[Congressional Record (Bound Edition), Volume 160 (2014), Part 3]
[Senate]
[Pages 3116-3118]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JAMES MAXWELL MOODY, JR., TO BE UNITED STATES DISTRICT 
               JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS

  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 assistant legislative clerk read the nomination of James Maxwell 
Moody, Jr., of Arkansas, to be United States District Judge for the 
Eastern District of Arkansas.
  The PRESIDING OFFICER. Under the previous order, the time until 11:15 
a.m. will be equally divided and controlled in the usual form.
  Mr. THUNE. Mr. President, 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. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Judge William K. Sessions III

  Mr. LEAHY. Mr. President, for almost two decades Judge William 
Sessions has served as a Federal judge for the District of Vermont. 
Last month Judge Sessions announced he would take senior status later 
this year. I have worked with Senator Sanders, Representative Welch, 
and the Vermont Bar Association to convene a merit commission to find 
highly qualified candidates to serve on the Vermont District Court so I 
can then recommend them to the President.
  I know I speak on behalf of all Vermonters, no matter what their 
background, when I thank Judge Sessions for his years of distinguished 
public service and applaud him for agreeing to continue his judicial 
service even after he takes senior status this summer. Because of his 
continued dedication, Vermont will have one of the most highly 
respected and extraordinarily capable jurists on the Federal bench. I 
am proud to call Judge Sessions my friend, and I am honored to have 
cast my vote to confirm his nomination 18 years ago.
  I ask unanimous consent to have printed in the Record at the 
completion of my remarks a Rutland Herald article written by Brent 
Curtis that recounts his many accomplishments.
  There are only two authorized district judgeships in Vermont. We are 
the second smallest State in the Union. So, when President Clinton 
asked for my recommendation to fill a vacancy in my native State, I did 
not take this task lightly. I knew the people of Vermont deserved a 
judge with integrity, intelligence, and fairness, somebody whom anybody 
could go before--plaintiff or defendant, rich or poor, no matter their 
political background--and know they would have a fair hearing.
  During my time in private practice as a litigant and then as State's 
attorney in Vermont, I experienced firsthand the tradition of legal 
excellence we have in Vermont. I know many Vermont lawyers who are 
among the best this country has to offer, and Bill Sessions earned a 
reputation as one of the finest trial lawyers in the State. He was 
widely respected by prosecutors and defense lawyers, and by the 
plaintiff and defense bars alike. He was praised by those who had been 
his co-counsel, by State and Federal judges and prosecutors, and even 
by those who had been his opposing counsel in court. It was a privilege 
to submit his name to the White House for nomination to the U.S. 
District Court. At the time, I told President Clinton this would be one 
nomination he would never have to question his judgment in making 
because he would have somebody who would always serve the country so 
well. The Senate confirmed him unanimously on August 11, 1995.
  Judge Sessions received his B.A. from Middlebury College in 1969. 
Upon his graduation with honors from the George Washington University 
Law School in 1972, Judge Sessions served his country in the U.S. Army 
from 1972 to 1977 and in active service from 1972 to 1973. He also 
served as a law clerk to another friend of mine, Judge Hilton Dier of 
the Addison County District Court. Before his service on the Federal 
bench, Judge Sessions contributed to his community as an adjunct 
professor at Vermont Law School; in private practice; as the executive 
director of the Addison County Youth Services Bureau; and as a public 
defender in Addison County, VT.
  During his years of service on the Federal bench, Judge Sessions has 
worked tirelessly to ensure that all those who come before him are 
treated fairly and with dignity. He is a judge who has taken seriously 
his commitment to both justice and the American people. He served for 
many years as a member of the Judicial Conference, composed of the 
leaders of the Federal judiciary.
  Judge Sessions also served for a decade on the U.S. Sentencing 
Commission, eventually serving as its Chairman. Three Presidents, both 
Democratic and Republican, nominated him to this Commission, and the 
Senate confirmed him unanimously each time. As a commissioner, Judge 
Sessions made deeply significant contributions to American sentencing 
policy. He played an important role in the reduction of the sentencing 
disparity for crack and powder cocaine offenses. He has done vital work 
to improve the Federal Sentencing Guidelines. This was especially 
important following a number of Supreme Court cases that gave judges 
more discretion in the sentences they impose. Even after his time on 
the Sentencing Commission, Judge Sessions continued to work for better 
sentencing policy, publishing an article in a journal of the University 
of Virginia School of Law that explained how the three branches of 
government could work together to improve sentencing in America.
  Judge Sessions has not forgotten what it is to be a Vermonter. He 
still finds time on weekends to be at farmers markets around Vermont. 
He is a

[[Page 3117]]

familiar face at the booth for Blue Ledge Farm, a small Vermont dairy 
started by his daughter, Hannah, and son-in-law, Greg. I think of a 
picture of him holding a grandchild in one hand and making change for 
one of the customers with the other.
  He is one of our country's most respected jurists. He is a lawyer's 
lawyer and a judge's judge. Marcelle and I think of him and Abi, his 
wife, as dear personal friends.
  Our justice system has benefited a great deal from Judge Sessions' 
years of service. I thank Judge Sessions for all he has done as a 
Federal judge. I thank him for continuing to serve as a model jurist.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Rutland Herald, Feb. 16, 2014]

            Sessions Reflects on Years On and Off the Bench

                           (By Brent Curtis)

       U.S. District Judge William K. Sessions III will shift to 
     senior status.
       Long before he was making decisions in a courtroom, federal 
     Judge William Sessions III was working to keep people out of 
     them.
       With only months remaining before he shifts to senior 
     status in June, Sessions, who turned 67 this month, can look 
     back over two decades of rulings that carried both 
     constitutional and criminal ramifications.
       But before he was tapped by President Bill Clinton to serve 
     as a federal judge in Vermont in 1995, and before he began a 
     career as a trial lawyer and civil rights practitioner in the 
     1970s, Sessions was a teacher and an advocate to troubled 
     youth and prison inmates.
       After earning a bachelor's degree from Middlebury College 
     in 1969, Sessions went to Washington, D.C., to attend the 
     George Washington University Law School.
       Before his legal studies began, he volunteered to be a 
     reading and math teacher to inmates in the Washington, D.C., 
     prison system.
       ``It was a profound experience for me,'' Sessions said in 
     an interview. ``I was nervous and scared but I learned how to 
     relate with these guys and I learned and loved their stories, 
     and decided at that point I wanted to work with kids and 
     young people.''
       He added, ``I had this unbelievably moving experience and 
     then the question was `How do I get involved in helping young 
     people so they don't end up in places like prison?'''
       His initial work toward that goal was to open a youth 
     center for delinquent and troubled kids in Middlebury. But 
     when a job as a public defender opened up in the mid 1970s, 
     Sessions said he seized the opportunity and spent the next 
     two decades blending his humanitarian and legal passions.


                             Focused on law

       With that kind of background, the role of a judge--whose 
     job it is to remain impartial during often emotionally and 
     politically charged proceedings--might seem too restrictive.
       But Sessions said that, like all judges, he has strived to 
     suppress his biases and focus on the law and the legal 
     questions that have come before him.
       The one area where he said his humanitarianism shows in the 
     courtroom is in the courtesy he strives to show to everyone 
     who stands before him.
       ``I love treating people with respect,'' he said. ``In this 
     courtroom, I take a great deal of pride in seeing that a 
     little bit of Vermont takes place in the courtroom. . . . 
     Each defendant is treated respectfully. I think that's how 
     people treat each other in Vermont.''
       He has also tried to look beyond a person's crime to 
     consider variables about their risk to commit future 
     offenses, their rehabilitative needs including mental health 
     and substance abuse and the message that a potential sentence 
     might send to the broader public.
       ``I would say that I look closely at the nature of the 
     crime and whether they're taking responsibility for it,'' he 
     said. ``In all the studies I've read, if someone is 
     accountable for their crime, they're much less likely to re-
     offend.''
       ``On the other hand, I feel really strongly that human 
     characteristics, the need for rehabilitation and the need to 
     protect society by addressing those issues that a particular 
     defendant has are also important,'' the judge added.
       Over the years, Sessions has heard countless criminal 
     cases, including the first death penalty case in the state in 
     more than half a century. In that case, involving convicted 
     murderer Donald Fell, Sessions ruled in 2002 that the Federal 
     Death Penalty Act of 1994 was unconstitutional. The 2nd U.S. 
     Circuit Court of Appeals later reversed that ruling and an 
     appeal to the U.S. Supreme Court wasn't taken up by the 
     justices. Because Fell's case remains under appeal, Sessions 
     said he is unable to discuss it.
       Sessions also served for 11 years on the U.S. Sentencing 
     Commission which was established to address disparities in 
     criminal sentencing.
       Politics surrounds the group, with congressmen split over 
     whether they wanted to create it in 1999 and insistence among 
     legislators that the commissions members be made up equally 
     of judges nominated by conservatives and liberals.


                             Judges united

       But the agendas of the politicians who created the 
     commission didn't enter into the work of the judges who 
     Sessions said were routinely united in their opinions on 
     changes designed to make sentencing guidelines and outcomes 
     more uniform from state to state.
       And in no arena were the judges more in agreement, he said, 
     than in their work on addressing the disparities in 
     sentencing for those guilty of possessing crack cocaine.
       Prior to the commission's work on crack cocaine sentences, 
     a 100-to-1 disparity existed between sentencing for crack and 
     powder cocaine.
       A defendant guilty of possessing 5 grams of crack cocaine 
     faced a five-year minimum sentence while a person would have 
     to possess 500 grams of powder cocaine to receive the same 
     punishment.
       ``It stemmed from a fear in the 1980s that crack cocaine 
     was a devastating drug that was much more serious than powder 
     cocaine,'' Sessions said. ``So the penalties were 
     extraordinarily high. Five grams of cocaine is an 
     extraordinarily small amount.''
       After it became clear that there wasn't much difference 
     between crack and powder in terms of ill effects, and after 
     it became clear that those being sentenced for crack cocaine 
     possession were disproportionately black people, Sessions 
     said it became obvious to all the judges on the commission 
     that their first task needed to be a change to the crack 
     sentencing guidelines.
       ``We went around the room and we were each asked what we 
     wanted to change first and the judges unanimously spoke of 
     changing the crack versus powder cocaine disparity,'' he 
     said. ``The reason really stems not only out of the criminal 
     justice system but on the impact on minority communities in 
     the country.''
       In 2004, the commission changed the sentencing guidelines 
     for crack cocaine possession and in 2010 Congress passed 
     changes to the required amount someone must possess to 
     receive a minimum five or 10-year jail sentence.
       The changes were made retroactively and had the effect, on 
     average, of reducing jail sentences for crack cocaine 
     possession by three years.
       ``That meant that 20,000 people in prison were resentenced 
     for crack cocaine and many were released immediately,'' 
     Sessions said, calculating that about 25 cases in Vermont 
     were affected by the sentencing change.


                            National impact

       Beyond the criminal cases, Sessions has decided a number of 
     cases with weighty constitutional import.
       Thanks to being in a small state with just two federal 
     judges, Sessions said he has received a disproportionate 
     amount of cases with potential national ramifications over 
     the years.
       One of the most far reaching cases he's decided was a 2007 
     case in which he ruled in favor of Vermont, New York and a 
     number of environmental groups in a case involving several 
     automobile manufacturers.
       The case was based on regulations passed in California and 
     then adopted in Vermont and New York that sought to reduce 
     automobile emissions by establishing higher mileage 
     requirements for new cars.
       ``(The auto manufacturers) sued in each of the circuits and 
     our case came up first,'' Sessions said. ``It was a question 
     of whether it was a requirement that was justified 
     constitutionally.''
       Car manufacturers argued that the changes would have a 
     severe impact on the industry and they argued that global 
     warming hadn't been established.
       Over the course of a six-week trial, Sessions heard from 
     dozens of witnesses before issuing a 350-page decision that 
     upheld the state's regulations.
       ``I've been told it's in textbooks on environmental law,'' 
     he said.
       The shift to senior status will likely reduce Sessions' 
     workload, as a new federal judge will be appointed to the 
     district. But while he said he's looking forward to time with 
     his four grandchildren and hiking and biking with his wife, 
     the judge said he isn't thinking yet about slowing his work 
     on the bench.
       ``I'm not planning on slowing down at all,'' he said. ``At 
     this point, I'm a pretty young guy. I'm going to be 67 this 
     month, but I feel like 50.''

  Mr. LEAHY. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The Senate is currently considering the Moody 
nomination.
  Mr. LEAHY. Is there a time agreement on the nomination?
  The PRESIDING OFFICER. All time has now expired.
  Mr. LEAHY. I yield the floor.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of James Maxwell Moody, Jr., of Arkansas, to 
be United States District Judge for the Eastern District of Arkansas?

[[Page 3118]]


  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. DURBIN. I announce that the Senator from Florida (Mr. Nelson) is 
necessarily absent.
  The result was announced--yeas 95, nays 4, as follows:

                       [Rollcall Vote No. 39 Ex.]

                                YEAS--95

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Begich
     Bennet
     Blumenthal
     Blunt
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Fischer
     Flake
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Paul
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Rubio
     Sanders
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Walsh
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--4

     Crapo
     Risch
     Roberts
     Shelby

                             NOT VOTING--1

       
     Nelson
       
  The nomination was confirmed.
  Mrs. FEINSTEIN. Mr. President, I am very pleased to express my strong 
support for two highly qualified nominees to the U.S. District Court 
for the Northern District of California:
  Superior Court Judge Beth Freeman, and James Donato.
  I recommended these candidates to President Obama after my bipartisan 
screening committee gave them both strong recommendations.
  I am very pleased they will soon fill two longstanding vacancies in 
the Northern District of California.
  Judge Freeman earned her law degree from Harvard Law School in 1979, 
and she served in the County Counsel's Office in San Mateo for 18 
years.
  She has spent the last 12 years on the San Mateo Superior Court, 
including as presiding judge and assistant presiding judge. She has 
presided over more than a thousand trials, and she has experience in 
both civil and criminal cases.
  I have received letters of support for Judge Freeman from Don 
Horsley, president of the San Mateo Board of Supervisors and former 
chair of the County's Domestic Violence Council, and from Stephen 
Wagstaffe, San Mateo District Attorney.
  These letters are strong endorsements for Judge Freeman, and I will 
simply quote what Mr. Wagstaffe said: ``In 36 years as a prosecutor in 
San Mateo County, I have not seen a better judge in all respects than 
Judge Freeman.''
  That is very high praise, and I am pleased Judge Freeman soon will be 
confirmed and begin her service as a Federal judge in San Jose.
  Let me now describe Jim Donato, who once confirmed will serve in San 
Francisco.
  Mr. Donato earned his law degree from Stanford Law School where he 
was a Senior Editor of the Stanford Law Review. He clerked for Judge 
Procter Hug on the Ninth Circuit.
  He served for 3 years in the City Attorney's Office in San Francisco. 
He has built a distinguished record over two decades as a private 
practitioner handling complex civil cases such as antitrust cases, at 
Cooley LLP and Shearman & Sterling LLP.
  Complex civil experience is especially important in Northern 
California because the Northern District's docket is 84 percent civil, 
according to the most recent statistics.
  Mr. Donato also is a leader in the San Francisco legal community 
where he has devoted much of his time to the Bar Association of San 
Francisco, including as its President in 2008.
  I have great confidence Mr. Donato will be an outstanding federal 
district judge.
  Let me close by noting that each of these nominees will fill a 
judicial vacancy that has been designated as a ``judicial emergency'' 
by the Judicial Conference of the United States.
  The Northern District's weighted caseload per judgeship is over 13 
percent above the national average. Filings per active judge are up 17 
percent since 2008. In fact, it now takes 27 percent longer for a civil 
case to get to trial than it did in 2010.
  The vacancy Judge Freeman would fill has existed for over 800 days. 
The vacancy Mr. Donato would fill has existed for over 500 days.
  It is long past time for these seats to be filled. Indeed, each of 
these nominees should have been confirmed in 2013--but, unfortunately, 
each had to be renominated in this session and voted out of the 
Judiciary Committee for a second time. This wasted several months 
during which each could have been serving as a Federal Judge.
  Nevertheless, I am very pleased that, today, Judge Freeman and Jim 
Donato will be confirmed and will be able to assume their duties 
shortly.
  I urge my colleagues to support both of these fine nominees.

                          ____________________