[Congressional Record (Bound Edition), Volume 158 (2012), Part 5]
[Senate]
[Pages 6003-6009]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JACQUELINE H. NGUYEN TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE NINTH CIRCUIT

                                 ______
                                 

NOMINATION OF KRISTINE GERHARD BAKER TO BE UNITED STATES DISTRICT JUDGE 
                  FOR THE EASTERN DISTRICT OF ARKANSAS

                                 ______
                                 

 NOMINATION OF JOHN Z. LEE TO BE UNITED STATES DISTRICT JUDGE FOR THE 
                     NORTHERN DISTRICT OF ILLINOIS

  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 legislative clerk read the nominations of Jacqueline H. Nguyen, 
of California, to be United States Circuit Judge for the Ninth Circuit; 
Kristine Gerhard Baker, of Arkansas, to be United States District Judge 
for the Eastern District of Arkansas; and John Z. Lee, of Illinois, to 
be United States District Judge for the Northern District of Illinois.
  The PRESIDING OFFICER. Under the previous order, there will be 60 
minutes of debate equally divided in the usual form.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, for the last 4 months, the Senate has been 
forced to slowly work its way through the backlog created by Republican 
objections at the end of last year to consensus nominees. Finally, with 
consideration today of the long-delayed nomination of Judge Nguyen to 
fill a longstanding judicial emergency vacancy on the overburdened 
Ninth Circuit, the Senate will have completed the confirmations that 
could and should have taken place last year.
  Today, 5 months into the year, is the first time the Senate is 
considering judicial nominations reported by the Judiciary Committee 
this year. Confirmations of the nominations of Kristine Baker to fill a 
judicial emergency vacancy in the Eastern District of Arkansas and John 
Lee to fill a judicial emergency vacancy in the Northern District of 
Illinois have been delayed for nearly 3 months. These nominees have the 
support of their home state Senators and of a bipartisan majority of 
the Judiciary Committee. Yet these consensus nominees have been delayed 
for months for no good reason.
  The nominations we consider today are but three of the 22 judicial 
nominees available for final Senate action. Most are by any measure 
consensus nominees who could and should be confirmed without further 
delay. That would go a long way toward getting us on track to make real 
progress in reducing judicial vacancies that have plagued the Federal 
courts around the country.
  I want to share with the Senate and the American people a chart 
comparing vacancies during the first terms of President Bush and 
President Obama. This chart shows that the lack of real progress during 
the last 3\1/3\ years is in stark contrast to the way in which we moved 
to reduce judicial vacancies during the last Republican presidency.
  During President Bush's first term we reduced the number of judicial 
vacancies by almost 75 percent. When I became Chairman in the summer of 
2001, there were 110 vacancies. As Chairman, I worked with the 
administration and Senators from both sides of the aisle to confirm 100 
judicial nominees of a conservative Republican President in 17 months. 
See how sharply the line slopes as we reduced vacancies in 2001 and 
2002.
  We continued when in the minority to work with Senate Republicans and 
confirm President Bush's consensus judicial nominations well into 2004, 
a presidential election year. At the end of that presidential term, the 
Senate had acted to confirm 205 circuit and district court nominees. 
The chart notes where we stood in May 2004, having reduced judicial 
vacancies under 50 on the way to 28 that August. By comparison, see how 
long vacancies have remained near or above 80 and how little 
comparative progress we have made during the 4 years of President 
Obama's first term. Again, if we could move forward to Senate votes on 
the 22 judicial nominees ready for final action, the Senate could 
reduce vacancies to less than 60 and make progress.

[[Page 6004]]

  Today also marks the first Senate action this year to address the 
needs of the Ninth Circuit, by far the busiest Federal appeals court in 
the country. The Senate should have voted on the long-delayed 
nomination of Judge Jacqueline Nguyen of California to the Ninth 
Circuit over 5 months ago, after it was reported unanimously by the 
Judiciary Committee. Her nomination is one of three Ninth Circuit 
nominations currently pending and awaiting a Senate vote to fill 
judicial emergency vacancies plaguing that circuit. With nearly three 
times the number of cases pending as the next busiest circuit, we 
cannot afford to further delay Senate votes on the other two 
nominations to the Ninth Circuit, Paul Watford of California, reported 
favorably by the Committee over 3 months ago, or Andrew Hurwitz of 
Arizona, reported favorably over 2 months ago.
  There is no good reason for Senate Republicans to further delay votes 
on these Ninth Circuit nominees. The 61 million people served by the 
Ninth Circuit are not served by this delay. The circuit is being forced 
to handle double the caseload of any other without its full complement 
of judges. The Senate should be expediting consideration not only of 
Judge Jacqueline Nguyen, but also of Paul Watford and Justice Andrew 
Hurwitz, not delaying them.
  The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan 
appointee, along with the members of the Judicial Council of the Ninth 
Circuit, wrote to the Senate months ago emphasizing the Ninth Circuit's 
``desperate need for judges,'' urging the Senate to ``act on judicial 
nominees without delay,'' and concluding ``we fear that the public will 
suffer unless our vacancies are filled very promptly.'' The judicial 
emergency vacancies on the Ninth Circuit are harming litigants by 
creating unnecessary and costly delays. The Administrative Office of 
U.S. Courts reports that it takes nearly 5 months longer for the Ninth 
Circuit to issue an opinion after an appeal is filed, compared to all 
other circuits. The Ninth Circuit's backlog of pending cases far 
exceeds other Federal courts. As of the end of 2011, the Ninth Circuit 
had 13,913 cases pending before it, far more than any other circuit.
  If caseloads were really a concern of Republican Senators, as they 
contended last year when they filibustered the nomination of Caitlin 
Halligan to the D.C. Circuit, they would not be delaying the 
nominations to fill judicial emergency vacancies in the Ninth Circuit. 
If caseloads were really a concern, Senate Republicans would consent to 
move forward with votes on Paul Watford and Justice Hurwitz and allow 
for up or down votes by the Senate without these months of unnecessary 
delays.
  Given that all three are superbly qualified mainstream nominees with 
bipartisan support, the long delays that have plagued these nominations 
are hard to understand. 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 the Senate Judiciary 
Committee unanimously supported her nomination to the Ninth Circuit 
last year. When confirmed, she will be the first Asian Pacific American 
woman to serve on a U.S. Court of Appeals in our history. She is the 
kind of nominee who should have been confirmed in 5 days, not 5 months.
  We still await Republican agreement to vote on the other two 
nominees, neither of whom would have been considered controversial by 
past Congresses. Paul Watford was rated unanimously well qualified by 
the ABA's Standing Committee on the Federal Judiciary, the highest 
rating possible. He clerked at the United States Supreme Court for 
Justice Ruth Bader Ginsburg and on the Ninth Circuit for now-Chief 
Judge Alex Kozinski. He was a Federal prosecutor in Los Angeles. He has 
the support of his home State Senators and bipartisan support from 
noted conservatives such as Daniel Collins, who served as Associate 
Deputy Attorney General in the Bush administration; Professors Eugene 
Volokh and Orin Kerr; and Jeremy Rosen, the former president of the Los 
Angeles chapter of the Federalist Society.
  Justice Hurwitz is a respected and experienced jurist on the Arizona 
Supreme Court. He also received the ABA's Standing Committee on the 
Federal Judiciary's highest rating possible, unanimously well 
qualified. This nomination has the strong support of both his 
Republican home State Senators, Senator John McCain and Senator Jon 
Kyl.
  We have much more work to do to help resolve the judicial vacancy 
crisis that has persisted for more than 3 years. Today the Senate 
finally votes on 3 of the 22 judicial nominations that have been 
reported by the Judiciary Committee after a thorough review. Despite 
vacancies in nearly 1 out of every 10 Federal judgeships, Senate 
Republicans continue to delay votes and are stalling action on nearly 
20 current judicial nominations on which the Senate could be taking 
final action. If confirmed those judges would serve 150 million 
Americans.
  When the majority leader and the Republican leader came to their 
interim understanding in March, it resulted in votes on 14 of the 22 
judicial nominations then awaiting final consideration. Because the 
arrangement took months to implement what the Senate could have done in 
hours, the backlog of judicial vacancies and judicial nominees 
continues. Today we are right back where we started with 22 judicial 
nominees awaiting action. I know that the majority leader is working to 
continue seeking Republican agreement to debate and vote on the 
remaining judicial nominees. It should not require overcoming 
filibusters and political standoffs for the Senate to do its job of 
promptly considering judicial nominations, especially when so many of 
them have bipartisan support and are consensus nominees.
  The backlog of nominations ready for final action is not necessary or 
typical. It is an artificial backlog created by the refusal of Senate 
Republicans to consider judicial nominees at the end of each of the 
last 2 years and their insistence of delays of months before 
confirmation of consensus nominees. These practices have meant that the 
Senate's confirmations have barely kept up with attrition on the 
Federal bench. When Republicans refused to consent to consider 19 
judicial nominations at the end of 2010, it took us until June of last 
year to work through those nominations. When they did so again at the 
end of last year, it took us until today, a week into May, to catch up 
with last year's nominations. That is not how to reduce judicial 
vacancies.
  The Senate needs to continue working and continue consideration of 
judicial nominees recommended by the Judiciary Committee if we are to 
make real progress in reducing the burden of judicial vacancies. That 
is what we did in the most recent presidential election years of 2004 
and 2008 and what we should be doing this year. Before we hear any more 
talk of slowing down or shutting off judicial confirmations, we have a 
long way to go. We need to work to reduce the vacancies that are 
burdening the Federal judiciary and the millions of Americans who rely 
on our Federal courts to seek justice.
  At this same point in the Bush administration, we had reduced 
judicial vacancies around the country to under 50. Today they stand at 
nearly 80. And by August 2004, we reduced judicial vacancies to just 28 
vacancies. Despite 2004 being a presidential election year, we were 
able to reduce vacancies to the lowest level in the last 20 years. At a 
time of great turmoil and political confrontation, despite the attack 
on 9/11, the anthrax letters shutting down Senate offices, and the 
ideologically driven judicial selections of President Bush, we worked 
together to promptly confirm consensus nominees and significantly 
reduce judicial vacancies.
  In 2008, another presidential election year, we again worked to 
reduce judicial vacancies and by October we were able to reduce 
judicial vacancies back down to 34 vacancies. I accommodated Senate 
Republicans and continued holding expedited hearings and votes on 
judicial nominations into September 2008.
  We lowered vacancy rates more than twice as quickly during President 
Bush's first term as Senate Republicans have allowed during President

[[Page 6005]]

Obama's first term. The vacancy rate remains nearly twice what it was 
at this point in the first term of President Bush. The Senate is 30 
behind the number of circuit and district court confirmations at this 
point in President Bush's fourth year in office. We are 63 
confirmations from the total of 205 that we reached by the end of 
President Bush's fourth year.
  Today's consensus nominees are examples of those who have been 
unnecessarily stalled for months.
  Kristine Baker, nominated to fill a judicial emergency vacancy on the 
Eastern District of Arkansas, has spent nearly 15 years in private 
practice after graduating with honors from the University of Arkansas 
School of Law and clerking for Judge Susan Weber Wright on the court to 
which she has been nominated. Ms. Baker's nomination has the bipartisan 
support of her home State Senators. Her nomination was favorably 
reported by the Judiciary Committee with the support of nearly every 
Senator on February 16.
  John Lee, nominated to fill one of three judicial emergency vacancies 
on the Northern District of Illinois, has worked in private practice 
for almost 20 years. His personal story is remarkable. Born to a coal 
miner and a nurse of Korean descent, Mr. Lee immigrated to the United 
States when he was 5 years old and went on to graduate from Harvard 
College and Harvard Law School. If confirmed, he will become the second 
Korean-American to serve as a Federal district court judge, and the 
second Asian-American to serve as a Federal judge in the courts 
encompassed by the Seventh Circuit. Mr. Lee's nomination has the 
bipartisan support of his home State Senators. They both also support 
the confirmation of John Tharp, a former nominee of President George W. 
Bush, to another judicial emergency vacancy in that district. With 
Republican consent we could also be voting on the Tharp nomination. 
Both Illinois nominations were favorably reported by the Judiciary 
Committee with only one Senator dissenting on February 16.
  Today's votes must be a starting point for considering this year's 
judicial nominations if we want to bring down judicial vacancies and 
hope to match the progress we were able to make in 2004 and 2008, both 
Presidential election years in which we considered the nominations of a 
Republican President and continued to reduce judicial vacancies. I hope 
that Senate Republicans will stop blocking prompt confirmation of 
consensus nominees. That is a destructive development and new practice 
that has contributed to keeping the Senate behind the curve, keeping 
Federal judicial vacancies unfilled, overburdening the Federal courts, 
and keeping Americans from securing prompt justice. The American people 
deserve better.
  I suggest the absence of a quorum and ask unanimous consent the time 
be divided equally.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOOZMAN. 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. BOOZMAN. Mr. President, I rise today in support of Kristine 
Baker's nomination as United States District Judge for the Eastern 
District of Arkansas. Kris Baker is a great lawyer recognized by her 
peers as well as legal organizations for her dedication to litigation 
on a wide range of issues, from deceptive trade practices to first 
amendment matters.
  I had the opportunity to introduce her during her confirmation 
hearing before the Senate Judiciary Committee. After reviewing her 
record and meeting with her personally, as well as meeting with those 
who know her, looking at her reputation, looking at her abilities, I am 
confident that Kris's experience makes her qualified to be the next 
eastern district judge of Arkansas.
  Kris moved to Arkansas in 1994 to pursue a JD from the University of 
Arkansas School of Law. During law school, she established herself as a 
hard worker committed to success. She graduated with high honors, was 
articles editor for the Arkansas Law Review, a member of the board of 
advocates, and a member of the University of Arkansas first amendment 
national moot court team.
  Kris began her legal career after graduation as a law clerk for Judge 
Susan Wright, then chief judge for the Eastern District of Arkansas. In 
2000 she joined her current law firm, Quattlebaum, Grooms, Tull, and 
Burrow, and became a partner 2 years later.
  Kris has earned the respect of the legal community across Arkansas, 
and I believe her litigation experience has given her the knowledge, 
the skills, and the temperament needed to successfully serve on the 
Federal bench.
  I am honored to recommend that the Senate confirm Kristine Baker to 
serve the people of America as a judge for the Eastern District of 
Arkansas.
  I note the absence of a quorum and yield the floor.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. Mr. President, is it appropriate in the Senate schedule 
to start debate on the judges?
  The PRESIDING OFFICER. The judges are pending.
  Mr. GRASSLEY. Mr. President, today the Senate is expected to confirm 
three additional judicial nominees. With the confirmation of Judge 
Nguyen to the ninth circuit, Ms. Baker to the Eastern District of 
Arkansas, and Mr. Lee to the Northern District of Illinois, we will 
have confirmed 83 judicial nominees during this Congress.
  It is somewhat ironic that today, according to press accounts, the 
White House is holding a forum and strategy session with administration 
officials and 150 supporters from across the country concerned about 
the judicial vacancy rate. I wonder if at this strategy session the 
White House took a look in the mirror when addressing the vacancy rate. 
Only the President can make nominations to the Senate. While we have a 
responsibility to advise and consent on those nominations, Senators 
cannot fill vacancies unless people are nominated for those positions. 
I would note the President has failed to do this in 47 of the 76 
remaining vacancies, including 21 of 35 seats designated as judicial 
emergencies. That is more than 60 percent of the current vacancies with 
no nominee.
  The White House and the Senate majority are fond of their claim that 
millions of Americans are living in districts with vacancies. Of 
course, what the other side fails to tell you is that 88 million 
Americans live in judicial districts where vacancies exist because the 
President has failed to nominate judges. Most of those seats have been 
vacant for more than a whole year. Once again, if the White House is 
serious about judicial vacancies, it holds the key to nominating and 
filling those vacancies. It has failed in too many instances to use 
that key.
  Furthermore, according to the press accounts, in its invitation, the 
White House accused Republicans of subjecting consensus nominees to 
``unprecedented delays and filibusters.'' This is a statement without 
factual basis, and it ignores the record of judicial nominations.
  I would note that after today's confirmation, there are 12 nominees 
on the Executive Calendar that might fall into the category of 
consensus nominees. Seven nominees on the calendar had significant 
opposition in the committee and clearly are not consensus nominees. The 
substantial majority of those 12 nominees were reported out of 
committee less than 10 legislative days ago. Not only is there no 
filibuster against any of the consensus nominees, but I am not sure how 
there can be accusation of delay and particularly partisan delay.
  Let me remind my colleagues on the other side of the aisle of the 
obstructionism, delay, and filibusters which they perfected. The 
history of President Bush's nominees to the Ninth Circuit provides some 
examples. President

[[Page 6006]]

Bush nominated nine individuals to the Ninth Circuit. Three of those 
nominations were filibustered. Two of those filibusters were 
successful. The nominations of Carolyn Kuhl and William Gerry Myers 
languished for years before being returned to the President. A fourth 
nominee, Randy Smith, waited over 14 months before finally being 
confirmed after his nomination was blocked and returned to the 
President. After being renominated, he was finally confirmed 
unanimously.
  President Obama, on the other hand, has nominated six individuals to 
the Ninth Circuit. Only one of those nominees was subject to a cloture 
vote. After the vote failed, the nominee withdrew. Today we confirm the 
third nomination of this President to the Ninth Circuit. Those three 
confirmations took an average of about 8 months from the date of 
nomination. For all of President Obama's circuit nominees, the average 
time from nomination to confirmation is about 242 days. For President 
Bush's circuit nominees, the average wait for confirmation was 350 
days. One might ask why President Bush was treated so differently, with 
so much more delay than this President has been treated or his nominees 
have been treated.
  Another example of past Democratic obstruction and delay is in 
Arkansas. Today we confirm President Obama's nominee to the Eastern 
District of Arkansas within about 6 months of her nomination. I would 
note that President Bush's nominee, Jay Leon Holmes, sat on the 
Executive Calendar for more than 14 months awaiting confirmation. From 
nomination, his confirmation took over 17 months. Again, why were 
President Bush's nominees treated worse than this President's nominees?
  I can only conclude that the White House has selective memory or 
different definitions when it accuses Republicans of unprecedented 
delay and obstructionism. I am disappointed that the President 
continues to blame Republicans for vacancies that have no nominee and 
chooses to follow the political strategy of blaming rather than working 
with the Senate to nominate consensus nominees. In other words, why 
isn't the President, instead of having a conference on why there are 
judicial vacancies, taking the same amount of time to get the names up 
here so we can work on them?
  Mr. President, Jacqueline Nguyen, presently serving as a U.S. 
district judge, is nominated to be a U.S. circuit judge for the Ninth 
Circuit. Judge Nguyen received her A.B. from Occidental College in 1987 
and her J.D. from the University of California, Los Angeles School of 
Law, in 1991. She began her legal career as an associate in the 
Litigation Department at the Los Angeles law firm of Musick, Peeler & 
Garrett where she handled litigation matters involving commercial 
disputes, intellectual property, and construction defects. From 1995 
until 2002, Judge Nguyen was an Assistant U.S. Attorney in the U.S. 
Attorney's Office for the Central District of California. There, she 
handled the investigation and prosecution of human trafficking, 
immigration fraud, mail and tax fraud, and money laundering cases. In 
2000, Judge Nguyen became deputy chief of the General Crimes Section. 
In that position, she handled the training and supervision of all new 
Assistant U.S. Attorneys and various types of criminal cases involving 
violent crimes, drug trafficking, firearms violations, and fraud.
  In 2002, Governor Gray Davis appointed Judge Nguyen to the Superior 
Court for the County of Los Angeles. In 2009, she was nominated by 
President Obama to be U.S. district judge for the Central District of 
California. The Senate approved her nomination on December 1, 2009 by a 
vote of 97-0. In her capacity as a judge, she has presided over 
thousands of cases.
  The ABA Standing Committee on the Federal judiciary unanimously rated 
her as ``qualified'' for this position.
  Kristine Gerhard Baker is nominated to be U.S. district judge for the 
Eastern District of Arkansas. Ms. Baker received her B.A. from St. 
Louis University in 1993 and her J.D. from University of Arkansas 
School of Law in 1996. She served as a law clerk for the Honorable 
Susan Webber Wright, then the chief judge of the United States District 
Court for the Eastern District of Arkansas. In 1998 she became an 
associate in the law firm Williams & Anderson, LLP, where she handled 
commercial litigation cases involving breach of contract and fraud. In 
2000, Ms. Baker joined the law firm Quattlebaum, Grooms, Tull & Burrow, 
PLLC. Her focus at the firm has been devoted to complex commercial 
litigation cases, including cases involving employment discrimination, 
securities violations, unfair competition, sic products liability, Fair 
Housing Act claims, and Freedom of Information Act claims. She has 
handled in administrative proceedings and in Federal and State court 
claims for discrimination, harassment, and wrongful termination as well 
as claims arising under the Family and Medical Leave Act, the Americans 
with Disabilities Act, and the Employee Retirement Income Security Act. 
The ABA Standing Committee on the Federal Judiciary gave her a 
substantial majority rating of ``well qualified'' and a minority 
``qualified.''
  John Z. Lee is nominated to be U.S. district judge for the Northern 
District of Illinois. Mr. Lee received his A.B. from Harvard College in 
1989 and his J.D. from Harvard Law School in 1992. He began his legal 
career as a trial attorney for the United States Department of Justice, 
Environment & Natural Resources Division. There he represented the 
United States in Federal courts on issues primarily involving 
environmental statutes. He also served as special assistant to the 
counsel to former Attorney General Janet Reno.
  In 1994, he left the public sector to take a job as an associate at 
Mayer Brown. In 1996, he joined a new firm, Grippo & Elden, as an 
associate. In 1999, he moved to his current firm, Freeborn & Peters. 
There he made income partner in 2001 and equity partner in 2004. In 
private practice, Mr. Lee has focused almost entirely on litigation, 
expanding his expertise to complex commercial disputes, including cases 
involving antitrust, intellectual property, employment, and business 
tort issues. Most of these cases were in Federal courts, particularly 
the Seventh and Ninth Circuits. He also represented clients in criminal 
investigations of antitrust and financial regulations violations. In 
private practice, he represents public and private companies, 
individual businesspersons and low-income clients pro bono. He has an 
ABA rating of substantial majority ``qualified,'' minority ``not 
qualified.''
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I rise today to speak in support of the 
nominations of John Lee and Jay Tharp to serve on the District Court 
for the Northern District of Illinois.
  I have listened carefully to the statement made by the ranking 
Republican on the Senate Judiciary Committee. I would note several 
things.
  First, at this point in President George W. Bush's first term, the 
Democratic Senate had approved 30 more judges than have been approved 
under the current situation with this divided Senate. Second, it would 
take 60 judicial nominations to be filled by the end of the year for 
President Obama to have received the same treatment as President George 
W. Bush in his first term--60. We could get a lot of that done today. 
Right here are 22 nominations for the judiciary that have cleared the 
committee. If the Senator from Iowa would like to come to the floor and 
join me, we could make a joint unanimous consent request to bring up 
all 22 immediately--every one of them--all of whom have cleared the 
committee. Those Senators who want to vote against those nominations 
may do so. They can vote no. But, unfortunately, as we can see from 
this calendar, the names of the nominees languished on this calendar 
for months--literally for months--and many times passed with a voice 
vote or a unanimous vote. It really does not speak well of this process 
that we have reached this point, this slowdown.
  What many Republicans are waiting for is the so-called Thurmond rule. 
It is

[[Page 6007]]

not a rule written in a book; it refers to Senator Strom Thurmond of 
South Carolina, who kind of announced at one point in his career: We 
are going to stop considering judges as of a certain point in an 
election year. I have been in the Senate a few years and have heard so 
many different explanations about what the Thurmond rule really means, 
although I am not sure anyone really knows. All we know is that in a 
political campaign year, politics rule, and in this situation many 
Republicans are holding up perfectly fine nominees approved by 
Democrats and Republicans in committee for no other reason but the hope 
that they can win back the White House in November and fill the 
nominees with their favorites. I don't think that is fair to the 
nominees who have gone through the process, many of whom have been 
cleared by a bipartisan vote and should be confirmed in a timely 
fashion.
  Let me speak to a particular issue that is addressed by the nominee 
before us. There are two nominees from Illinois to fill vacancies: John 
Lee and Jay Tharp. The chief judge of the Northern District, Judge Jim 
Holderman, sent a letter to me and Senator Kirk in February calling for 
Mr. Lee and Mr. Tharp to be confirmed without delay because of the 
heavy caseload in this court. Senator Kirk and I decided to work 
together on a bipartisan basis, and we did. We had a process on which 
we both agreed. He picked a bipartisan group to come up with his 
nominee and I did the same on my side. But the understanding was that 
at the end of the day, neither of our nominees would move forward 
without the approval of the other Senator. So, in fact, they were 
bipartisan choices, both of them. John Lee is my choice. Jay Tharp is 
Senator Kirk's choice. We both support one another's choice. We believe 
both of these nominees have the experience, qualifications, 
temperament, and integrity necessary to serve in the Federal judiciary.
  Mr. Lee and Mr. Tharp were both nominated on November 10, 2011--6 
months ago. They appeared together in a hearing before the Judiciary 
Committee in January. They were both reported out of committee in 
February on a bipartisan voice vote.
  There was an agreement reached between Senator McConnell and Senator 
Harry Reid, the majority leader, about the nominees we brought forward 
for a vote. I was surprised when it was announced in March that the Lee 
and Tharp nominations, which had been together all through the process, 
were separated. The deal or arrangement called for John Lee to be 
scheduled for a confirmation vote by May 7, but at the insistence of 
the Republican leader, Senator McConnell, the deal did not include all 
of the nominees on the Senate calendar and it did not schedule a vote 
for Mr. Jay Tharp, Senator Kirk's nominee. I believe they should be 
confirmed together, just as they were nominated together and went 
through the committee together.
  As soon as I heard about this so-called arrangement, I went first to 
Senator Kyl and then to Senator McConnell and said: Don't do this. 
Don't hold up Senator Kirk's nominee. He is in the hospital--now he is 
home, thank goodness--recovering from a stroke. We did this together. 
We are working together. Don't separate these two fine men. There is no 
reason to do it.
  But I understand that this was the arrangement and they didn't want 
to change it--even to help Senator Kirk under these circumstances. They 
wanted to do only two nominees a week over a 7-week period of time, and 
the cutoff--the line they drew--was, unfortunately, between Mr. Lee and 
Mr. Tharp.
  Well, I was going to propound a unanimous consent request today to 
include Mr. Tharp along with Mr. Lee on the vote we are about to take. 
There is only one reason I am not. We have received an ironclad 
assurance from the Senate Republican floor staff that Mr. Tharp is 
going to be called on a timely basis during this work period. I am 
going to hold them to it. I don't want to embarrass anyone, but it 
bothers me that the nominee of Senator Kirk is being held up by the 
Republican side of the aisle when it should be voted on today. There is 
no reason why it should not be voted on today. We should vote for both 
of them. But because a word has been given to me by a staff member whom 
I respect very much, I won't make this unanimous consent request. 
However, let me say this: If something happens--I don't know what it 
might be, and I hope it doesn't--I am prepared to come to the floor and 
propound that unanimous consent request not only on behalf of Senator 
Kirk but on behalf of my State and on behalf of my own interests in 
making sure that our Federal judiciary has a complement of qualified 
people.
  Let me say a few words about each nominee--extraordinarily good 
nominees.
  John Lee has been nominated to fill the judicial vacancy held by 
Judge David Coar. Mr. Lee is currently a partner at the law firm of 
Freeborn & Peters in Chicago, where he practices primarily in 
commercial litigation.
  He is the son of a coal miner and a nurse. He immigrated to this 
country, to Chicago, at a very young age. From humble beginnings, he 
attended Harvard College, where he graduated magna cum laude and then 
earned his law degree cum laude from Harvard Law School.
  After law school, Mr. Lee worked as a trial attorney in the 
Department of Justice Environment and Natural Resources Division. After 
his tenure at the Justice Department, he worked in private practice and 
eventually joined the firm at which he currently works. His law 
practice has focused on antitrust, intellectual property, 
environmental, and other complex commercial litigation matters. He has 
received numerous awards and recognitions, including being named a 
``Leading Lawyer'' from 2008 through 2011 by the Leading Lawyers 
Network.
  Mr. Lee has an outstanding record of community service, including his 
work as president of the board of directors of Asian Human Services of 
Chicago, his service on the board of directors of the CARPLS legal 
hotline for low-income Cook County residents, and his service on the 
board of the Asian American Bar Association of Greater Chicago.
  This is a historic nomination for John Lee. Upon confirmation, he 
will be the first Korean American ever to serve as a Federal article 
III judge in Illinois and only the second to serve in that capacity in 
our entire Nation's history.
  Let me say a word about Jay Tharp. Again, I am disappointed that I 
couldn't persuade the Republican leadership to include him today, but I 
have their assurance that he will be called during this work period.
  Jay Tharp has been nominated to fill the Chicago district court 
judgeship that opened as a result of the senior status of Judge Blanche 
Manning. Mr. Tharp is currently a partner in the Chicago office of 
Mayer Brown, where he is the coleader of the firm's securities 
litigation and enforcement practice.
  He was born into a military family as the son of a lieutenant colonel 
in the Marine Corps. He attended Duke University on an ROTC 
scholarship, received his undergraduate degree summa cum laude, and was 
commissioned as a second lieutenant in the Marine Corps. Jay Tharp 
served in Active Duty in the Marines for 6 years, achieving the rank of 
captain and earning the Navy Achievement Medal and the Navy 
Distinguished Midshipman Award.
  After his military service, Mr. Tharp attended Northwestern 
University Law School, graduating magna cum laude, and served on the 
Northwestern University Law Review.
  Upon graduation, he served as a judicial clerk for Judge Joel Flaum 
on the Seventh Circuit Court of Appeals and then worked as an assistant 
U.S. attorney for 6 years in Chicago.
  After his tenure as a Federal prosecutor, he joined Mayer Brown, 
where his practice specializes in complex commercial litigation and 
criminal investigations. He has received numerous recognitions.
  Mr. Tharp has served as an adjunct professor of trial advocacy at 
Northwestern University Law School, and he also serves as a member of 
the Law Fund Board at Northwestern, which

[[Page 6008]]

oversees fundraising efforts by law school alumni.
  These are two extraordinarily good nominees who went through the 
bipartisan process together, were approved by Senator Kirk and approved 
by me, went through their investigative period in the White House 
together, came to the committee together, were reported out together, 
came to the calendar together but were separated out. That is unfair.
  I hope by the end of this work period Mr. Tharp will join John Lee on 
the Federal bench. They are two exceptionally good nominees. On behalf 
of Senator Kirk, I will do everything to make sure this happens in the 
days ahead.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. Mr. President, I rise today to speak on behalf of a friend 
of mine who is going to be voted on by the Senate shortly to be a U.S. 
district court judge for the Eastern District of Arkansas. But before I 
do, I need to offer a few comments on what the Senator from Iowa and 
the Senator from Illinois said a few moments ago that I agree with.
  It is taking too long to get these nominees to this point in the 
process. There are too many games that are being played. From my stand, 
both sides are at fault. I would hope my colleagues would stop playing 
games and stop even the blame game, but let's get to work and let's 
help clear up the backlog in the Federal judiciary.
  Right now, it is underresourced. We do have a judicial emergency in 
this particular district I am about to talk about. As they say, justice 
delayed is justice denied. We need these judges on the bench, and I 
would hope the partisanship would stop.
  In Arkansas we are very fortunate to have very strong Federal judges. 
We have a history of that. Part of the reason we do is because our 
judges are, for the most part, nonpolitical. Sure, they come from 
various backgrounds, but there is a consensus on these judges that they 
are going to be good judges, and that is the tradition we have in our 
State.
  We have a total of eight district court judges in our State, and Kris 
Baker fits perfectly in that line. She has a true record of 
distinguished service in the legal community. She is well known and 
well respected, and she will be a great U.S. district court judge for 
the Eastern District of Arkansas.
  The court right now, nationwide, is about 20 percent understaffed. 
That is why it is great to have someone who has an ABA ``well-
qualified'' recommendation to go along with her nomination.
  She came out of the Judiciary Committee on a very large bipartisan 
vote. The reason is she has been with a midsized law firm in Little 
Rock since 2000, she regularly has accepted prisoner and other 
appointment cases from the Federal courts, she has played a leadership 
role not just in the legal community but in other organizations in the 
larger community, and she is going to be a fantastic addition to the 
Federal bench, not just for Arkansas but nationwide.
  Whenever I look at these nominees, I ask myself three questions: 
First, can they be fair and impartial? I think for Kris, absolutely the 
answer is yes.
  Second, do they bring to the bench credentials that represent the 
best and the brightest in the legal community? In her case, the answer 
is yes.
  Third--this is especially important for trial court judges--do they 
have the proper judicial temperament? For Kris Baker, the answer to all 
three of these questions is a resounding yes.
  So I would ask my colleagues to give her a favorable voice vote, as I 
understand it, in a few moments. But that tells us how noncontroversial 
she is and what a great credit she has been to the legal community and 
how excited we are to have her as a member of the Federal judiciary.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise to speak in strong support of 
Judge Jacqueline Nguyen's nomination. She was unanimously approved by 
the Judiciary Committee. She is an outstanding jurist with a 10-year 
track record of success as a trial judge in my State.
  I recommended Judge Nguyen to President Obama to the district court 
in 2009 after my bipartisan judicial selection committee gave her its 
highest recommendation. The Senate confirmed her then unanimously 97 to 
0 in 2009. I have no doubt she will be an outstanding circuit court 
judge, and I hope my colleagues will support her nomination.
  Judge Nguyen earned her bachelor's degree from Occidental College and 
her law degree from the UCLA School of Law.
  After law school, she practiced commercial law for 4 years with the 
law firm of Musick, Peeler & Garrett. She then moved into public 
service, becoming an assistant U.S. attorney in Los Angeles. During her 
7 years there, she prosecuted a broad array of crimes, including 
violent crimes, narcotics trafficking, organized crime, gun cases, and 
all kinds of fraud.
  In 2000 she received a special commendation from FBI Director Louis 
Freeh for obtaining the first conviction ever in the United States 
against a defendant for providing material support to a designated 
terrorist organization.
  The Justice Department recognized her with numerous other awards and 
commendations for superior performance, and she was promoted to Deputy 
Chief of the General Crimes Section.
  In 2002 Governor Gray Davis appointed Judge Nguyen to the Los Angeles 
superior court, where she established a track record of success as a 
distinguished jurist.
  In 2009 President Obama nominated her to the district court on my 
recommendation, and she was confirmed unanimously.
  Over nearly 10 years, as a State and Federal judge, Judge Nguyen has 
presided over thousands of cases, including 75 jury trials and 12 bench 
trials. She prizes fairness and integrity, and treats all parties 
fairly and with respect.
  Those who know Judge Nguyen--including two former U.S. attorneys 
appointed by President George W. Bush--have praised Judge Nguyen for 
her first-rate legal mind and judicial temperament.
  Debra Yang, who led the U.S. Attorney's Office from 2002 to 2006, 
after being appointed by President George W. Bush, submitted a letter 
to the Judiciary Committee in support of Judge Nguyen's nomination.
  Yang says that she ``would make an excellent Federal . . . court 
judge.'' She also reports that her ``reputation among . . . colleagues 
is tremendous.''
  Thomas O'Brien, who was appointed U.S. attorney by President Bush in 
2007, has also submitted a letter endorsing Judge Nguyen's nomination. 
O'Brien says Judge Nguyen ``handled complex and controversial cases 
with technical finesse and grace'' and that Judge Nguyen is a ``highly 
qualified nominee who is intelligent, skilled, and exercises sound 
judgment.''
  But she also has an inspiring life story. She was born in South 
Vietnam in the midst of the Vietnam war. She came to America at the age 
of 10. Her family lived in a tent in a San Diego refugee camp for 3 
months before moving to Los Angeles, where her parents worked two or 
three jobs at a time.
  Judge Nguyen and her five siblings helped their parents after school 
and on weekends. They helped to clean dental offices and to peel and 
cut apples. They helped run a small doughnut shop, which their parents 
scrimped and saved to open.
  Judge Nguyen worked her way up--through school, as a lawyer and 
prosecutor, and as a trial judge. If she is confirmed today, she will 
be the first Asian-American female Federal appeals court judge, and I 
am proud to express my very strong support for her nomination.
  I would like to conclude by expressing my view that it is absolutely 
critical that cooperation on judicial nominations continue.
  Nearly 10 percent of judicial positions are currently vacant, Mr. 
President, as you well know--twice as many as when President Bush left 
office. This high vacancy rate is today being felt more than anywhere 
else by States in

[[Page 6009]]

the Ninth Circuit. California and Arizona are home to some of the 
busiest Federal trial courts in the Nation. This means businesses, 
individuals, and prosecutors already are struggling with severely 
overburdened Federal courts.
  The Ninth Circuit is also the busiest Federal appellate court in the 
country. It has over 1,400 appeals pending per three-judge panel--the 
most of any circuit by a wide margin, and over twice the average of the 
other circuits.
  The Judicial Conference of the United States has declared each Ninth 
Circuit vacancy a judicial emergency.
  Judge Nguyen's confirmation today will help ease the burden, but it 
will not do enough. Paul Watford is another outstanding Ninth Circuit 
nominee from California. He was approved by the Judiciary Committee 3 
months ago. Based on the calendar, he should be the next circuit court 
nominee to receive a confirmation vote in this body.
  He has sterling qualifications. He has worked as a Federal prosecutor 
and an appellate attorney at a prestigious law firm. He clerked for 
Chief Judge Alex Kozinski and for Justice Ruth Bader Ginsburg. He is a 
moderate nominee, well schooled in the law. He has support on both 
sides of the aisle, including from two former presidents of the Los 
Angeles chapter of the Federalist Society.
  So I hope the Senate will consider Mr. Watford's nomination very 
soon. It is a judicial emergency.
  So, once again, I thank the leaders on both sides for agreeing to 
bring Judge Nguyen's nomination to the floor. I urge my colleagues to 
support this nomination. I hope we will continue to confirm highly 
qualified nominees to our Federal courts, which is especially important 
to the Ninth Circuit.
  Mrs. BOXER. Mr. President, I wish to express my strong support for 
California District Court Judge Jacqueline Nguyen, who has been 
nominated for a seat on the Ninth Circuit Court of Appeals. When 
confirmed, Judge Nguyen will make history as the first Asian-American 
woman to serve on the Federal courts of appeals.
  Judge Nguyen has had a distinguished career. She is a former Federal 
prosecutor who secured the first-ever conviction of a defendant for 
providing material support to a designated foreign terrorist group. She 
served as a California Superior Court judge from 2002 until 2009, when 
she was nominated for a seat on the U.S. District Court for the Central 
District of California. She was confirmed by a vote of 97 to 0.
  I congratulate Judge Nguyen and her family on this important and 
historic day and urge my colleagues to vote to confirm this well-
qualified nominee to the Ninth Circuit.
  I thank the Chair and yield the floor.
  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. CONRAD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Casey). Without objection, it is so 
ordered.
  Mr. CONRAD. Mr. President, I ask for the yeas and nays on the first 
nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Jacqueline H. Nguyen, of California, to be United States Circuit 
Judge for the Ninth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Inouye) is 
necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from South Carolina (Mr. DeMint), the Senator from South Carolina (Mr. 
Graham), the Senator from Illinois (Mr. Kirk), the Senator from Indiana 
(Mr. Lugar), and the Senator from Alaska (Ms. Murkowski).
  Further, if present and voting, the Senator from South Carolina (Mr. 
DeMint) would have voted ``nay.''
  The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 91, nays 3, as follows:

                       [Rollcall Vote No. 88 Ex.]

                                YEAS--91

     Akaka
     Alexander
     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
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--3

     Lee
     Toomey
     Vitter

                             NOT VOTING--6

     DeMint
     Graham
     Inouye
     Kirk
     Lugar
     Murkowski
  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Kristine Gerhard Baker, of Arkansas, to be 
United States District Judge for the Eastern District of Arkansas.
  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of John Z. Lee, of Illinois, to be United 
States District Judge for the Northern District of Illinois.
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid on the table. The President 
will be immediately notified of the Senate's action.

                          ____________________