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Activities Report COMMITTEE on the JUDICIARY UNITED STATES SENATE 2005–2006

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Activities Report COMMITTEE on the JUDICIARY UNITED STATES SENATE 2005–2006 1 109TH CONGRESS " ! REPORT 2d Session SENATE 109–369 Activities Report OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE 2005–2006 DECEMBER 22, 2006.—Ordered to be printed Filed, under authority of the order of the Senate of December 9 (legislative day December 8), 2006 U.S. GOVERNMENT PRINTING OFFICE 59–010 WASHINGTON : 2007 VerDate Aug 31 2005 14:03 Jan 10, 2007 Jkt 059010 PO 00000 Frm 00001 Fmt 4012 Sfmt 4012 E:\PICKUP\SR369.XXX SR369 cprice-sewell on PROD1PC66 with HEARING E:\Seals\Congress.#13 COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma MICHAEL O’NEILL, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate Aug 31 2005 14:03 Jan 10, 2007 Jkt 059010 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 E:\PICKUP\SR369.XXX SR369 cprice-sewell on PROD1PC66 with HEARING C O N T E N T S Page INTRODUCTION .................................................................................................... I. MAJOR BILLS AND HEARINGS ................................................................ 5 A. CIVIL LAW ISSUES ........................................................................ 5 B. CRIMINAL LAW ISSUES ............................................................... 20 C. IMMIGRATION LAW ...................................................................... 30 D. CONSTITUTIONAL LAW ............................................................... 37 E. ANTI-TERRORISM MEASURES ................................................... 46 F. COURTS & THE JUDICIARY ........................................................ 52 II. OVERSIGHT MATTERS ............................................................................... 58 III. NOMINATIONS ............................................................................................. 69 A. NOTABLE JUDICIAL NOMINATIONS ........................................ 69 1. UNITED STATES SUPREME COURT ................................... 69 2. UNITED STATES COURTS OF APPEALS ............................ 73 3. DISTRICT COURTS .................................................................. 93 4. OTHER COURTS ...................................................................... 94 B. NOTABLE EXECUTIVE NOMINATIONS .................................... 94 IV. APPENDICES REGARDING NOMINATIONS .......................................... 108 A. MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS—GANG OF FOURTEEN AGREEMENT ........ 108 B. LETTER: CHAIRMAN SPECTER TO AMERICAN BAR ASSO- CIATION (MICHAEL S. GRECO AND STEPHEN L. TOBER); JUNE 22, 2006 ............................................................................... 109 C. LETTER: STEPHEN L. TOBER TO CHAIRMAN SPECTER; JUNE 30, 2006 ............................................................................... 110 D. LETTER: CHAIRMAN SPECTER TO AMERICAN BAR ASSO- CIATION (MICHAEL S. GRECO AND STEPHEN L. TOBER); AUGUST 7, 2006 ............................................................................ 111 E. LETTER: THEODORE B. OLSON (ON BEHALF OF ABA) TO CHAIRMAN SPECTER; SEPTEMBER 14, 2006 ......................... 114 V. SUMMARY MATERIALS REGARDING NOMINATIONS ........................ 117 A. ARTICLE III JUDGES CONFIRMED ........................................... 117 B. NOMINATIONS HEARINGS BY DATE ........................................ 118 C. DAYS ON THE SENATE FLOOR .................................................. 119 D. HISTORICAL VACANCY RATES 1977–PRESENT ..................... 120 E. HISTORICAL VACANCY RATES BY CONGRESS ...................... 121 F. DISPOSITION OF ARTICLE III JUDGES .................................... 123 G. RELEVANT DATES FOR 109TH CONGRESS NOMINEES ...... 125 VI. SUMMARY MATERIALS REGARDING COMMITTEE ACTIVITIES ..... 136 A. STATISTICAL OVERVIEW ............................................................ 136 B. HEARINGS OF THE 109TH CONGRESS .................................... 136 C. EXECUTIVE BUSINESS MEETINGS WITH AGENDAS ........... 140 D. BILLS, NOMINATIONS, AND MATTERS REPORTED .............. 171 E. SUCCESSFUL LEGISLATION ...................................................... 174 F. PUBLICATIONS .............................................................................. 181 VII. COMMITTEE STRUCTURE AND PROCEDURE ...................................... 186 A. FULL COMMITTEE MEMBERSHIP ............................................ 186 B. SUBCOMMITTEE MEMBERSHIP ................................................ 186 C. JURISDICTION OF THE COMMITTEE ....................................... 187 D. RULES OF THE COMMITTEE ...................................................... 194 (III) VerDate Aug 31 2005 14:03 Jan 10, 2007 Jkt 059010 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 E:\PICKUP\SR369.XXX SR369 cprice-sewell on PROD1PC66 with HEARING VerDate Aug 31 2005 14:03 Jan 10, 2007 Jkt 059010 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 E:\PICKUP\SR369.XXX SR369 cprice-sewell on PROD1PC66 with HEARING INTRODUCTION Staff of the Senate Committee on the Judiciary under the direc- tion of Chairman Arlen Specter prepared the following report de- tailing the Committee’s activities during the 109th Congress. One of the Senate’s original standing committees, the Committee on the Judiciary was first authorized on December 10, 1816. The Com- mittee enjoys one of the broadest jurisdictions in the Senate, rang- ing from constitutional law and criminal justice issues to antitrust and intellectual property concerns. The Committee actively pur- sued hearings and legislative initiatives in a broad variety of areas, achieving notable successes in the enactment of bankruptcy and class action reform and in re-authorizing the Department of Jus- tice’s many important programs. The Committee also fulfilled its obligation in reporting numerous Article III judges and executive branch officials to the Senate floor. Of particular significance, the Committee held hearings for, and favorably reported out, John G. Roberts to be Chief Justice of the United States and Samuel A. Alito to be an Associate Justice of the United States. I. MAJOR BILLS AND HEARINGS A. CIVIL LAW ISSUES S. 852, FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005 S. 3274, FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2006 Asbestos reform legislation played a prominent role on the Judi- ciary Committee’s agenda during the 109th Congress. The Com- mittee confronted enormous challenges in seeking to resolving one of the nation’s worst litigation crises. Tens of thousands of Americans have developed debilitating or deadly asbestos-related diseases, and more will become ill in the coming years. The existing tort system has been unable to resolve claims adequately and efficiently, or ensure that current and future victims of asbestos are fairly compensated for their injuries. The sheer number of claims has clogged both state and federal courts. Contingency fees have significantly reduced the real value of pay- ments to victims. Claims by unimpaired individuals have delayed payments and reduced the amount available for the truly sick. As- bestos claims have driven many defendants into bankruptcy, leav- ing some victims without payments altogether and other victims di- verted to bankruptcy trusts that offer miniscule payments. Fur- thermore, these corporate bankruptcies endanger the jobs and pen- sions of many American workers. Indeed, the Supreme Court has implored Congress to address the asbestos litigation crisis, noting on more than one occasion that the current flawed system ‘‘defies customary judicial administration.’’ Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). The Court has sug- (1) VerDate Aug 31 2005 14:03 Jan 10, 2007 Jkt 059010 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\PICKUP\SR369.XXX SR369 cprice-sewell on PROD1PC66 with HEARING 2 gested that ‘‘a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compen- sating victims of asbestos exposure.’’ Amchem Products Inc. v. George Windsor, 521 U.S. 591 (1997). The 108th Congress sought to address asbestos reform with S. 1125, a bill introduced by Senator Hatch and favorably reported from the Committee. Although that bill was never considered by the full Senate, it served as the starting point for negotiations initi- ated by Chairman Specter in the 109th Congress and led by the late Honorable Edward R. Becker, Senior Judge and Former Chief Judge of the United States Court of Appeals for the Third Circuit. Judge Becker hosted 47 meetings with asbestos defendants, insur- ers, labor unions, victims’ groups, the trial bar and other interested parties. Many important compromises were reached during these negotiations, which secured support from a broad spectrum of stakeholders, including such labor groups as the International Union of Heat and Frost Insulators and Asbestos Workers and the United Auto Workers, which previously opposed asbestos reform. The Becker negotiations resulted in several proposed changes to S. 1125 as reported in the 108th Congress. These included modi- fications strengthening the medical criteria to be applied to persons with lung cancer and
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