being returned to the 
President. This is just 1 of 53 nominees of President Bush's who were 
subjected to what some have characterized as a ``pocket filibuster'' or 
otherwise went unconfirmed.
  Even after President Obama's election, it took until May 19, 2011, 
for him to nominate Ms. Groh. The President took 848 days to submit the 
nomination--nearly 2 years and 4 months. I have to ask, Where was the 
nomination? Where was the outrage of the other party during all of this 
time of dillydallying around at the White House?
  Again, we are moving forward under regular order and procedures of 
the Senate. This year, we have been in session for about 28 days, 
including today. During that time, we have confirmed nine judges. That 
is an average of about one confirmation for every 3 days. With the 
confirmation today, the Senate will have confirmed 72 percent of 
President Obama's judicial nominations.
  Gina Marie Groh is nominated to be United States District Judge for 
the Northern District of West Virginia. Judge Groh graduated summa cum 
laude with a B.A. from Shepherd University in 1986, and with a J.D. 
from West Virginia University College of Law in 1989. From 1989 to 
1998, she worked as a litigation associate for three separate firms. 
From 1989 to 1991, she was with Steptoe & Johnson and then she moved to 
Mell, Brownwell & Baker, where she worked until 1995. Finally she 
worked at Semmes, Bowen, & Semmes until 1998. During this period, her 
practice primarily involved civil litigation, including workers 
compensation and personal injury defense.
  From 1998 to 2006, she served as an Assistant Prosecuting Attorney. 
She served in this capacity with the Berkeley County Prosecuting 
Attorney's Office until 2002 and then with the Jefferson County 
Prosecuting Attorney's Office. As an assistant prosecutor, she 
primarily prosecuted felony cases on behalf of the State of West 
Virginia. While with the Jefferson County Attorney's Office, she also 
represented the county government in civil matters. While an assistant 
county prosecutor, she estimates she tried about 500 cases to verdict.
  In December 2006, Governor Manchin appointed Judge Groh as a circuit 
judge in the 23rd Judicial Circuit of West Virginia. In November 2008 
she was elected to the same position. As a judge serving on a court of 
general jurisdiction, she presides over a variety of civil and criminal 
cases and manages the grand jury in Morgan and Jefferson counties, 
which meets three times per year in each county. She estimates that she 
has presided over 93 cases that have either gone to verdict or 
judgment. In addition, she has issued orders in over 3,400 cases.
  Michael Fitzgerald is nominated to be United States District Judge 
for the Central District of California. He is a 1981 graduate of 
Harvard University and received his J.D. in 1985 from the University of 
California, Berkley--Boalt Hall--School of Law. After graduating from 
law school, Mr. Fitzgerald clerked for the Honorable Irving R. Kaufman 
on the United States Court of Appeals for the Second Circuit.
  From 1986-1987, he was an associate at O'Donnell & Gordon where he 
represented individuals and small companies in civil litigation. In 
1988, he became an Assistant United States Attorney where he served on 
the Organized Crime and Drug Enforcement Task Force/Major. With the 
task force he primarily prosecuted cocaine rings. He also worked with a 
money laundering task force comprised of IRS criminal agents and Los 
Angeles Police Department narcotics officers. From 1991-1995 he worked 
as an associate at Heller, Ehrman, White & McAuliffe LLP, on commercial 
litigation.
  In 1995, Mr. Fitzgerald joined the Law Offices of Robert L. Corbin, 
P.C. as an associate attorney, and became a partner in 1998, when the 
firm was renamed Corbin, Fitzgerald & Athey LLP. Initially he 
represented small businesses and individuals in small to medium-sized 
civil cases, as well as a variety of criminal cases in Los Angeles 
Superior Court. He also was involved in federal civil and criminal 
cases. For the past six years, the focus of his firm has been 
representing clients who are under investigation by federal agencies. 
These

[[Page 3500]]

investigations have concerned securities, defense contracting, 
environmental law, health care, antitrust, tax and financial crisis.
  Mr. Fitzgerald reports that he has appeared in court regularly for 
most of his career. However, since 2004, he has only appeared in court 
occasionally. He has tried 26 cases to verdict.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, when I hear concerns that the Republican 
delays are all the fault of President Obama, it sort of makes me think 
of some of the dialogue from the movie ``Casablanca''. I should tell my 
colleagues that there are 83 vacancies, sure. Several of them are 
without a nomination because this President is trying to work with home 
State Senators, including 24 vacancies involving a Republican home 
State Senator who hasn't agreed to anybody. There are seven nominations 
on which the Senate Judiciary Committee cannot proceed because 
Republican Senators haven't returned blue slips indicating their 
support. We had somebody else who we were going to consider in 
Committee. Two Republican Senators had returned blue slips; they 
withdrew them and we had to take that name off the agenda.
  So we try to protect Republicans' rights in the committee and, 
suddenly, we are at fault because they are blocking people who have 
gone through unanimously. Well, none of these complaints would give any 
excuse for failure to move on nominees that went through with every 
single Republican, every single Democrat voting for them.
  Instead of being voted on in a week, as 57 did during President 
Bush's first term, these nominees sit here for month after month after 
month.
  Mrs. FEINSTEIN. Mr. President, I rise to speak today on the 
nomination of Michael Walter Fitzgerald, a highly qualified nominee to 
the United States District Court for the Central District of 
California.
  The vacancy Mr. Fitzgerald would fill has been declared a judicial 
emergency by the Judicial Conference of the United States. The Central 
District is the ninth-busiest court in the country in terms of filings 
per judgeship, and it has several vacancies that need to be filled.
  I wish it had not taken four and a half months to see Mr. Fitzgerald 
confirmed, but I am very grateful that the Senate is able to make 
progress on his nomination today.
  I urge my colleagues to support this nomination.
  Mr. Fitzgerald was born in Los Angeles in 1959 and attended 
California's public schools. He received a scholarship to attend 
Harvard College, from which he graduated magna cum laude in 1981.
  After graduating from Harvard, Mr. Fitzgerald taught at Anaheim High 
School. He then attended Boalt Hall Law School at the University of 
California, Berkeley, where he was managing editor of the Industrial 
Relations Law Journal and graduated Order of the Coif in 1985.
  Following law school, he clerked for Judge Irving R. Kaufman on the 
U.S. Court of Appeals for the Second Circuit.
  Mr. Fitzgerald has over 25 years of experience practicing law. After 
one year in private practice he became an Assistant United States 
Attorney in the Central District of California, where he served from 
1988 through 1991.
  During that time, he served on the Organized Crime and Drug 
Enforcement Task Force and with the Major Narcotics Section. He led an 
investigation that resulted in the seizure of 2,241 pounds of cocaine 
and the conviction of a major drug trafficking kingpin.
  Since his service as a federal prosecutor, Mr. Fitzgerald has worked 
as an attorney in private practice, first at the law firm Heller Ehrman 
White & McAuliffe and now at Corbin, Fitzgerald, and Athey LLP.
  He has represented plaintiffs and defendants in civil cases, as well 
as criminal defendants. He also has represented major corporations and 
corporate officials in investigations by the Securities and Exchange 
Commission and the Department of Justice. For example, he represented a 
senior Boeing manager in a Federal grand jury investigation, as well as 
Bank of America.
  He also has been active in pro bono work. For example, Mr. Fitzgerald 
represented an FBI special agent, Frank Buttino, who had security 
clearance revoked after his sexual orientation was revealed to his FBI 
superiors. The case resulted in a settlement, in which the FBI revoked 
its policy of treating sexual orientation as a negative factor in 
security clearance determinations.
  Mr. Fitzgerald also served as a deputy counsel on the Rampart 
Independent Review Panel, which was appointed by the Los Angeles Police 
Commission to investigate a major corruption scandal in the Rampart 
Division of the Los Angeles Police Department. He also served as a 
counsel to the Special Advisor to the Webster Commission, which 
investigated the L.A.P.D.'s response to the L.A. riots in 1992.
  In short, Mr. Fitzgerald has an impressive record--strong academic 
credentials, an appellate clerkship, service as a Federal prosecutor, 
and over two decades in private practice.
  Mr. Fitzgerald is also the first openly gay nominee to a California 
Federal Court--an important milestone on the road to equality.
  I am confident he will be a superb addition to the district court, 
and I urge my colleagues to support his nomination.
  Mr. LEAHY. Mr. President, I believe we have reached the time for the 
vote. Am I correct?
  The PRESIDING OFFICER (Mr. Sanders). The Senator is correct.
  The question is, Will the Senate advise and consent to the nomination 
of Gina Marie Groh, of West Virginia, to be United States District 
Judge for the Northern District of West Virginia?
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Utah (Mr. Hatch), and 
the Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 2, as follows:

                       [Rollcall Vote No. 49 Ex.]

                                YEAS--95

     Akaka
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--2

     DeMint
     Lee
       

                             NOT VOTING--3

     Alexander
     Hatch
     Kirk
  The nomination was confirmed.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, first of all, we had a good week. We have 
worked together on issues and gotten a lot done. We have one more vote. 
That will be the last vote this week. The next vote will be Tuesday 
before the caucus.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Will the Senate advise and consent to the nomination of Michael Walter 
Fitzgerald, of California, to be U.S. District

[[Page 3501]]

Judge for the Central District of California.
  Mr. REID. Mr. President, 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 bill clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Utah (Mr. Hatch), and 
the Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea.''
  The result was announced--yeas 91, nays 6, as follows:

                       [Rollcall Vote No. 50 Ex.]

                                YEAS--91

     Akaka
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--6

     Blunt
     DeMint
     Inhofe
     Lee
     Paul
     Vitter

                             NOT VOTING--3

     Alexander
     Hatch
     Kirk
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table.
  The President will be immediately notified of the Senate's action.

                          ____________________