[Congressional Record (Bound Edition), Volume 158 (2012), Part 6] [Senate] [Pages 7497-7507] [From the U.S. Government Publishing Office, www.gpo.gov]EXECUTIVE SESSION ______ NOMINATION OF PAUL J. WATFORD, OF CALIFORNIA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT The PRESIDING OFFICER. Under the previous order, the Senate will proceed to executive session to consider the following nomination which the clerk will report. The legislative clerk read the nomination of Paul J. Watford, of California, to be United States Circuit Judge for the Ninth Circuit. The PRESIDING OFFICER. Under the previous order, there will be 1 hour of debate equally divided and controlled in the usual form. The Senator from Vermont. Mr. LEAHY. I am glad we are finally able to debate and vote on the nomination of Paul Watford of California to fill a judicial emergency vacancy on the Ninth Circuit. As the distinguished Presiding Officer knows, it was 3\1/2\ months ago that we voted Mr. Watford out of committee. We had not been able to get an agreement to debate or vote on this nomination since it was approved. So for the 27th time, the majority leader was forced to file cloture to get an up-or-down vote on one of President Obama's judicial nominations. Thankfully enough, Senate Republicans came forward to say they are not going to delay a vote or to continue a filibuster. We ought to just have an up-or-down vote, which we always used to do. Hopefully, we will not vote to promote a filibuster, but vote up or down, and I thank those Republicans who came forward and said enough of the cloture votes, let's vote. This nominee, Paul Watford, is highly qualified. In fact, he has the highest qualifications for the Ninth Circuit. He shouldn't be filibustered. He should not require a cloture vote. He is a nominee with impeccable credentials and qualifications. He served as a Federal prosecutor and is now a highly regarded appellate litigator in private practice. He served as a law clerk at the United States Supreme Court and at the United States Court of Appeals for the Ninth Circuit. The ABA Standing Committee on the Federal Judiciary gave Paul Watford the highest possible rating they could give and they gave it to him unanimously. He also has the strong support of his home State Senators, Senator Feinstein and Senator Boxer. He has widespread support across the spectrum, including known conservatives such as two former Presidents of the Los Angeles chapter of the Federalist Society, as well as Judge Alex Kozinski, a conservative Reagan appointee who is now Chief Judge of the Ninth Circuit. By any traditional measure, Paul Watford is the kind of judicial nominee who should be confirmed easily by an overwhelming vote--a vote of both Republicans and Democrats. I had hoped after the agreement between the Democratic and Republican Senate leadership to begin finally considering the backlog of judicial nominations from last year that the Senate was at last returning to regular order. The refusal of Senate Republicans to consent to a debate and vote on this nomination for more than 3\1/2\ months, however, again required the Majority Leader to file cloture to end another Republican filibuster. Senate Republicans continue to apply what they have admitted is a ``new standard'' to President Obama's judicial nominees. From the beginning of the Obama administration, Senate Republicans abandoned the standards and arguments they used to say should apply to judicial nominations. During the administration of the last President, a Republican, they insisted that filibusters of judicial nominees were unconstitutional. They threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes for each of President [[Page 7498]] Bush's judicial nominations. Many Republican Senators declared that they would never support the filibuster of a judicial nomination. Senate Republicans reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana. They tried to prevent an up-or-down vote on that nomination even though he was nominated by President Obama after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. Fortunately, the Senate rejected that unjustified filibuster and Judge Hamilton was confirmed with Senator Lugar's support. Senate Republicans previously engaged in misguided filibusters last year of Goodwin Liu's nomination to the Ninth Circuit and Caitlin Halligan's nomination to the D.C. Circuit. Each of those nominees is the kind of brilliant lawyer we should encourage to join the Federal bench. There were certainly no ``extraordinary circumstances'' for filibustering their nominations. Senate Republicans filibustered them anyway, setting a new and unfortunate standard for the Senate. Those filibusters demonstrated that any nominee can be filibustered based on concocted controversies and baseless claims. That was unfortunate and unwise. Senate Republicans have already succeeded in preventing confirmation votes on five of President Obama's judicial nominees who were blocked from a Senate vote after being voted out of the Senate Judiciary Committee. Paul Watford is the kind of person we want in our Federal judiciary. This is the kind of person when we talk about the Federal courts, we can say here is a judge we can look up to and who can inspire others who seek to be judges. He is not a nominee against whom a partisan filibuster would be justifiable, and I thank some of those Republican Senators who called me this weekend who said they would oppose a Republican filibuster. I thank them for that, because what they are doing is what is best for the Senate. By allowing a vote, they are doing the best for the Ninth Circuit but, even more importantly, they are doing what is best for the independence of our Federal judiciary. Because if one is going to vote to try to block somebody as qualified as Paul Watford, one is basically saying they don't care who the nominee is, they are going to block it, and that is not the message we should send if we are going to have an independent Federal judiciary in this country. He has a mainstream record. He demonstrates legal excellence and experience at the top of his profession. He clerked at the United States Supreme Court for Justice Ruth Bader Ginsburg and on the Ninth Circuit for now-Chief Judge Alex Kozinski, a conservative appointee of President Ronald Reagan. Over his 17-year legal career, Paul Watford has worked on briefs in nearly 20 cases before the United States Supreme Court, and has argued numerous cases before the Ninth Circuit Court of Appeals as well as the California appellate courts. As a Federal prosecutor in the 1990s, Mr. Watford handled prosecutions involving immigration and drug offenses, firearms trafficking, and major frauds. So he should be on the Ninth Circuit, and I am delighted, as I make a preliminary nose count, that he will be confirmed as a judge of the Ninth Circuit. When confirmed, he will be only the second African- American judge serving on the Ninth Circuit, joining Judge Johnnie Rawlinson of Nevada on the bench. And I will not be surprised when he is confirmed, because of his work as a tough but very fair prosecutor. It is no surprise that he had support from conservatives as well as liberals. The shock I had was that for a while, his nomination was being held up and we couldn't get a vote. Two former presidents of the Los Angeles Chapter of the Federalist Society wrote to the Judiciary Committee in support of Mr. Watford. Jeremy Rosen wrote: Everyone who knows Paul (whether they are conservative or liberal, or somewhere in between) recognizes that he possesses the qualities that are most needed in an appellate judge. While I find myself in somewhat frequent disagreement with the President on many issues (and an active supporter of one of his opponents), his nomination of Paul to the Ninth Circuit is a home-run and should receive bi-partisan support. Henry Weissman, another former Federal Society chapter President, wrote that he has ``never seen any hint of politics in Mr. Watford's lawyering'', and that he has ``every confidence that, as a judge, Mr. Watford would apply the law faithfully, objectively, and even- handedly.'' Conservative law professor Eugene Volokh of UCLA Law and creator of the conservative Volokh Conspiracy blog, expressed his strong support for Mr. Watford to the Committee, writing: He has all the qualities that an appellate judge ought to have: intellectual brilliance, thoughtfulness, fairness, collegiality, an ability to deal civilly and productively with colleagues of all ideological stripes, and a deep capacity for hard work. . . . Paul is the sort of moderate Democratic nominee that moderates and conservatives, as well as liberals, should solidly support. Conservative law professor Orin Kerr of George Washington University Law, a former special counsel to Senator Cornyn, called him ``extremely bright, a moderate, and very much a lawyer's lawyer,'' and concluded an online post saying, ``I hope he will be confirmed.'' In their letter of support, 32 of the clerks who served with him at the Supreme Court from the chamber of all the other Justices concluded: ``We are unanimous in our view that Paul possesses all the qualities of the most highly regarded jurists: powerful analytical abilities, a readiness to listen to and consider fairly all points of view, a calm temperament, and a prodigious work ethic.'' A number of corporate general counsels from leading U.S. corporations have written us urging confirmation: Mr. Watford has represented a broad spectrum of clients, both in private industry as well as in the public sector. In doing so, he has demonstrated an understanding of the legal and economic challenges faced in both spheres, and an appreciation for the importance of fair, consistent application of the rules of law that govern business. The assistant general counsel of Mattel joins in this support, writing: ``[I can] personally attest to his reputation for being remarkably intelligent, insightful and evenhanded. He is highly regarded within his firm, amongst his clients, and within the wider legal community for his exceptional skills as an appellate practitioner.'' Daniel Collins, an Associate Deputy Attorney General during the administration of President George W. Bush, described Paul Watford as ``incredibly intelligent and has solid integrity and great judgment.'' He concluded that this judicial nominee would not ``approach the job with any kind of agenda other than to do what is right and consistent with precedent as he understands it.'' I ask unanimous consent that copies of letters of support be printed in the Record at the conclusion of my statement. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.) Mr. LEAHY. Paul Watford is far from an ideological, partisan selection. He shouldn't engender any serious objection; he is too good for that. He is the kind of nominee who, as my years here in the Senate demonstrate, normally receives unanimous support. It would usually not even require a roll call vote, because he has the qualifications, the judgment, and the ability. Maybe some were concerned that he was too well qualified or relatively young, and so some feared he might some day be nominated to a still higher court so they wanted to avoid voting on his nomination as they did when Elena Kagan was nominated to the D.C. Circuit by President Clinton, or when they delayed a vote as they did with Judge Sonia Sotomayor when she was nominated to the Second Circuit by President Clinton. I strongly disagree with those who seek to nitpick this man's legal career. Since his service as a Federal prosecutor, he has worked at a highly respected Los Angeles law firm on a wide variety of matters. He has always represented his clients ethically and to the best of his legal ability. [[Page 7499]] The distinguished Presiding Officer, who has been an attorney general of his State, knows that lawyers are supposed to give their best counsel and their best effort to those whom they are representing. That is what lawyers are supposed to do. In my case, I defended criminals in private practice. I then prosecuted criminals as a prosecutor. In both cases, I knew what my role in the legal system was. As I said, that is what lawyers are supposed to do. Actually, that is what Republicans used to argue to defend the Federalist Society and corporate lawyers that were being nominated by a Republican President. As Chief Justice Roberts noted during his confirmation hearing, lawyers represent clients. They do not stand in their client's shoes and they should not have their client's legal positions used against them. Let's abandon the crude and inaccurate litmus tests being applied to President Obama's nominees. Let's stop the caricaturing. If not, no lawyer could ever be confirmed to the Federal bench. When we have a lawyer who has actually been active in his or her practice, of course they are going to represent some people others disagree with. Of course, they are going to represent some issues where others may, as individual Senators, feel they would rather be on the other side of the issue. But how quickly would our legal system break down if lawyers could only represent one side of an issue, or when a matter comes to court we can only hear from one side and not from the other? One of the most valued legal systems in the world would disintegrate. As an attorney in private practice Paul Watford has advocated positions well within the mainstream of legal argument. There were only two cases on which he worked as a lawyer among the hundreds and possibly thousands in which he has been involved, that were criticized by Committee Republicans. In one, the well-known law firm with which he is affiliated represented groups challenging the controversial Arizona immigration law, and won a preliminary injunction against certain provisions for violating the Constitution. In his role as an attorney he was consulted by others working on the case to review and edit their preliminary injunction motion. That motion contains arguments based on Federal preemption, due process, and other constitutional rights that are well within the mainstream of legal advocacy and that were raised, as well, by the U.S. Department of Justice in its filings. That a Senator might disagree with the position he assisted in developing on behalf of his firm's clients in this case is hardly a reason to oppose his nomination. I did not oppose Chief Justice Roberts' nomination because he helped and advised the challenge resulting in Bush v. Gore. Paul Watford's legal work at Munger, Tolles was professional, principled and not out of the mainstream. The other case on which critics have fastened as if to justify their opposition was his legal advocacy on behalf of clinical ethicists and critical care providers challenging a specific lethal injection protocol. He did not challenge the death penalty as unconstitutional. The legal challenge was to the manner in which it was being administered. In fact, in direct and express answers to questions from Senator Grassley, the nominee wrote that he does not have any personal conviction or religious beliefs that would impact the way he would rule in a death penalty case and that he would have no difficulty ruling fairly and impartially in cases involving the death penalty. He also answered that he believes the death penalty an acceptable form of punishment and that he would have no difficulty faithfully applying the Supreme Court's precedent in that regard. How this record can be seen as justifying opposition is beyond me. Our legal system is an adversary system that is predicated upon legal advocacy from both sides. No nominee should be disqualified for representing clients zealously. Go back in history. John Adams, one of the most revered Founders and later President of this country, wrote that his representation of the British soldiers in the controversial case regarding the Boston Massacre was ``one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.'' Did he agree with the British in holding the colonies subservient? Of course not. Did he agree with the efforts of us in this country to be free people--free from alliance with Great Britain? Of course he did. That is what he did when he helped and when he served as one of the Founders of this country and when he became President. But he also knew our whole system broke down if somebody within a court did not have adequate representation on both sides, and that is why he represented British soldiers in the case involving the Boston Massacre--not because he was supportive of what the British were doing and not because he wanted anything other than to have us as a free people, but because he wanted to make sure that in a free country, in a free United States of America, when someone goes before our courts, they are going to have representation on both sides, and that is the way it should be. At his confirmation hearing to become the Chief Justice of the United States, John Roberts made the point: [I]t's a tradition of the American Bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. He did that for a reason, because he wanted to show that the Revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. Our Founders thought that they were not being given their rights under the British system to which they were entitled, and by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it, and that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of the client, is critical to the fair administration of justice. That has always been our tradition. I hope it always will be our tradition, but I am concerned that some feel it should change. This litmus test that would disqualify nominees because as a lawyer they represented a side in a case on which we disagree is dangerous and wrong. Almost every nominee who has actually been a practicing attorney who has had more than one client in their life is going to fail such a test. They are going to be disqualified, because if they are practicing law, if they are doing what they are supposed to do, if they are making sure that someone is adequately represented in court no matter how unpopular that case may be, then of course they are going to take on some cases we might not like. The distinguished Presiding Officer was the chief prosecuting officer of his State. I was the chief prosecuting officer of my county. I prosecuted some people whom I wanted to go to jail for as long as possible. But the last thing I wanted was for them not to have a good and adequate lawyer on the other side. I wanted them to have the best of counsel on the other side, because that way, society is protected. That way, our court system is protected. That way, it meant that if any one of us came in and were innocent and were being charged, we would know there was an example of always having representation. Republican obstruction of this nomination is particularly damaging given the dire need for judges on the Ninth Circuit. With three times the number of cases pending as the next busiest circuit and twice the caseload of the judges on other circuits, the Ninth Circuit cannot afford further delay filling its emergency vacancies. The 61 million people served by the Ninth Circuit are not served by this delay. I have been asked for months that the Senate expedite consideration of this nomination and that of Justice Hurwitz of Arizona to fill these judicial emergency vacancies. 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 [[Page 7500]] 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 five 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 September 2011, the Ninth Circuit had 14,041 cases pending before it, far more than any other circuit. When Senate Republicans filibustered the nomination of Caitlin Halligan to the D.C. Circuit for positions she took while representing the State of New York, they contended that their underlying concern was that the caseload of the D.C. Circuit did not justify the appointment of another judge to that Circuit. I disagreed with their treatment of Caitlin Halligan, their shifting standards and their purported caseload argument. But if caseloads were really a concern, Senate Republicans would not have delayed action on this nomination to a judicial emergency vacancy on the overburdened Ninth Circuit for more than 3 months. There is no justification for refusing to address the needs of the Ninth Circuit. A few years ago the Senate was forced to invoke cloture to overcome Republican filibusters of President Clinton's nominations of Richard Paez and Marsha Berzon to the Ninth Circuit. That obstruction is being repeated. We did not engage in tit for tat when the presidency changed. During the Bush administration, the Senate proceeded to confirm seven of the nine Ninth Circuit nominees of President Bush. Four of President Bush's Ninth Circuit nominees were confirmed during his first 4-year term: Judge Richard Clifton, Judge Jay Bybee, Judge Consuelo Callahan, and Judge Carlos Bea. By contrast, Senate Republicans have been opposing our moving forward to consider and confirm Paul Watford and Andrew Hurwitz, who are both strongly supported by their home State Senators, to fill judicial emergency vacancies. Senate Republicans have already successfully filibustered the nomination of Goodwin Liu, who also had the strong support of his home State Senators. I urge Senators to show that we can work together to reduce the vacancies that are burdening the Federal judiciary. Do what some of my friends on the Republican side of the aisle have said to me, which is to move forward to vote for this nominee. They should also help the millions of Americans who rely on our Federal courts who seek justice. We can show we intend to do that. We can start right here by voting to confirm this good man, Paul Watford, who is a highly qualified nominee to the Ninth Circuit Court of Appeals, and say to the American people, we believe in justice for everybody here. Exhibit 1 Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL, April 30, 2012. Re Paul Watford. Hon. Harry Reid, Majority Leader, U.S. Senate, Hart Senate Office Building, Washington, DC. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Russell Senate Office Building, Washington, DC. Hon. Mitch McConnell, Minority Leader, U.S. Senate, Russell Senate Office Building, Washington, DC. Hon. Charles Grassley, Ranking Member, Committee on the Judiciary, U.S. Senate, Hart Senate Office Building, Washington, DC. Dear Senators: We write to provide our enthusiastic support for Paul Watford's nomination to serve on the United States Court of Appeals for the Ninth Circuit. We have known Paul personally and professionally for nearly twenty years, having met him in 1994 when we served together as clerks to Judge Kozinski on the Ninth Circuit. One of us also spent a second year working with Paul during the year he spent as clerk to Justice Ginsburg at the United States Supreme Court. During the crucible those intense years, we learned a lot about Paul's approach to legal issues, his attitudes about legal rules and precedents, and perhaps most importantly his demeanor when confronted with competing views of what the law is or should be. Paul is intelligent, thoughtful, balanced and fair. He is moderate, not extreme, in his views. As a serious student of the law, his instinct is to look for the answer dictated by precedent, not his personal views. And even in the face of heated debate, he maintains an even keel, demonstrating a temperament that is well-suited to the act of judging. Others can and no doubt will speak to Paul's obvious qualifications, including his demonstrable intelligence and distinguished professional career. We can speak, from both sides of the political aisle (one registered Democrat, one registered Republican), to the personal qualities and temperament that make Paul not only qualified but uniquely well-suited to the position to which he has been nominated. We could go on (and on) with our praise for Paul, but the simple fact is that he will make an excellent judge. We urge you to bring Paul's nomination to a vote, and to vote to confirm. Very truly yours, Sean W. Gallagher, Mark S. Ouweleen. ____ May 15, 2012. Dear Majority Leader Reid and Minority Leader McConnell, We write in strong support of Paul Watford's nomination to be a Judge on the United States Court of Appeals for the Ninth Circuit. All of us served as law clerks at the Supreme Court during the same year that Paul clerked for Justice Ruth Bader Ginsburg (the October 1995 Term of the Court). During that time, some of us worked with Paul directly in Justice Ginsburg's chambers; others of us worked directly with Paul on cases that we were assigned to in common; and all of us got to know Paul as a colleague. Based on what we saw then, and what we know of Paul's career in the years since, we believe that Paul is a superb choice to be a Judge on the Ninth Circuit. We encourage you to support his nomination and to bring it to a vote expeditiously. Paul came to the Supreme Court after clerking for Circuit Judge Alex Kozinski, a Reagan appointee, and after attending UCLA Law School. His path to a Supreme Court clerkship reflected his work ethic and his legal acumen. At the Supreme Court, Paul brought those qualities to bear in analyzing difficult legal problems and finding ways to explain them clearly and sensibly. In so doing, Paul won respect from everyone he worked with. Paul invariably got along well with his peers, was always a superb listener, and treated everyone with kindness and respect. Those of us who clerked with Paul for Justice Ginsburg know that she praised his work as exemplary and that she is a tough judge of legal talent. After leaving the Court, Paul has had a distinguished legal career in public service and private practice. At the United States Attorney's Office in Los Angeles, Paul was a standout lawyer in the criminal division and appeared regularly before the Ninth Circuit. For many years, Paul has been a partner at Munger, Tolles & Olson, where he helps lead that firm's appellate practice and has represented a wide range of commercial clients in important and complex appellate matters. Paul has been a lawyer representative to the Ninth Circuit Judicial Conference, and has achieved distinction in the profession. Given his experience as a law clerk, as a federal prosecutor, and as a lawyer in private practice, Paul has an ideal background for the position of a Circuit Judge. The group below is composed of individuals with very different political viewpoints and represents clerks from the chambers of every Justice on the Supreme Court during the OT95 term. We are unanimous in our view that Paul possesses all the qualities characteristic of the most highly regarded jurists: powerful analytical abilities, a readiness to listen to and consider fairly all points of view, a calm temperament, and a prodigious work ethic. We respectfully request that the Senate bring Paul's nomination to a vote and confirm him to the Ninth Circuit. Sincerely, Julia Ambrose, David Barron, Stuart Benjamin, Yochai Benkler, Steve Chanenson, Nancy Combs, Jeff Dobbins, Charlie Duggan, Ward Farnsworth, Lisa Beattie Frelinghuysen, Shawn Fagan, Sean Gallagher, Heather Gerken, Craig Goldblatt, Mark Harris, Julie Katzman, Joseph Kearney, Steve Kinnaird, Kelly Klaus, Laurie Allen Mullig, Eileen Mullen, Kate Moore, Jennifer Newstead, Gretchen Rubin, Kevin Russell, Maria Simon, Simon Steel, Ted Ullyot, Phil Weiser, Mike Wishnie, Michael Wong, Ernie Young. [[Page 7501]] ____ Hon. Harry Reid, Majority Leader, U.S. Senate, 522 Hart Senate Office Building, Washington, DC. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, 433 Russell Senate Office Building, Washington, DC. Hon. Mitch McConnell, Minority Leader, U.S. Senate, 361A Russell Senate Office Building, Washington, DC. Hon. Charles Grassley, Ranking Member, Committee on the Judiciary, U.S. Senate, 135 Hart Senate Office Building, Washington, DC. Dear Majority Leader Reid, Minority Leader McConnell, Chairman Leahy, and Ranking Member Grassley: We write in support of the nomination of Paul J. Watford to the United States Court of Appeals for the Ninth Circuit. Like Mr. Watford, we have all clerked for the Honorable Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and we wish to echo the strong support that Chief Judge Kozinski has given to Mr. Watford. All of us believe that Mr. Watford has the ability and character to be an excellent federal appellate judge. Mr. Watford has a stellar reputation in the legal community. He is known not only for his intelligence, but also for his collegiality and even temperament. For those of us who know Mr. Watford personally, his graciousness, sincerity and brilliance are immediately apparent. Mr. Watford's legal career confirms that he has the experience, skills and demeanor well-suited for the bench. He clerked for two distinguished jurists, then-Judge Kozinski on the U.S. Court of Appeals for the Ninth Circuit and Justice Ruth Bader Ginsburg on the Supreme Court of the United States. He served in the Department of Justice as an Assistant United States Attorney in the Central District of California. Mr. Watford is currently a partner in the Los Angeles office of Munger, Tolles, & Olson LLP, a well- respected law firm. He also has taught a course on judicial writing for prospective law clerks at USC's Gould School of Law. In his experiences in public service and private practice, Mr. Watford has gained the respect and admiration of his peers. At every stage of his career, he has demonstrated a strong work ethic, a judicious temperament, unquestionable 1 integrity, a collaborative and respectful manner, and a deeply thoughtful approach to each and every issue that has crossed his desk. As a close family of Kozinski clerks, we share Chief Judge Kozinski's strong faith in Mr. Watford's abilities. We believe he has the necessary qualifications and characteristics to make an exemplary federal appellate judge. Based on his record and personality, we have no doubt that Mr. Watford would approach each case with an open mind and make thoughtful judgments based on the law. Accordingly, we recommend him for this position without hesitation or reservation. Sincerely, Jerry L. Anderson, Drake University Law School, Judge Alex Kozinski (1986-1987); Fred A. Bernstein, Judge Alex Kozinski (1996-1997); James Burnham, Judge Alex Kozinski (2009-2010); Steven A. Engel, Dechert LLP, Judge Alex Kozinski (2000- 2001); Justice Anthony M. Kennedy (OT 2001); Kristin A. Feeley, Judge Alex Kozinski (2009-2010); Stuart Banner, UCLA School of Law, Judge Alex Kozinski (1988-1989); Justice Sandra Day O'Connor (OT 1991); William A. Burck, Quinn Emanuel Urquhart & Sullivan LLP, Judge Alex Kozinski (1998- 1999); Justice Anthony M. Kennedy (OT 1999); Jacqueline Gerson Cooper, Judge Alex Kozinski (1990-1991); Justice Anthony M. Kennedy (OT 1991); Susan E. Engel, Kirkland & Ellis LLP, Judge Alex Kozinski (2000-2001); Justice Antonin Scalia (OT 2001); Victor Fleischer, Professor of Law, University of Colorado, Judge Alex Kozinski (1997-1998). Troy Foster, Wilson Sonsini Goodrich & Rosati, Judge Alex Kozinski (1999-2000); Sean W. Gallagher, Judge Alex Kozinski (1994-1995), Justice Sandra Day O'Connor (OT 1995); Stephanie Grace, Latham & Watkins LLP, Judge Alex Kozinski (2010-2011); Robert K. Hur, Judge Alex Kozinski (2001-2002), Chief Justice William H. Rehnquist (OT 2002); T. Haller Jackson IV, Tulane University School of Public Health & Tropical Medicine, Judge Alex Kozinski (2009-2010); Theane Evangelis Kapur, Gibson, Dunn & Crutcher LLP, Judge Alex Kozinski (2003-2004), Justice Sandra Day O'Connor (OT 2004); Scott Keller, Judge Alex Kozinski (2007-2008), Justice Anthony M. Kennedy (OT 2009); John P. Franz, Judge Alex Kozinski (1996-1997); Daniel L. Geyser, Gibson, Dunn & Crutcher LLP, Judge Alex Kozinski (2002-2003); Leslie Hakala, Judge Alex Kozinski (1997-1998), Justice Sandra Day O'Connor (OT 1999); Eitan Hoenig, Wachtell, Lipton, Rosen & Katz, Judge Alex Kozinski (2010- 2011); Robert E. Johnson, Judge Alex Kozinski (2009-2010); Kevin M. Kelly, Gendler & Kelly, Judge Alex Kozinski (1989- 1990), Justice Sandra Day O'Connor (OT 1990); Michael S. Knoll, Theodore K. Warner Professor, Law School Professor of Real Estate, Wharton School Co-Director, Center for Tax Law, and Policy University of Pennsylvania; Judge Alex Kozinski (1986). Tara Kole, Gang, Tyre, Ramer & Brown, Judge Alex Kozinski, (2003-2004), Justice Antonin Scalia (OT 2004); Chi Steve Kwok, Judge Alex Kozinski (2002-2003), Justice Anthony M. Kennedy (OT 2003); C.J. Mahoney, Judge Alex Kozinski (2006- 2007), Justice Anthony M. Kennedy (OT 2007); Chris Newman, George Mason University School of Law, Judge Alex Kozinski (1999-2000); Christopher R.J. Pace, Weil Gotshal & Manges LLP, Judge Alex Kozinski (1991-1992), Justice Anthony M. Kennedy (OT 1992); Mark A. Perry, Gibson, Dunn & Crutcher LLP, Judge Alex Kozinski (1991-1992), Justice Sandra Day O'Connor (OT 1993); David A. Schwarz, Irell & Manella LLP, Judge Alex Kozinski, (1988-1989); Kathryn H. Ku, Munger, Tolles & Olson LLP, Judge Alex Kozinski (2003-2004); Joshua Lipshultz, Gibson, Dunn & Crutcher LLP, Judge Alex Kozinski (2005-2006), Justice Antonin Scalia (OT 2006); Laura Nelson, Judge Alex Kozinski (1985-1986); Mark Ouweleen, Bartlitt Beck Herman Palenchar & Scott LLP, Judge Alex Kozinski (1994- 1995); Eugene Paige, Keker & Van Nest LLP, Judge Alex Kozinski (1998-1999); Justice Anthony M. Kennedy (OT 2000); Kathryn Haun Rodriguez, Judge Alex Kozinksi (2000-2001), Justice Anthony M. Kennedy (OT 2004); K. John Shaffer, Stutman, Treister & Glatt PC, Judge Alex Kozinski (1989- 1990), Justice Anthony M. Kennedy (OT 1990). Steven M. Shepard, Judge Alex Kozinski (2007-2008), Justice Anthony M. Kennedy (OT 2008); Elina Tetelbaum, Wachtell, Lipton, Rosen & Katz, Judge Alex Kozinski (2010-2011); Alexander ``Sasha'' Volokh, Assistant Professor, Emory Law School, Judge Alex Kozinski (2004-2005); Justice Sandra Day O'Connor and Justice Samuel Alito (OT 2005); Christopher J. Walker, Assistant Professor of Law, The Ohio State University, Judge Alex Kozinski (2006-2007), Justice Anthony M. Kennedy (OT 2008); Harry Susman, Judge Alex Kozinski (1996-1997); Justice Anthony M. Kennedy (OT 1997); Mary Ann Todd, Munger, Tolles & Olson LLP, Judge Alex Kozinski (1993- 1994); Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law, Judge Alex Kozinski (1992-1993), Justice Sandra Day O'Connor (OT 1993). ____ The General Counsels of Four Large Businesses, February 1, 2012. Re Nomination of Paul J. Watford as Circuit Judge of the U.S. Court of Appeals for the Ninth Circuit. Hon. Patrick J. Leahy, Chairman, U.S. Senate, Committee on the Judiciary, Washington, DC. Hon. Chuck Grassley, Ranking Member, U.S. Senate, Committee on the Judiciary, Washington, DC. Dear Chairman Leahy and Ranking Member Grassley: We write to express our support for the nomination of Paul J. Watford to the U.S. Court of Appeals for the Ninth Circuit, and urge that the Committee promptly and favorably act to send his nomination to the floor for confirmation. We are General Counsels of a broad spectrum of American businesses. Everything we know about Mr. Watford, both from the direct contact some of us have had to others who have only seen his work, indicates that he would be a superb addition to the bench. For the last 11 years of private practice at one of the nation's premier law firms, Mr. Watford has represented a broad spectrum of clients, both in private industry as well as in the public sector. In doing so, he has demonstrated an understanding of the legal and economic challenges faced in both spheres, and an appreciation for the importance of fair, consistent application of the rules of law that govern business. The jobs, goods and services that constitute our economy require exactly that objective and impartial approach to deciding the important legal principles that come before a court such as the Ninth Circuit. We have every confidence that Mr. Watford has the right experience, intellect and character for such an important role in the judiciary. It also is noteworthy that Mr. Watford's experiences prior to joining private practice demonstrate the same even-handed perspective. He served as a law clerk on the Ninth Circuit and on the Supreme Court to jurists who are known to come at issues from very different places and often end at very different conclusions. Working closely with such diverse intellects is emblematic of Mr. Watford's own capabilities and temperament, and his legal talents are reflective of their skills as well. He is a superb writer, a keen intellect, a strong oral advocate, and someone with a genuine appreciation for the real interests on all sides. He is exactly the kind of individual that any plaintiff or defendant--person, business or government--would welcome deciding their case, and would trust would do so fairly. We urge the Committee to swiftly and favorably act on Mr. Watford's nomination. Respectfully, Alan J. Glass, Vice President, General Counsel & Secretary, CIRCOR International, Inc.; Randal S. Milch, Executive Vice President and General Counsel, Verizon Communications Inc.; Bob Normile, Executive Vice President and Chief Legal Officer, Mattel, Inc.; Kent Walker, Senior Vice President and General Counsel, Google, Inc. [[Page 7502]] ____ Mattel, Inc., El Segundo, CA, January 31, 2012. Hon. Patrick J. Leahy, Chairman, Senate Judiciary Committee, 224 Dirksen Senate Office Building, Washington, DC. Hon. Charles E. Grassley, Ranking Member, Senate Judiciary Committee, 224 Dirksen Senate Office Building, Washington, DC. Dear Chairman Leahy and Senator Grassley: I write this letter in support of the nomination of Paul Watford to the United States Court of Appeals for the Ninth Circuit. I have known Paul on a professional basis for a number of years, and can personally attest to his reputation for being remarkably intelligent, insightful and evenhanded. He is highly regarded within his firm, amongst his clients, and within the wider legal community for his exceptional skills as an appellate practitioner. More importantly, he is remarkably sincere and friendly, and working with him is always a pleasure. Paul enjoys an exemplary record as an attorney: UCLA Law Review Editor, clerk to Judge Alex Kozinski of the Ninth Circuit, clerk to Justice Ruth Bader Ginsburg of the U.S. Supreme Court, Assistant U.S. Attorney in Los Angeles, and currently, a partner at the esteemed firm of Munger, Tolles & Olson. Paul has had significant, substantive involvement in bar association activities; most notably, he served as the Chair of the ABA Litigation Section's Appellate Practice Committee, and on the ABA's Amicus Curiae Committee. In addition, Paul shares his talent and time with the broader community, serving on the board of a non-profit legal services provider for low income clients and teaching upper- division legal writing at USC. Certainly, Paul's resume is testament to his stellar qualifications and his dedication to the law. Paul has assisted Mattel with several appellate matters. His analysis, reasoning and writing is of the highest caliber. His performance as a ``judge'' on a moot court panel, however, is what stands out most in my mind. His questions went right to the core issues, his follow-up questioning was quick and insightful, and his discussion of legal nuances and distinctions came easily and naturally. As always, his demeanor was thoughtful, attentive and respectful. Paul has all the hallmarks of an excellent jurist, and I highly endorse his appointment to the Ninth Circuit. Sincerely, Jill E. Thomas. Mrs. BOXER. I rise today to support Paul Watford, a California nominee for the Ninth Circuit Court of Appeals whose nomination is before us today. Mr. Watford has been nominated for a seat that is designated as a judicial emergency, which means that it is critical we move swiftly to confirm him. I was pleased when President Obama nominated Mr. Watford to serve on the U.S. Ninth Circuit Court of Appeals. He has a wide breadth of experience, ranging from public service to the private sector, and he will make an excellent addition to the federal bench. Let me say a few words about his background. Mr. Watford was born in Garden Grove, CA. He is a graduate of the University of California at Berkeley, and received his law degree from the University of California at Los Angeles, where he graduated with honors and was an editor of the UCLA Law Review. Following law school, he clerked for Judge Alex Kozinski on the Ninth Circuit Court of Appeals, then clerked for Justice Ruth Bader Ginsburg on the United States Supreme Court. From 1997 through 2000, Mr. Watford served as a federal prosecutor in the United States Attorney's Office for the Central District of California, where he handled a variety of criminal trial and appellate matters for the office, including major fraud investigations. After his tenure as a prosecutor, Mr. Watford entered private practice--first with Sidley & Austin, then with his current law firm, Munger Tolles, where he is a partner specializing in appellate casework and complex commercial litigation. In addition to his record as a lawyer, Mr. Watford has served in bar associations and professional committees. He has served as Co-Chair of the American Bar Association's Appellate Practice Committee, and he is a member of the Central District Court's Magistrate Selection Panel. The American Bar Association has given him their highest rating-- unanimously well qualified. Mr. Watford has earned the respect of attorneys who know his work. For example, Daniel Collins, who clerked for Justice Scalia and served as an attorney in both Bush administrations, said this about Mr. Watford: He just embodies the definition of judicial temperament-- very level-headed and even-keeled. . . . I don't think he'll approach the job with any kind of agenda other than to do what is right and consistent with precedent as he understands it. And Jeremy Rosen, a partner at Horvitz & Levy and former president of the Los Angeles Lawyers Chapter of the Federalist Society, said Mr. Watford is a nominee many conservatives could support: I know he has the respect of anyone who has come into contact with him. He is exceptionally bright and well qualified. . . . I ask unanimous consent to have printed in the Record letters from Daniel Collins, Jeremy Rosen, Eugene Volokh and Henry Weissmann immediately following my remarks. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.) Mrs. BOXER. In conclusion, Mr. Watford is a talented lawyer who has earned the respect of his peers for his work in the public and private sectors. He will be a great addition to the federal bench, and I urge my colleagues to join me in voting for him today. Exhibit 1 Los Angeles, CA, May 18, 2012. Re Nomination of Paul J. Watford as Circuit Judge, United States Court of Appeals for the Ninth Circuit. Hon. Harry Reid, Majority Leader, U.S. Senate, 522 Hart Senate Office Building, Washington, DC. Hon. Patrick J. Leahy, Chairman, U.S. Senate, Committee on the Judiciary, 473 Russell Senate Office Building, Washington, DC. Hon. Mitch McConnell, Republican Leader, U.S. Senate, 317 Russell Senate Office Building, Washington, DC. Hon. Chuck Grassley, Ranking Member, U.S. Senate, Committee on the Judiciary, 135 Hart Senate Office Building, Washington, DC. Dear Senators: I write to express my strong support for the confirmation of Paul J. Watford to be a Circuit Judge on the United States Court of Appeals for the Ninth Circuit. Having known and worked with Paul for more than eight years at Munger, Tolles & Olson LLP in Los Angeles, I am confident that he has the skills, judgment, temperament, and integrity to be an outstanding appellate judge. Paul and I come from opposite ends of the political spectrum. I have been a conservative Republican for my entire adult life, I am a member and supporter of the Federalist Society, and I served in the Justice Department in Washington, D.C. during the Administrations of both George H.W. Bush and George W. Bush. Despite our political differences, I can unreservedly support Paul's nomination because I believe that he understands and respects the crucial distinction between law and politics. I say that based on years of having observed how he approaches legal precedent and how he analyzes complex legal arguments. During our time together at Munger, Tolles, I have frequently consulted Paul on many difficult legal issues, and he has served many times as a ``moot court'' judge helping me to prepare for oral arguments. Given Paul's brilliance and honesty, I know that I can always count on him to quickly spot the weak points in a legal argument and to give me a frank and professional assessment of the applicable case law. Few traits are more important in a Circuit Judge than a willingness to adhere faithfully to precedent, and I have always been impressed by the thoroughness, objectivity, and candor that Paul brings to bear in his evaluation of the relevant body of law in any given area. I strongly agree that judges must respect the proper limits of their office and should not attempt to implement a personal or ideological agenda from the bench. I believe that Paul understands those limits. While he and I may differ on certain jurisprudential issues, I have always been impressed by the even-handed and measured approach he brings to bear in analyzing legal problems. I feel confident that, on the bench, he would do his level best to fairly reach the correct answer under the law as be sees it. To my mind, another indication of Paul's fairmindedness, and of his ability to separate law and politics, is the wide range of the matters on which he has worked. Paul has gravitated to many of the most interesting legal matters in the firm, and that has unsurprisingly led him to work on important matters involving controversial issues that may generate strong reactions on one or the other end of the political spectrum. I do not think that Paul's work on these or any other cases can be viewed as suggesting that he [[Page 7503]] has an ideological agenda that would distort his approach to the law on the bench. Indeed, one of the more controversial cases that Paul worked on was Mohamad v. Jeppesen DataPlan Inc., in which he and I represented the defendant company, which was accused by the plaintiffs (who were represented by the ACLU) of assisting the CIA in carrying out its alleged ``extraordinary rendition'' program. That Paul has shown a willingness to work, with great professionalism, on such a diverse set of important matters seems to me to dispel any concern that his approach to judging would be anything other than evenhanded. Paul has always struck me as a lawyer's lawyer and as refreshingly oblivious to ``political'' concerns. On the bench, he'd be a judge's judge. Lastly, I would note that Paul has an outstanding disposition. Anyone who has met him for any length of time cannot fail to be impressed by his graciousness and professional demeanor. He is without guile. On the bench, he would epitomize judicial temperament. I recognize the importance of the decision to confirm an individual to a lifetime appointment as a federal appellate judge. I am confident that Paul Watford has the talent, fairness, and integrity to be an excellent jurist, and I am pleased to support his confirmation. Sincerely, Daniel P. Collins. ____ Horvitz & Levy LLP, Encino, CA, January 26, 2012. Re Nomination of Paul Watford. Hon. Patrick J. Leahy, Chairman, Senate Judiciary Committee, Dirksen Senate Office Building, Washington, DC. Hon. Charles E. Grassley, Ranking Member, Senate Judiciary Committee, Dirksen Senate Office Building, Washington, DC. Dear Chairman Leahy and Senator Grassley: I write this letter in support of the nomination of Paul Watford to the United States Court of Appeals for the Ninth Circuit. I have known Paul for over a decade, first as a colleague and then as a friendly competitor in the relatively small California appellate bar. By way of background, I am a partner at Horvitz & Levy LLP, the largest civil appellate law firm in California. My practice primarily focuses on handling appeals in the Ninth Circuit and California appellate courts. At the outset of my career, I had the privilege of serving as a law clerk for a judge on the Ninth Circuit. I am also a member of the National Chamber Litigation Center's California Advisory Committee and past president of the Los Angeles Chapter of the Federalist Society. While I find myself in somewhat frequent disagreement with the President on many issues (and an active supporter of one of his opponents), his nomination of Paul to the Ninth Circuit is a home-run and should receive bi-partisan support. As an appellate lawyer, I care deeply about our nation's appellate courts and see on a daily basis the important role they play in our society. For appellate courts to effectively serve the public, it is vitally important that brilliant, collegial, and fair-minded men and women serve as appellate judges. Paul Watford is such a person. Paul graduated with honors from UCLA Law School and then served as a law clerk to two extremely distinguished judges (one Republican and one Democrat), Alex Kozinski and Ruth Bader Ginsberg. Paul then served the public admirably as an assistant United States Attorney. Since 2000, Paul has been an extremely distinguished appellate lawyer in private practice where he has handled many complex and sophisticated appeals. Throughout his career, Paul has shown himself to possess excellent legal analysis and judgment. Indeed, there are few lawyers in California (or elsewhere) who are better prepared for the intellectual challenges of becoming an appellate judge. Most lawyers who have achieved as much as Paul tend to be unpleasant egomaniacs. Not Paul. He is humble, polite and a good listener. I have no doubt that he will have collegial relations with the other judges on the Ninth Circuit. I also have no doubt that Paul will be fair-minded and will carefully apply the relevant legal precedent to each case he decides. Through his clerking experience, and his public and private practice, Paul has always demonstrated high integrity and ethics. In short, everyone who knows Paul (whether they are conservative or liberal, or somewhere in between) recognizes that he possesses the qualities that are most needed in an appellate judge. Given the urgent need to fill vacancies in the Ninth Circuit, I would strongly urge the Senate to swiftly confirm Paul. Very truly yours, Jeremy B. Rosen. ____ University of California, School of Law, Los Angeles, CA, January 30, 2012. Hon. Patrick J. Leahy, Chairman, Senate Judiciary Committee, Washington, DC. Hon. Charles E. Grassley, Ranking Member, Senate Judiciary Committee, Washington, DC. Dear Chairman Leahy and Senator Grassley: I am writing this to express my strong support for the nomination of Paul Watford to the United States Court of Appeals for the Ninth Circuit. I have long been extremely impressed by Paul, since I first met him almost 20 years ago, when my then-boss Judge Alex Kozinski (now Chief Judge) was interviewing him as a law clerk. As you know, Paul had a stellar academic career, graduating very near the top of his class at UCLA School of Law and then clerking for Judge Kozinski and Justice Ruth Bader Ginsburg. He has also earned tremendous respect as a practicing lawyer, both as a federal prosecutor and an appellate lawyer. He has all the qualities that an appellate judge ought to have: intellectual brilliance, thoughtfulness, fairness, collegiality, an ability to deal civilly and productively with colleagues of all ideological stripes, and a deep capacity for hard work. If confirmed, he'll make a superb judge. Let me turn then to the question of ideology. In the overwhelming majority of cases that an appellate judge faces, the judge's legal philosophy is entirely or almost entirely irrelevant: The cases are either straightforward applications of clear and well-settled law, or, even if less than clear, involve highly technical legal questions that relate little to high-level philosophical debates. For those questions Paul's intellect, care, and legal craftsmanship will yield results that both liberals and conservatives should applaud. At the same time, there is no doubt that some small but important fraction of appellate cases consists of matters on which liberal judges and conservative judges will reach different results. That is inevitable: Law is not mathematics. Some legal questions are unsettled and not answered by statutory or constitutional text, or binding precedent. And in the absence of a clear and obvious legal answer, different judges reach different results based partly on their philosophies. Paul is a moderate liberal; I am a moderate libertarianish conservative; I therefore expect that, if he is confirmed, there would be some future decisions of his with which I will disagree. Yet our current President is President Obama, not Senator McCain. The American people spoke, and they elected someone who will not nominate judges with whom Republicans like me will always agree. So, respecting as I do the voters' choice in 2008 (though it was not my choice), I do not ask: Is this the sort of judge who shares my legal philosophy? Rather, I ask: Would he be the sort of judge whom I could respect intellectually? Would he be the sort of judge whom I could trust to be fair-minded and respectful of the legal rules that he is obligated to follow? Is he likely to be more on the moderate side rather than solidly on the left? For Paul, my answer to those questions is a definite yes. When a Democratic President nominates a judge who is indeed well on the left, Republicans like me face a difficult question: Should we resist the nomination, or should we accept it so long as the judge appears to be excellent on the nonideological factors? I have not fully thought through this question. But for the reasons I mentioned, that's a question that doesn't even come up for me in this instance. Paul is the sort of moderate Democratic nominee that moderates and conservatives, as well as liberals, should solidly support. Sincerely, Eugene Volokh. ____ Henry Weissmann, Los Angeles, CA, May 3, 2012. Re Nomination of Paul Watford. Hon. Harry Reid, Majority Leader, U.S. Senate, Hart Senate Office Building, Washington, DC. Hon. Patrick J. Leahy, Chairman, U.S. Senate, Committee on the Judiciary, Russell Senate Office Building, Washington, DC. Hon. Mitch McConnell, Republican Leader, U.S. Senate, Russell Senate Office Building, Washington, DC. Hon. Chuck Grassley, Ranking Member, U.S. Senate, Committee on the Judiciary, Hart Senate Office Building, Washington, DC. Dear Senators Reid, McConnell, Leahy and Grassley: I write in support of the nomination of Paul Watford to the United States Court of Appeals for the Ninth Circuit. I am a partner of Mr. Watford's at Munger, Tolles & Olson LLP. Prior to joining Munger, Tolles, I had the honor of serving as a law clerk to Justice Antonin Scalia of the Supreme Court and Judge James L. Buckley of the United States Court of Appeals for the D.C. Circuit. I am also a past President of the Los Angeles Chapter of the Federalist Society and serve on the Executive Committee of its national Telecommunications Practice Group. Although I do not agree with President Obama on many issues, I completely agree with his nomination of Mr. Watford. I have had the pleasure of working with Mr. Watford for over a decade in a variety of appellate matters involving large corporate clients. He is brilliant, developing effective arguments on matters of first impression. He [[Page 7504]] is efficient, producing top-quality work product quickly. He is respectful of his colleagues, his opponents, and the courts. Above all, he is a careful lawyer, applying precedent and common sense in a way that leads to moderate arguments. I have never seen any hint of politics in Mr. Watford's lawyering. Mr. Watford is highly regarded not only within our firm, but also in the legal community at large. Lawyers from private practice, his former colleagues in the U.S. Attorney's office, clients, academics, and many others-- including those from a wide range of political perspectives-- hold Mr. Watford in the highest esteem. I have every confidence that, as a judge, Mr. Watford would apply the law faithfully, objectively, and even-handedly. Mr. Watford would be an outstanding addition to the Ninth Circuit, and I support his nomination enthusiastically. Sincerely, Henry Weissmann. Mr. LEAHY. Mr. President, I ask unanimous consent that following the vote on the Watford nomination, the motion to reconsider be considered made and laid upon the table, with no intervening action or debate, that no further motions be in order to the nomination; that any statements related to the nomination be printed in the Record; that the President be immediately notified of the Senate's action, and that the Senate then resume legislative session. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Mr. LEAHY. Mr. President, I suggest the absence of a quorum, but I ask unanimous consent that the time between now and the vote at 5:30 be evenly divided. The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. COONS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. FDA Reauthorization Mr. COONS. Mr. President, I rise today in strong support of the bipartisan legislation to which the Senate will move to reauthorize the Food and Drug Administration user fees and critical programs to ensure Americans have access to safe and effective medications. Most of us do not think about the FDA on a regular basis. In fact, we rarely think about where our medicines come from, the scientists who invented them, the investments required to develop them, and the innovative, cutting-edge new treatments that are essential to keeping Americans healthy and safe or the regulators who make sure these pharmaceuticals, devices, and treatments work as they are supposed to. But when the moment comes that we face a health crisis and our doctors prescribe us essential medication, we want those pharmaceuticals available right away, and we want them to work as promised. One example of the many constituents who have contacted me about PDUFA is Virginia from Newark, DE, who recently sent a letter to my office. She volunteers with the National Brain Tumor Society and is concerned that without reauthorization of this legislation, safe and effective brain tumor therapies will be slower to be developed and made available to patients who need them. She wrote: It has been too long since any new therapies have become available for brain tumor patients that significantly extend survival. Anyone can be diagnosed with a brain tumor, and they are the second leading cause of cancer death in children under twenty. I say to the Presiding Officer, I am sure, like me, in your office, as a Senator from Connecticut, you regularly are visited by folks from around the country or around your State who are deeply concerned about continuing medical progress, discovery and development of the lifesaving treatments Americans have developed over the last two decades. It is my hope that the Senate will continue to clear the way. That is why we need this legislation. This reauthorization helps take care of innovation and safety so consumers and patients do not have to worry. It permanently authorizes programs that have helped make medicines safer for millions of children. It upgrades the FDA's tools to police the global supply chain and helps reduce the risk of drug shortages of the kind we saw recently, which Senator Klobuchar just spoke to earlier this afternoon, when supplies of critical cancer medications ran low. This is a matter of great urgency. The current FDA authorization will expire in a few short months. If we allow that to happen, we put at risk patient access to new medications as well as America's ongoing global leadership in biomedical innovation. Worst of all, failing to reauthorize would cost us thousands of jobs, and more pink slips is not what we need as our economic recovery gains strength. If new drug and medical device user fee agreements are not authorized before the current ones expire, the FDA must lay off nearly 2,000 employees. Because that does not happen overnight, layoff notices would start going out as early as July. The good news is we are moving forward with a timely reauthorization to save those jobs, save America's leading role in innovation, and ensure that the FDA continues to make progress. This is an all-too-rare display of bipartisanship across both Chambers. This legislation was unanimously approved by the House committee and found strong bipartisan support in the HELP Committee here in the Senate, ably led by Chairman Harkin and Ranking Member Enzi. There is a reason Members of the House and Senate of both parties are in such strong support of this reauthorization. The American economy has always been driven by innovation, and some of our most extraordinary innovations have come in the biomedical sector. In the years ahead, it is my faith, my hope, that we will see more and more narrowly targeted drugs created specifically for certain kinds of patients or very specific diseases. In the lifecycle of innovation, this is different than the last few decades when blockbuster medications were used and then developed on a very wide scale across the country or world. But it is an equally impressive feat of innovation that lies in the years ahead, and one that is only possible because of amazing advances in technology, the mapping of the human genome, the disassociation across many labs and small startup businesses, of the machinery, the mechanics, and the capabilities to innovate in the discovery and development of pharmaceuticals. We have to continue to support and encourage this kind of innovation in order to stay competitive in the global economy. At the moment, the FDA continues to keep pace with many of our global competitors in terms of their review time for new drug applications, but we are at real risk of falling behind. One recent example to which I paid close attention, the blood- thinning drug Brilinta, was manufactured by a company--was developed and discovered by a company--in my home State of Delaware, AstraZeneca. It was finally approved by the FDA in July 2011. But prior to that approval, 33 other countries, including the EU and Canada, had already approved the drug months or years before. This delay in review and approval in some certain cases can be bad for patients who rely on these medications and bad for the competitiveness of the United States. So I am glad this reauthorization clears away some of the conflict in the underbrush and will reauthorize and strengthen and streamline the review timeline for new pharmaceuticals. Not only will this provide the kind of predictability and certainty any business needs to succeed, but it helps make sure the FDA's essential regulatory process keeps pace with scientific innovation. In my home State of Delaware, there are more than 20,000 jobs that directly rely on biomedical research and innovation. But around the country there are more than 4 million indirectly and more than 675,000 jobs that directly benefit from this area. Frankly, it is also one of our strongest export areas of growth for the long term. So we need this reauthorization now. In my view, moving forward with this legislation also means finding the [[Page 7505]] fine balance between speed and safety, between getting treatments to patients without delay, and being certain these new drugs will be effective and safe. In a recent editorial, the Washington Post noted: This time around, the balance appears to be tilting slightly toward faster approval. That's good. I agree. Safety is paramount, but with today's technology and the FDA's century of experience, I think we can move more quickly to put innovative treatments in the hands of patients who desperately need them. The Prescription Drug User Fee Act originally passed by Congress in 1992 and reauthorized every 5 years since is what allows the FDA to collect user fees from pharmaceutical manufacturers and provide a stable, consistent funding stream that has steadily decreased drug review times by nearly 60 percent since it was first enacted. It has provided access on a faster and more predictable timeframe to over 1,500 new medicines since it was first enacted and deserves to be reauthorized to help expedite approval for breakthrough medications to treat rare and widely experienced diseases. In closing, the FDA is the oldest comprehensive consumer protection agency in the Federal Government. Its relevance has not decreased with age; in fact, quite the opposite. As our researchers and scientists have made major breakthroughs in care and technologies for treatment, the FDA has continued to serve as the conduit between innovators, physicians, and patients. We face tremendous hurdles in treating devastating diseases of all kinds. In addition to ancient puzzles such as cancer that continue to elude us, there are new challenges cropping up every day. One example would be the need for new drugs to treat increasing cases of bacterial infections, greatly resistant to conventional antibiotics, so-called superbugs. That is why I have joined with the Presiding Officer and Senator Corker as a cosponsor of the GAIN Act, to spur development of these specific types of drugs. This is one of many examples of the kinds of innovations that will solve the medical mysteries of the 21st century, ease the suffering of millions of Americans, secure high-wage and high-skilled jobs in the biomedical research field, and ensure our competitiveness globally. So let's continue working in the bipartisan spirit that has carried this reauthorization thus far and proceed to pass it without delay. I yield the floor. The PRESIDING OFFICER. The Senator from California. Mrs. FEINSTEIN. Mr. President, at 5:30 we will be voting on the nomination of Paul Watford for the Ninth Circuit Court of Appeals. I would like to say a few words about him at this time. But before I do, I think Members might want to consider the fact that the Ninth Circuit is by far the busiest U.S. circuit in the Nation. It has over 1,400 appeals pending per three-judge panel. That is the most of any circuit. It is over two times the average of other circuits combined. The Judicial Conference of the United States has declared each Ninth Circuit vacancy a ``judicial emergency.'' So today we are, in fact, filling one of the seats which is a judicial emergency. The candidate is Paul Watford, a Ninth Circuit nominee with stellar credentials and support across the political spectrum. I am delighted that cloture was vitiated so the vote will be directly on his nomination, and it is anticipated that he will be confirmed without controversy. Mr. Watford earned his bachelor's degree from the University of California Berkeley in 1989 and his law degree from UCLA in 1994 where he was editor of the UCLA Law Review and graduated Order of the Coif. After finishing law school, Mr. Watford clerked for Ninth Circuit Judge Alex Kozinski, an appointee of President Reagan's. He then clerked for Justice Ruth Bader Ginsburg on the U.S. Supreme Court. Following his two clerkships, he spent a year in private practice at the prestigious firm of Munger, Tolles, and Olson and then moved into public service as an assistant U.S. attorney in Los Angeles in 1997. There he prosecuted a broad array of crimes, including bank robberies, firearms offenses, immigration violations, alien smuggling, and various types of fraud. He later served in the major fraud section of the criminal division, focusing on white collar crime. Among his many cases, he prosecuted the first case of an online auction fraud on eBay in California. During his tenure as a Federal prosecutor, Mr. Watford appeared in court frequently, typically several times per week. He tried seven cases to verdict, and he worked on numerous Ninth Circuit appeals, arguing four of them. In one such case, a cocaine dealer had already convinced the State court that a drug seizure had violated his fourth amendment rights. Mr. Watford prevailed on appeal in forcing the dealer to forfeit over $100,000 in drug trafficking proceeds. In 2000, Watford rejoined Munger, Tolles, and Olson where he is currently a partner. This is one of the premiere appellate law firms in California. Paul Watford specializes in appellate litigation at the firm. Like most major law firms, Munger's docket is dominated by business litigation. Thus the focus of Mr. Watford's work has been appellate litigation for business clients. For example, he represented Verizon Communications in a consumer class action case. He represented the technology company, Rambus, in two complex patent infringement cases. He also represented Shell Oil in an antitrust case. Mr. Watford and his colleagues at Munger won a 9-to-0 reversal on behalf of Shell Oil in the Supreme Court. He has also represented numerous other American businesses, such as Coca-Cola and Berkshire Hathaway, as well as business executives and municipal government agencies. In total he has argued 21 cases in the appellate courts, and he has appeared as counsel in over 20 cases in the U.S. Supreme Court. So he is well equipped. His extensive experience as a prosecutor and private practitioner, including his specialty in appellate work, will serve the Ninth Circuit extremely well. Mr. Watford is also regarded by attorneys on both sides of the aisle, including conservative Republicans who praise him for his keen intellect and fair-minded approach to the law. He has been endorsed by two former presidents of the Los Angeles chapter of the Federalist Society. One, Jeremy Rosen, says Watford is, ``open-minded and fair,'' and a ``brilliant person and a gifted appellate lawyer.'' The other, Henry Weissman, says that although he ``do[es] not agree with President Obama on issues, [he] completely agree[s] with his nomination of Paul Watford.'' So that is a good thing. Daniel Collins, who clerked for Justice Scalia and served as an Associate Deputy Attorney General in the Bush Justice Department, says Watford ``embodies the definition of judicial temperament--very level- headed and even keeled.'' Thirty-two Supreme Court clerks from the term when Watford clerked for Justice Ginsburg have written in support of the nomination. These include clerks from every Justice on the Court at that time, including all of Justice Scalia's clerks from that year, as well as several from Justices Rehnquist, Thomas, and Kennedy. I find that quite amazing. A group of over 40 former clerks for Judge Kozinski have also written in support of Watford's nomination. This group includes numerous individuals with unquestionable conservative credentials. Many clerked for Justices Rehnquist, Scalia, Alito, and Kennedy. Several, such as Steve Engel, Charles Duggan, and Ted Ullyot also served in the Bush administration, including in the White House Counsel's Office and the leadership of the Justice Department. Watford also has strong support in the business community. The general counsels of leading American corporations, including Google, Mattel, Verizon, and CIRCOR, have also written in support of Mr. Watford. They say Watford ``is exactly the kind of individual that any plaintiff or defendant--person, business, or government--would welcome deciding their case.'' [[Page 7506]] In short, Paul Watford is truly both an excellent and distinguished choice for the Ninth Circuit. He is extremely bright. He is experienced at the trial and appellate level and in both civil and criminal cases. He is uniquely respected for his intellect and judgment, and he has broad support across the political spectrum and in the business community. Maybe this is the reason cloture was vitiated. He is not filibusterable. I hope people see the fine and keen intellect this man is, and he should have a very large vote. If confirmed, he would be one of just two African-American active judges on the Ninth Circuit. The Ninth Circuit, by far the busiest circuit in the Nation, urgently needs him to begin his service. As I said the Ninth Circuit is a judicial emergency. This will fill one vacancy. So I urge my colleagues to vote at 5:30, in 15 minutes, for Mr. Watford's nomination. I yield the floor. The PRESIDING OFFICER. The Senator from Iowa. Mr. GRASSLEY. Mr. President, today we are going to turn to a nomination that the Senator from California has just referred to, Paul Watford, to be circuit judge for the Ninth Circuit. I am disappointed that the majority leader has brought this nomination to the floor. The reason I say that is there are at least 10 nominations on the Executive Calendar that might fall into the category of consensus nominees. Six nominees on the calendar had significant opposition in committee and clearly are not consensus nominees. Mr. Watford falls into this category of not being a consensus nominee. I will oppose Mr. Watford's nomination and ask my colleagues to oppose the nomination as well. My opposition to this nomination is based upon substantive concerns that I have regarding Mr. Watford's views on both immigration and the death penalty. Mr. Watford partnered with the American Civil Liberties Union and the National Immigration Law Center in two cases to oppose Arizona's 2010 immigration bill. In the first case, Friendly House, a class action lawsuit, Mr. Watford served as cocounsel for most of the plaintiffs, including the class action representative Friendly House. The Friendly House complaint attacks the Arizona law on a variety of grounds. He argued the law violates the Supremacy clause; that it violates the Equal Protection clause by promoting racial profiling; that it violates the first amendment by chilling the speech of non- English speakers; that it violates the fourth amendment; and that it violates due process by inviting racial profiling and employing vague definitions of ``public offense'' and other statutory terms. In the second case, United States v. Arizona, Mr. Watford served as cocounsel on an amicus brief filed by the Friendly House plaintiffs. This brief covers most of the arguments raised in the Friendly House complaint. But in addition, it asserts that Arizona ``fails to account for the complexities and realities of Federal immigration law'' because individuals lacking immigration registration documents are put at risk of ``constant and repeated criminal prosecution.'' I do not believe an attorney should be held accountable for the legal positions he advocates on behalf of a client. Of course, there are some exceptions to that general rule; for instance, if the legal positions are far outside the mainstream of legal theory, are frivolous or indicate an unacceptable level of professional competence. However, in this case, Mr. Watford has not simply argued on behalf of a client, he adopted those legal theories as his very own. On July 14, 2010, Mr. Watford gave a speech analyzing the constitutionality of the Arizona law. His speech concentrated on ``why S. 1070 is unconstitutional,'' and he recapped many of the arguments he made in the Friendly House case. Moreover, despite the fact that he discussed his views on immigration publicly, he nonetheless declined to answer many of my questions during his hearing before the Judiciary Committee. For instance, I asked about an argument in his brief that the Arizona statute prohibiting illegal aliens from soliciting work somehow violated the first amendment. The nominee responded that it would be inappropriate for him to comment on questions related to whether illegal immigrants were entitled to constitutional protections other than those contained in the fifth, sixth and fourteenth amendments. Again, remember, he had already given a speech on this topic, so I was disappointed that he would not share his views on these important topics. With regard to the death penalty, Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups that opposed Kentucky's three-drug lethal injection protocol. In its plurality opinion, the Court rejected the arguments raised in the brief. Ultimately, Kentucky's three-drug protocol was upheld on a 7-to-2 vote in the Supreme Court. At the hearing we had for Mr. Watford, in following up questions, Mr. Watford gave the standard response that he would follow Supreme Court precedent regarding the death penalty. Yet it is very curious to me that he would go out of his way to provide his services to a case that would undermine the death penalty. Furthermore, his concession that he would give consideration to foreign or international law in interpreting the meaning of the Cruel and Unusual Punishment clause makes me wonder how he would approach this issue. I have other concerns based on positions this nominee has taken in his legal advocacy, as well as some of his presentations. I am generally willing to give the President's nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined. But I don't think this nominee meets these requirements. Finally, Republicans continue to be accused of obstruction and delay when it comes to judicial nominations. This comes even as we have now confirmed 145 of this President's district and circuit court nominees. That, of course, is during a period when we also confirmed two Justices to the Supreme Court. The last President who had two Supreme Court nominees had only 120 confirmations. So this argument of obstruction, of delay, and of unfairness doesn't hold up. I 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 very important examples. President 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 by a unanimous vote. 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 that vote failed, the nominee withdrew. If confirmed, Mr. Watford will be the fourth nominee of President Obama nominated to serve on the ninth circuit. Those four confirmations took an average of about 8 months from the date of nomination. For all of President Obama's circuit nominees, the average time for nomination to confirmation is about 242 days. For President Bush's circuit nominees, the average wait for confirmation was 350 days. Given this history that I have spelled out, one might wonder then why President Bush and his nominees were treated differently and so much more unfairly than President Obama's nominees. Mr. Watford received his B.A. from University of California, Berkeley in 1989 and his J.D. from the University of California, Los Angeles (UCLA) School of Law in 1994. Upon graduation, he clerked for Judge Alex Kozinski on the [[Page 7507]] Ninth Circuit and then for Justice Ginsburg on the Supreme Court. In 1996, he began working as an associate in the Litigation Department at the Los Angeles law firm of Munger, Tolles & Olsen. From 1997-2000, Mr. Watford was an Assistant United States Attorney in the U.S. Attorney's Office for the Central District of California, in Los Angeles, handling a variety of criminal prosecutions, such as immigration, narcotics, firearms trafficking, bank robbery, computer fraud, mail and wire fraud, and securities fraud. In 2000, Mr. Watford returned to private practice as an associate in the appellate practice group at Sidley & Austin's Los Angeles office. In 2001, he rejoined Munger, Tolles & Olsen as an associate, becoming a partner there in 2003. His practice focuses primarily on appellate litigation, specifically business and commercial disputes. Mr. Watford has also taught a course on Judicial Opinion Writing at the University of Southern California's Gould School of Law for three semesters (2007, 2008, and 2009). The ABA Standing Committee on the Federal Judiciary unanimously rated him as Well Qualified for this position. I yield the floor and suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The bill clerk proceeded to call the roll. Mr. REID. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Unanimous Consent Agreement--S. 3187 Mr. REID. Mr. President, I ask unanimous consent that the cloture vote on the motion to proceed to Calendar No. 400, S. 3187, the Food and Drug Administration Safety and Innovation Act, be vitiated; that at 2:15 tomorrow, Tuesday, May 22, the motion to proceed be agreed to; that the Harkin-Enzi substitute amendment, which is at the desk, be agreed to, and the bill, as amended by the Harkin-Enzi substitute, be considered original text for the purposes of further amendment, and that the majority leader be recognized at that time. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Mr. REID. Mr. President, based on this, we will have a vote that should start in 5 minutes, which will be the only vote of the day. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The bill clerk proceeded to call the role. Mr. REID. 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. REID. Mr. President, I yield back all time and ask unanimous consent that the vote start now. The PRESIDING OFFICER. Without objection, it is so ordered. 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 question is, will the Senate advise and consent to the nomination of Paul J. Watford, of California, to be United States Circuit Judge for the Ninth Circuit. The clerk will call the roll. The bill clerk called the roll. Mr. DURBIN. I announce that the Senator from Missouri (Mrs. McCaskill) is necessarily absent. Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), the Senator from Nevada (Mr. Heller), the Senator from Illinois (Mr. Kirk), and the Senator from Louisiana (Mr. Vitter). 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 61, nays 34, as follows: [Rollcall Vote No. 104 Ex.] YEAS--61 Akaka Alexander Baucus Begich Bennet Bingaman Blumenthal Boxer Brown (MA) Brown (OH) Cantwell Cardin Carper Casey Collins Conrad Coons Durbin Feinstein Franken Gillibrand Graham Hagan Harkin Inouye Johnson (SD) Kerry Klobuchar Kohl Kyl Landrieu Lautenberg Leahy Levin Lieberman Lugar Manchin McCain Menendez Merkley Mikulski Murkowski Murray Nelson (NE) Nelson (FL) Pryor Reed Reid Rockefeller Sanders Schumer Shaheen Snowe Stabenow Tester Udall (CO) Udall (NM) Warner Webb Whitehouse Wyden NAYS--34 Ayotte Barrasso Blunt Boozman Burr Chambliss Coats Coburn Cochran Corker Cornyn Crapo Enzi Grassley Hatch Hoeven Hutchison Inhofe Isakson Johanns Johnson (WI) Lee McConnell Moran Paul Portman Risch Roberts Rubio Sessions Shelby Thune Toomey Wicker NOT VOTING--5 DeMint Heller Kirk McCaskill Vitter The nomination was confirmed. The PRESIDING OFFICER. Under the previous order, the motions to reconsider are considered made and laid upon the table, and the President will be immediately notified of the Senate's action. ____________________