[Congressional Record (Bound Edition), Volume 159 (2013), Part 9]
[Senate]
[Pages 13198-13201]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF VALERIE E. CAPRONI TO BE UNITED STATES DISTRICT JUDGE FOR 
                   THE SOUTHERN DISTRICT OF NEW YORK

                                 ______
                                 

 NOMINATION OF VERNON S. BRODERICK TO BE UNITED STATES DISTRICT JUDGE 
                 FOR THE SOUTHERN DISTRICT OF NEW YORK

  The PRESIDING OFFICER (Mr. King). Under the previous order, the 
Senate will proceed to executive session to consider the following 
nominations, which the clerk will report.
  The assistant legislative clerk read the nominations of Valerie E. 
Caproni, of the District of Columbia, to be United States District 
Judge for the Southern District of New York, and Vernon S. Broderick, 
of New York, to be United States District Judge for the Southern 
District of New York.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes for debate equally divided in the usual form.
  The Senator from New Jersey.
  Mr. MENENDEZ. I ask that all time during this debate on the Executive 
Calendar be equally divided on both sides and any quorum call that is 
called be equally divided as well in terms of charging time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, today we will be voting on just 2 of the 11 
district and circuit nominees left pending on the Senate floor prior to 
the August recess. Ten of these nominees had been reported by voice 
vote, and there was no good reason we could not have confirmed them 
then and allowed them to get to work on behalf of the American people. 
I hope that Senate Republicans will not seek to drag out the nominees 
who will be left pending on the floor after today, as they did for the 
nominations left pending at the end of last year. It took us until May 
of this year to confirm 9 of the 10 circuit and district nominations 
that were ready for votes last year, and it will likely take us another 
month or two to work our way through this new backlog.
  One effect of this obstruction is that for the first time in nearly 2 
years, our Federal district courts are again facing what the 
nonpartisan Congressional Research Service calls ``historically high'' 
vacancies. This could have been avoided if Senate Republicans had 
simply followed Senate tradition and allowed votes on the nine 
consensus district nominees before the recess.
  The Republicans' effort to obstruct and delay the confirmations of 
nominees means that over the course of President Obama's administration 
the number of judicial vacancies nearly doubled. In January 2009, there 
were 53 Federal district and appellate court vacancies. Today, there 
are 94 Federal district and appellate court vacancies--37 of which have 
been designated as judicial emergency vacancies by the nonpartisan 
Administrative Office of the U.S. Courts. This is unacceptable. We have 
the nominees we need to make progress, but we do not have the consent 
we need from Senate Republicans.
  Republicans have argued that we do not need to pick up the pace of 
confirming Federal judges, because we have confirmed more of President 
Obama's nominees than at the same point in 2005, the fifth year of 
George W. Bush's Presidency. The facts tell a different story. 
President Bush made just 5 new circuit and district nominations in 
2005, compared to 43 new circuit and district nominations by President 
Obama this year. With more nominees to consider, it only makes sense 
that we have held more hearings and confirmed more judges this year 
than in 2005.
  Today the Senate will vote on the nominations of Valerie Caproni and 
Vernon Broderick to fill vacancies in the Southern District of New 
York. Since the time of her nomination until today, the seat to which 
Ms. Caproni is nominated has been added to the list of judicial 
emergency vacancies by the nonpartisan Administrative Office of the 
Courts. Ms. Caproni is currently vice president and deputy general 
counsel for Northrop Grumman Corporation. She has served the public in 
various capacities, including as General Counsel of the Federal Bureau 
of Investigation from 2003 to 2011, as Regional Director of the 
Securities and Exchange Commission's Pacific Regional Office from 1998 
to 2001, and as a Federal prosecutor in the U.S. Attorney's Office for 
the Eastern District of New York from both 1985 to 1992 and 1998 to 
2001. During her tenure as a Federal prosecutor, she served as Chief of 
the Criminal Division, Chief of the Organized Crime & Racketeering 
Unit, and Chief of the Special Prosecutions Unit. Ms. Caproni also has 
extensive experience in private practice, having served as counsel in 
the New York office of Simpson, Thacher & Bartlett and as an associate 
at the law firm Cravath, Swaine & Moore. Following law school, Ms. 
Caproni clerked for the Honorable Phyllis Kravitch of the U.S. Court of 
Appeals for the Eleventh Circuit.
  Mr. Broderick has split his career between Weil, Gotshal & Manges 
LLP, where he is currently a partner and was previously counsel and an 
associate, and the U.S. Attorney's Office for the Southern District of 
New York, where he was an assistant U.S. attorney. A graduate of Yale 
University and Harvard Law School, Mr. Broderick has extensive 
experience in Federal court. He has also tried 11 jury cases to 
verdict. Since he was appointed in 2003 by Mayor Bloomberg, Mr. 
Broderick has served on the Commission to Combat Police Corruption.
  Both nominees have the support of their home State Senators, Senator 
Schumer and Senator Gillibrand. Both nominees were also unanimously 
rated ``well qualified'' by the nonpartisan ABA Standing Committee on 
the Federal Judiciary, its highest rating. They were reported by the 
Judiciary Committee by voice vote nearly 3 months ago.
  I hope the Senate moves to confirm these nominees, but reducing 
Federal judicial vacancies from 94 to 92 is not enough. It is well past 
time for the Senate to get serious about giving our Federal courts the 
resources they need to provide justice for the American people. In July 
the Judiciary Committee's Subcommittee on Bankruptcy and the Courts 
held a hearing on the impact of sequestration that highlighted the 
damage that these senseless cuts are doing to our justice system. 
Tomorrow, Senator Coons will chair another hearing in that subcommittee 
to evaluate the judgeship needs of Federal courts across the country 
and hear testimony on the Coons-Leahy Federal Judgeship Act of 2013, 
which would implement the judicial conference's recommendations for 
desperately needed new judgeships. I hope that Senators from both sides 
of the aisle will support this bill, which is based on what judges 
across the Nation believe they need to administer justice effectively. 
Addressing the resources of a coequal branch of our government should 
not be politicized. We need to end sequestration and act responsibly in 
addressing the staffing needs of our justice system so that it can 
continue to serve the American people and be a model for other 
countries.
  Mr. GRASSLEY. Mr. President, I will not support the nomination of 
Valerie

[[Page 13199]]

E. Caproni to be U.S. District Judge for the Southern District of New 
York. However, I expect that she will likely be confirmed, as will Mr. 
Broderick. These will be the 30th and 31st judicial confirmations this 
year. With today's confirmations, the Senate will have confirmed 202 
lower court nominees; we have defeated 2. That is 202-2 for President 
Obama. That is an outstanding record. That is a success rate of 99 
percent. I think we have had a pretty outstanding record this Congress.
  And we have been doing that at a fast pace. During the last Congress 
we confirmed more judges than any Congress since the 103rd Congress, 
which was 1993-94.
  So far this year, the first of President Obama's second term, we have 
already confirmed more judges than were confirmed in the entire first 
year of President Bush's second term.
  At a similar stage in President Bush's second term, only 10 judicial 
nominees had been confirmed. So we are now at a 31 to 10 comparison, 
with President Obama clearly ahead of where President Bush was at a 
similar time frame.
  And, as I said, we have already confirmed more nominees this year--
31--than we did during the entirety of 2005, the first year of 
President Bush's second term, when 21 lower court judges were 
confirmed.
  So I just wanted to set the record straight--again--before we vote on 
these nominations.
  I also want to explain why I oppose the confirmation of Ms. Caproni. 
From 2003 to 2011, she served as the General Counsel of the Federal 
Bureau of Investigation. During that time, she was involved in the 
national security letters--NSL--program at the FBI. This program was 
the subject of a report by the Office of Inspector General--OIG--within 
the Department of Justice--DOJ, published in 2010.
  In that report, the FBI was criticized for its role in the potential 
abuse by the FBI's use of national security letters. The report also 
detailed her office's knowledge of the use of exigent letters to short-
circuit the NSL process. The IG also found problems regarding the 
inaccurate reporting of NSLs.
  When the Committee reported out her nomination earlier this year, I 
voiced my concern over the fact that I had made a request to the FBI 
over 6 years ago, asking for documents regarding exigent letters.
  In March 2007, Chairman Leahy and I requested copies of unclassified 
emails related to the use of national security letters issued by the 
FBI. I only received a few of these emails, and they were heavily 
redacted, so in 2008 I asked for the rest.
  Ms. Caproni was general counsel of the FBI at the time and told me 
that the documents I was waiting for were on her desk, awaiting her 
review. Well, in 2013 as we approached her hearing, I still had not 
received those documents.
  I asked Ms. Caproni about this in her hearing and she had no specific 
recollection of this request. So, I asked her again in writing. This 
led to a set of FOIA documents being produced, which are a poor 
substitute for properly answering a Committee request. It also raises 
further questions as to why it took 6 years and why Ms. Caproni told me 
years ago that she was working on responding to our request.
  I subsequently followed up with the FBI with specific requests 
regarding Ms. Caproni's involvement in the matter. The FBI has not 
responded to my requests.
  I also made requests from the DOJ Inspector General. While the IG did 
make some materials available to me, there are outstanding requests to 
which they have not responded.
  At issue is the correspondence between Ms. Caproni and OIG about the 
OIG's draft report. These are not ``internal documents'' as the IG has 
claimed which relate to the internal deliberative process of the OIG. 
They are not ``internal'' communications because the Inspector 
General's office is supposed to be separate and independent from the 
FBI, and Ms. Caproni was the FBI's counsel.
  They are, however, a critical component required both for oversight 
of the underlying program as well as to ensure that the back-and-forth 
between an independent IG and the agency is transparent and arms-
length.
  At the time we reported her nomination out of Committee, I stated 
that while I would not hold her nomination in Committee, I reserved my 
right to do so on the Senate floor. So now, even though I have 
consented to the vote going forward, I will not support the nomination.
  Ms. Caproni received her B.A. at Tulane in 1976 and her J.D. from the 
University of Georgia School of Law in 1979. Upon graduation, she 
clerked for 1 year for the Honorable Phyllis Kravitch, United States 
Court of Appeals for the Eleventh Circuit. Following her clerkship, she 
entered private practice as a civil litigator for Cravath, Swaine & 
Moore focusing on defense work on behalf of large companies primarily 
with respect to libel, antitrust, and securities matters. She was in 
this position from 1980 to 1985.
  In 1985 Ms. Caproni became an Assistant U.S. Attorney where she 
prosecuted a number of narcotics and other criminal cases. In 1989, Ms. 
Caproni became the General Counsel of the Urban Development Corp--now 
Empire State Development. There her primary responsibility was to 
provide legal advice to the executives and directors of the 
corporation, focusing on administrative law, banking and bankruptcy 
law, environmental and land use, real estate, and products liability. 
She returned to the U.S. Attorney's Office in 1992 where she prosecuted 
criminal cases and became part of the administration of the Criminal 
Division. She served as Chief of the Criminal Division from 1994 to 
1998. In 1998 Ms. Caproni became the regional director of the SEC's 
Pacific Regional Office where she worked on enforcement of Federal 
securities laws.
  From 2001 to 2003, she returned to private practice at Simpson 
Thacher & Bartlett where she worked on white collar criminal defense. 
After this she became General Counsel of the FBI where her primary 
responsibility was to provide legal advice to executive management. She 
served there from 2003 to 2011.
  In 2011 Ms. Caproni was hired by Northrop Grumman to be vice 
president and deputy general counsel where she remains today. She is 
currently responsible for supervision of all litigation and internal 
investigations, specializing in civil litigation and investigations and 
setting strategy in cases and investigations that affect the 
corporation. The ABA Standing Committee on the Federal Judiciary gave 
her a unanimous ``Well Qualified'' rating.
  Vernon S. Broderick is also nominated to be U.S. District Judge for 
the Southern District of New York. Mr. Broderick received his B.A. from 
Yale University in 1985 and his J.D. from Harvard Law School in 1988. 
Upon graduation, he joined Weil, Gotshal & Manges as an associate. His 
practice there mainly focused on civil litigation, specifically large 
commercial disputes that involved breach of contract, products 
liability, patent and bankruptcy.
  In 1994, he joined the United States Attorney's Office, first in the 
General Crimes Unit, then in the Narcotics Unit and the Violent Gangs 
Unit. He was Chief of the Violent Gangs Unit from 1999-2002.
  Mr. Broderick rejoined Weil, Gotshal & Manges as a Counsel in 2002 
and was made a Partner in 2005. His practice focused on white collar 
criminal investigations and prosecutions, regulatory investigations and 
proceedings, and business litigation. The ABA Standing Committee on the 
Federal Judiciary gave him a unanimous ``Well Qualified'' rating.
  Mr. MENENDEZ. In view of the fact I don't see any Members at this 
point, 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.
  Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. GILLIBRAND. Mr. President, I rise to urge my colleagues on both 
sides of the aisle to support Valerie

[[Page 13200]]

Caproni for U.S. district judge for New York's Southern District. I 
know Ms. Caproni to be a woman with impeccable credentials, incredible 
intellect, and the kind of fair-minded judgment we need on the Federal 
bench.
  Ms. Caproni serves as vice president and general counsel for Northrop 
Grumman Corporation, where she leads all aspects of litigation. Ms. 
Caproni joined Northrop Grumman from her former position as general 
counsel to the FBI, a position Director Robert Mueller personally asked 
Ms. Caproni to serve in, in the wake of the horrific attacks of 
September 11. Ms. Caproni knows full well the task at hand for the FBI 
is never easy--from protecting America from terror and other attacks--a 
balance of defending our civil liberties and civil rights. But as she 
puts it:

       They always strive to do the right thing, and to maintain 
     as a loadstar fealty to the Constitution and the rule of law.

  That is what Ms. Caproni believes to her very core.
  Ms. Caproni also served in the Securities and Exchange Commission, 
where she enforced regulatory programs in the nine-State Pacific 
region. She and her staff strengthened cooperation between the SEC and 
the U.S. Attorney's Offices to crack down on financial fraud.
  Ms. Caproni also served as Chief of the Criminal Division for the 
U.S. Attorney's Office for the Eastern District of New York and in 
private practice at several top firms.
  Through her breadth of experience, her talent, her intellect, and her 
strong character, I know Ms. Caproni will be an outstanding jurist.
  I strongly believe this country needs more women such as she serving 
in the Federal Judiciary, an institution that I believe needs more 
exceptional women.
  I have no doubt that having Ms. Caproni serve in the Federal 
Judiciary will bring us closer to achieving that goal of a Federal 
judiciary that reflects our Nation.
  I was honored to recommend her for this position, and I urge all my 
colleagues to vote in support of her confirmation.
  I urge my colleagues to vote in favor of another outstanding New 
Yorker, Vernon Broderick, to also be a U.S. district judge for the 
Southern District of New York.
  Mr. Broderick served as an assistant U.S. attorney in the Southern 
District of New York, where he helped protect New Yorkers by 
prosecuting cases involving organized crime, international narcotics 
trafficking, and violent crimes. I urge the Senate to vote in full 
support of Mr. Broderick's nomination.
  Mr. DURBIN. Mr. President, I rise to speak about the nomination of 
Valerie Caproni to serve as a judge on the U.S. District Court for the 
Southern District of New York.
  When the Senate Judiciary Committee considered Ms. Caproni's 
nomination on June 13 and reported her nomination out of committee, I 
asked to be recorded as a ``pass'' on the vote. I did so because I 
wanted to meet in person with Ms. Caproni to discuss matters that she 
worked on when she served as general counsel of the Federal Bureau of 
Investigation from 2003 to 2011.
  During Ms. Caproni's tenure, the FBI adopted controversial new 
investigative policies and implemented sweeping new surveillance 
authorities granted by the USA PATRIOT Act.
  For example, revised Attorney General's guidelines for FBI 
investigations and the FBI's Domestic Investigations and Operations 
Guide allow the FBI to conduct ``assessments'' using intrusive 
surveillance techniques on innocent Americans with no indication of 
wrongdoing or other factual predicate. And while the Justice 
Department's ``Guidance Regarding the Use of Race by Federal Law 
Enforcement Agencies'' prohibits the use of profiling by Federal law 
enforcement in ``traditional law enforcement activities,'' this ban 
does not apply to profiling based on religion and national origin, and 
it does not apply to national security and border security 
investigations.
  The Justice Department's Inspector General concluded that the FBI was 
guilty of ``widespread and serious misuse'' of the National Security 
Letter authority when Ms. Caproni was general counsel. Also during Ms. 
Caproni's tenure, the FBI interpreted section 215 of the PATRIOT Act to 
permit the collection of noncontent ``metadata'' on every phone call of 
every American, including the numbers of both callers and the time and 
duration of the call.
  As general counsel, Ms. Caproni would have been the final word in the 
FBI on the legality of these and all other Bureau activities.
  As a result of my concerns about Ms. Caproni's involvement in these 
activities, I asked for her commitment, if confirmed, to recuse herself 
from matters on which she had been involved or provided legal advice 
while working for the FBI or on which her impartiality might reasonably 
be questioned.
  I met in my office with Ms. Caproni on June 25, and on July 8, Ms. 
Caproni sent me a letter memorializing her commitment to recuse herself 
from such matters. I appreciated receiving this letter, and I ask 
unanimous consent that the letter be printed in the Record.
  In light of our meeting and Ms. Caproni's commitments to me, I will 
not oppose her nomination to the district court.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     Washington, DC, July 8, 2013.
     Hon. Richard Durbin,
     Committee on the Judiciary, U.S. Senate, Washington, DC.
       Dear Senator Durbin: Thank you for the opportunity to meet 
     with you to discuss my nomination as a judge for the United 
     States District Court for the Southern District of New York. 
     It was a pleasure to meet with you and your staff.
       As I indicated in my Senate Judiciary Committee 
     Questionnaire, if confirmed, I would follow the Code of 
     Conduct for United States Judges, as well as any other 
     applicable ethics rules or federal statutes to resolve any 
     potential conflicts of interest. As I further stated, if I 
     had personal or supervisory involvement in a matter while at 
     the FBI or Northrop Grumman, I would not participate in it as 
     a judge.
       To follow up on our conversation and to be more specific, 
     as required by 28 U.S.C. Sec. 455, I would recuse myself from 
     any case in which my impartiality could reasonably be 
     questioned. I would certainly recuse myself if I were 
     presented with a case that would require me to rule on the 
     legality of a national security program as to which I 
     provided legal advice while I was a government employee, 
     unless there were controlling precedent already in place 
     regarding such a program. If such precedent did exist, I 
     nonetheless would consider recusal on a case-by-case basis, 
     carefully considering any arguments and consulting with 
     appropriate experts on judicial ethics and, if appropriate, 
     my colleagues. In those cases in which I did not recuse, I 
     would apply controlling law.
       Please let me know if you have any other questions or 
     matters you would like to discuss.
           Very truly yours,
                                                  Valerie Caproni.

  Mr. DURBIN. I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. 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. CARDIN. Mr. President, I yield back the time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the nomination 
of Valerie E. Caproni, of the District of Columbia, to be United States 
District Judge for the Southern District of New York?
  Mr. CARDIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Louisiana (Ms. Landrieu) 
and the Senator from Virginia (Mr. Warner) are necessarily absent.
  I further announce that if present and voting, the Senator from 
Louisiana (Ms. Landrieu) would vote ``yea.''

[[Page 13201]]


  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Tennessee (Mr. Alexander).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 73, nays 24, as follows:

                      [Rollcall Vote No. 201 Ex.]

                                YEAS--73

     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Chiesa
     Coats
     Collins
     Coons
     Corker
     Cornyn
     Donnelly
     Durbin
     Feinstein
     Fischer
     Flake
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Hirono
     Isakson
     Johanns
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Leahy
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Sessions
     Shaheen
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--24

     Ayotte
     Barrasso
     Blunt
     Boozman
     Coburn
     Cochran
     Crapo
     Cruz
     Enzi
     Grassley
     Heller
     Hoeven
     Inhofe
     Johnson (WI)
     Kirk
     Lee
     Merkley
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Scott
     Shelby

                             NOT VOTING--3

     Alexander
     Landrieu
     Warner
  The nomination was confirmed.


                      Vote on Vernon S. Broderick

  The PRESIDING OFFICER. If there is no further debate, the question 
is, Will the Senate advise and consent to the nomination of Vernon S. 
Broderick, of New York, to be United States District Judge for the 
Southern District of New York?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________