June 24, 2008 CONGRESSIONAL RECORD — SENATE S5993 EXECUTIVE SESSION our committee. After I expedited a rocketed as the dollar has collapsed in hearing on the Michigan nominees, fig- value worldwide because of the huge uring that 10 years of waiting might debt caused by the Iraq war. They do NOMINATION OF HELENE N. have been enough, Republicans ob- not seem to realize that some of the WHITE, OF MICHIGAN, TO BE jected that we were moving too fast. typical Americans in my State of UNITED STATES CIRCUIT JUDGE They peppered her with more questions FOR THE SIXTH CIRCUIT Vermont and, I suspect, the Presiding than any nominee of President Bush Officer’s State of New Jersey, are find- The PRESIDING OFFICER. Under that I can recall. At our committee ing it very hard to buy gas to go to the previous order, the Senate will pro- markup, Republicans made the wildly work or pick up their children after ceed to executive session to consider dumbfounding claims that she is not school or do their grocery shopping or the nomination, which the clerk will experienced. But after more than 25 visit an ailing parent. You would not report. years as a Michigan State court judge, think these were important matters The assistant legislative clerk read including 15 as a State appellate court when you hear of the priorities on the the nomination of Helene N. White, of judge, she is a more experienced judi- Michigan, to be United States Circuit other side. You would not be aware cial nominee than many of those they there is a huge crisis in the housing in- Judge for the Sixth Circuit. previously supported. Mr. ISAKSON. Madam President, I It is interesting that Republicans did dustry, where people are losing houses ask unanimous consent that the time not raise this concern when they were all over this country, hard-working during the quorum be equally divided supporting far less experienced nomi- Americans who finally had the Amer- between the parties, and I suggest the nees such as Jennifer Elrod and ican dream of owning their own home absence of a quorum. Catharina Haynes of Texas to fill cir- and are now losing it. You would think The PRESIDING OFFICER. Without cuit court vacancies. In fact, Judge that was not happening by what we objection, it is so ordered. White has been on the appellate bench hear from the other side. The clerk will call the roll. longer than Mr. Kethledge, the other Republicans are now regularly ob- The bill clerk proceeded to call the Sixth Circuit nominee, has been out of jecting to hearings before the Judici- roll. law school. Mr. LEAHY. Mr. President, I ask ary Committee. They seem dis- It is ironic that last week several Re- appointed when we conclude hearings unanimous consent that the order for publican Senators held a press con- the quorum call be rescinded. within the first 2 hours of the Senate’s ference with representatives from right day and they cannot disrupt them. The PRESIDING OFFICER (Mr. LAU- wing groups organized by a group call- TENBERG). Without objection, it is so ing itself Concerned Women for Amer- They objected to Senator FEINSTEIN ordered. ica. It is Republican opposition to a completing an important hearing on Mr. LEAHY. Mr. President, what is woman nominee that has been holding interrogation techniques used against the parliamentary situation? detainees. It is almost as if, if we can The PRESIDING OFFICER. The Sen- up the progress of filling judicial va- cancies. Now this woman nominee they block that hearing from happening, ate is presently in executive session. these terrible things never would have Mr. LEAHY. Am I correct that we are seemed concerned about is described on President Bush’s White House Web site happened because Republicans fore- now on a judicial nomination? closed the ability of Americans to hear The PRESIDING OFFICER. The Sen- as ‘‘an experienced and highly qualified what went on in those hearings. ator is correct. judge, who is known for her intellect, Mr. LEAHY. Is there a time agree- work ethic, and demeanor.’’ She has They objected to a hearing high- ment? been given the highest rating for the lighting the impact of Supreme Court The PRESIDING OFFICER. There is position by the ABA. Yet her extensive decisions on the daily lives of all 4 hours equally divided. But the Senate experience, which is far more than the Americans even though that meant has used some of that time in the experience of many supported by my cutting short the testimony of two quorum call. friends on the other side of the aisle, brave women victimized by such a deci- Mr. LEAHY. I yield myself such time does not seem to meet the sudden last- sion, Pennsylvanians who came to as I may need in the time allotted to minute standards set by Republican Washington to tell how badly they had the Senator from Vermont. members of the committee. been hurt by these decisions. The Re- Today, the Senate is turning to a As a state judge, she has not been publicans effectively silenced them to package of three nominations for life- called upon to consider and apply cer- make sure they could not speak and time appointments to the Federal tain Federal statutes. That would be could not testify because they said we bench in Michigan, including President the same with thousands of state should not have these Judiciary Com- Bush’s nominations of Judge Helene judges all over the country. It is under- mittee meetings. So these two Penn- White and Raymond Kethledge to fill standable. But if you characterize her sylvanians had to go back home unable the final two vacancies of the Sixth because of that as unqualified, that to finish telling their story. Circuit Court of Appeals. would turn back the clock to before the These nominations are the result of confirmation of Justice Sandra Day And a few days ago, the Republican the hard work of Senators LEVIN and O’Connor, who had been a State legis- minority objected to a hearing that STABENOW, who consulted with Presi- lator and a State judge. Justice O’Con- had been requested by Judiciary Com- dent Bush to end a decade-long impasse nor was not experienced in deciding mittee Republicans to examine the in filling vacancies on the Sixth Cir- Federal law issues before confirmation need for additional Federal judgeships cuit. During that time, Senate Repub- as the first woman on the U.S. Su- throughout the country. This now all licans had blocked President Clinton’s preme Court. I think we should all too familiar pattern is childish and nominees to that circuit, leaving open agree she nonetheless served the Na- serves no good purpose. four vacancies. tion well in that capacity. And I agreed We will see later this week whether I am worried that some on the other with her chief sponsor in this body, my they allow Senator BIDEN to proceed to side seem intent on preventing us from friend and former colleague, Barry chair a hearing before the Sub- making this progress. Judge White’s Goldwater of Arizona, and I was proud committee on Crime and Drugs con- nomination should be a consensus nom- to join with him in voting for Sandra cerning fugitives from justice. ination. Judge White was nominated by Day O’Connor. Regrettably, these obstructionist a Democratic President and by a Re- It is also ironic that week after week, publican President. When the most par- as the Senate continues to make tactics from the other side of the aisle tisan President in modern history, one progress in filling judicial vacancies, are likely to continue without regard responsible for sending us so many di- we hear a steady stream of grumbling to the real priorities of the struggling visive nominations, renominates a from Republicans whose main prior- Americans I spoke about, the voters Clinton judicial nominee, it actually ities now seem to be to prevent the who have elected every Senator to should send a signal. Senate and the Judiciary Committee serve. Their priorities are being pushed Nevertheless, her nomination drew from addressing the priorities of ordi- aside. criticism from the Republican leader nary Americans. You would almost We read last week another story and opposition from Republicans on think that gasoline has not sky- about the dissatisfaction of right wing

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5994 CONGRESSIONAL RECORD — SENATE June 24, 2008 activists and their pressuring of the including 4 circuit court judges, so far the door on a sorry chapter. I commend Republican leadership in the Senate. this Presidential election year, com- the President for doing it and for what We witnessed their response this pared to 1996, when none had been con- he has said on his White House Web month as they forced a reading of a firmed at this point. site about Judge White’s nomination. I substitute amendment to critical cli- In addition to today’s three nomi- hope the Senate will follow the exam- mate change legislation. They did this nees, two more judicial nominees al- ple of President Bush and confirm for hours and hours, thereby shutting ready reported by the Senate Judiciary Judge White to one of the last two va- down the work of the Senate. Committee are pending on the Senate’s cancies on the Sixth Circuit. Two weeks ago, we saw a story in executive calendar. I have placed four The Michigan vacancies on the Sixth Roll Call that included the headline more on the Judiciary Committee busi- Circuit have proven a great challenge. ‘‘Divided GOP Settles on a Fight Over ness agenda for later this week. I commend the senior Senator from Judges.’’ That headline reminded me of It is perhaps the ultimate irony that Michigan, chairman of the Senate the famous Wolfowitz quote about why here, as the Democratic leadership of Armed Services Committee, Senator the Bush administration settled on the Senate takes the extraordinary LEVIN, and his outstanding colleague, supposed weapons of mass destruction step of proceeding to two more of Senator STABENOW, for working to end as the justification for attacking Iraq President Bush’s circuit court nomi- years of impasse. I had urged the Presi- even though they knew there were no nees in June of a Presidential election dent to work with the Michigan Sen- weapons of mass destruction—it was year, I am being criticized by Repub- ators. After 7 years, he now has. the rationale they could agree on. They licans for, of all things, moving too We have come a long way since I be- all knew they wanted to attack Iraq, quickly. I had hoped, in light of the came chairman in 2001 when the Sixth they knew they did not have the facts discussion between the majority leader Circuit was in turmoil because Repub- to attack Iraq, so they found a cover and the Republican leader earlier this licans had blocked nominations for story they could use. And thousands of spring, to have concluded Senate ac- many years. Today we complete that lives and $1 trillion later they say: tion on this package of Michigan nomi- progress by confirming Judge White Oops, sorry, no weapons of mass de- nees more quickly. I tried to have and Raymond Kethledge. struction, but, boy, we all agreed on these votes in May before the Memo- I yield the floor and retain the re- the rationale. rial Day recess, but we were thwarted mainder of my time. How much time The report in Roll Call included dis- in that effort by Republican concerns remains to the Senator from Vermont? cussion by Republican Senators of the about expediting consideration of these The PRESIDING OFFICER. There is politics that fuels their efforts to ap- Bush nominees. So what we might have 1 hour 32 minutes. peal to ‘‘conservative activists’’ and done in May, we are now having to do Mr. LEAHY. I thank the Chair. ‘‘ignite base voters’’ and find an issue in June. The PRESIDING OFFICER. The Sen- that ‘‘serves as a rare unifier for Sen- It reminds me a little bit of the Re- ator from Pennsylvania. ate Republicans’’ and their Presi- publican antics and shenanigans earlier Mr. SPECTER. Mr. President, we are dential nominee. That piece mirrored this year that cost us progress in Feb- moving forward today on the votes for an earlier article in the Washington ruary. Rather than making progress, confirmation of three Federal judges. Times, reporting how this is all part of Republicans refused to make a quorum Among the many very heavy respon- an effort to bolster Senator MCCAIN’s in the Judiciary Committee that entire sibilities of the Senate, the confirma- standing among conservatives. month so no judicial nominees would tion process ranks very high. Under This political song-and-dance would come out in March, and then in March, our system of government, we give to not be so bad if it were not impacting they could give speeches. the judicial branch the responsibility the integrity and the independence of So let there be no mistake. If Judge of interpreting the Constitution and es- the Federal judiciary, something that White is confirmed, we will have bro- tablishing the rule of law. That has in the past both Republicans and ken a 10-year impasse on the Sixth Cir- broad implications. It means the courts Democrats tried to protect. cuit. By contrast, the Republican Sen- render decisions where one citizen has I had suspected that much of this ate majority during the Clinton years a claim against another, which goes to complaining was because Republican refused to consider President Clinton’s court. It means a claim when the gov- partisans were looking for an issue to Sixth Circuit nominees for 3 years and ernment and a citizen have a con- energize their political base during an left four vacancies on that court. troversy which is to be settled by an election year. The reports from the When, as chairman, I scheduled a impartial judicial arbitrator. It also in- media outlets have confirmed my sus- hearing and vote for Judge Julia Smith volves some of the historic constitu- picions. I wonder if they realize that Gibbons of Tennessee and Judge John tional confrontations, one of which we liberals, conservatives, Republicans, Marshall Rogers of Kentucky, we were will have later this week on the For- and Democrats are suffering from hav- able to confirm the first new judges to eign Intelligence Surveillance Act. ing to pay these outrageous gas prices. the Sixth Circuit in 5 years. The others Where does the Article II power of the Wouldn’t it be better if they worked on had been pocket-filibustered by Repub- President end as Commander in Chief, that? licans. I said we would not do the same and where does the Article I power of Americans, Republicans and Demo- thing to them, and we did not. We the Congress of the United States es- crats, in all parts of this country, are moved quickly on President Bush’s tablish itself under Article I? seeing their houses disappear and the nominees to that circuit. The con- It is a very, very high calling. When value they had hoped for their retire- firmations of Judge White and Mr. the framers adopted the Constitution, ment gone. Wouldn’t addressing that Kethledge of Michigan would complete Article I was given to the Congress. Ar- be something better on which to unite the process by filling the two remain- ticle II to the executive branch and Ar- America? ing vacancies on the Sixth Circuit. ticle III to the judicial branch. Later, On this date in the 1996 session, an- Judge White was first nominated by Chief Justice Marshall, in effect, re- other Presidential election year but President Clinton to a vacancy on the wrote the order of priority. I think if one in which a Republican Senate ma- Sixth Circuit more than 11 years ago, the Constitution were to be rewritten jority was considering judicial nomi- but the Republican-led Senate refused today, the judicial branch would be No. nees of a Democratic President, do you to act on her nomination. She waited 1, because the judicial branch has know how many judicial nominees had in vain for 1,454 days for a hearing be- taken over the responsibility, for a va- been confirmed? The answer is easy: fore President Bush withdrew her nom- riety of reasons, for deciding all of the None, not a single one. That was a ses- ination in March 2001. Hers was 1 of cutting edge questions. sion that ended without a single circuit more than 60 qualified judicial nomi- We have had a great deal of focus of court judge being confirmed. nees pocket-filibustered by Repub- attention on the confirmation process. By contrast, if Republicans will allow licans. This year, President Bush re- This attention usually happens when the confirmation of Judge White to the considered and renominated her, and I Supreme Court nominations are in- Sixth Circuit, we will have today com- applaud President Bush for doing so. volved. Then, in the major committee pleted the confirmations for 12 judges, He deserves credit for trying to close hearing rooms, Senators are all at

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5995 their desks. There are not too many ment,’’ let me modify that slightly to court en banc, when the full circuit Senators at their desks here today. In ‘‘best efforts.’’ When the nominees court will decide, but customarily the fact, I don’t see anybody at their desk were selected, there was concern on the decision is only rendered by the three- here today, except for the Presiding Of- part of the Republican side of the aisle judge panel, and many decisions are ficer, which is not exactly his desk. It that there was insufficient time to two to one. is the vice president’s desk. But, Sen- take up the nomination of appellate One case which illustrates the impor- ator LAUTENBERG from New Jersey court Judge Helene White to be a judge tance of the circuit court, and espe- looks comfortable in the position. We of the Sixth Circuit. cially the Court of Appeals for the have had, during the confirmation I will ask unanimous consent that Sixth Circuit, was the decision on the process of Chief Justice Roberts and the full text of my statement on Judge constitutionality of the Terrorist Sur- Associate Justice Alito, seen the Sen- White’s nomination be printed in the veillance Program, the program put ate at its best—avoiding the con- RECORD at the conclusion of my re- into effect by the President on troversy, avoiding the partisanship, marks. warrantless wiretaps. These wiretaps and moving forward in dignified hear- By including my statement, I can ab- went on for a long time before they ings. breviate my comments now. In my were disclosed—a violation of the Na- As I have said before—and it is worth statement, I note that there were only tional Security Act of 1947, which re- repeating—I compliment the distin- 22 days between Judge White’s nomina- quires the President to inform the In- guished chairman of the Judiciary tion and hearing, and there was not an telligence Committees of such pro- Committee for his courageous stand in opportunity to get into the details of ceedings, and a violation of the Foreign voting for Chief Justice Roberts. Chief her record, which is a matter not just Intelligence Surveillance Act of 1978. Justice Roberts was confirmed by a of procedure, not just of form, but of The President has responded to the vote of 78 to 22. Counting the Inde- real substance in terms of the commit- law that Article II powers are not af- pendent vote with the Democrats, a tee’s ability to evaluate Judge White. I fected by statute, but that is a matter majority of the Democrats voted in shall talk about that specifically, in for judicial decision. A Federal court in favor of Chief Justice Roberts, and it terms of her qualifications and in Detroit declared the Terrorist Surveil- was a good, unifying symbol. We moved terms of specific cases which she has lance Program unconstitutional. The through that process where there had decided. The context of the mere 22 case was appealed to the Sixth Circuit, been some doubt as to how the Senate days to evaluate her nomination is fur- and on a two-to-one decision, the Sixth would perform, a doubt which was oc- ther illuminated by the fact that there Circuit decided the plaintiffs did not casioned by the very bitter infighting, were so many other nominees who had have standing. That is a complicated which characterized the Senate in 2003, been on the agenda for much longer. A legal procedure, which I will not take 2004, and 2005, when we had the con- very distinguished lawyer, Peter time to discuss today, but, in short, troversy with the filibuster by one side Keisler, a man who has been praised on they do not have a right to challenge it and the threat to invoke a new rule of the editorial pages, had been waiting because they are not sufficiently af- cloture with the so-called constitu- for 726 days for a committee vote on fected by it. tional or nuclear option. his nomination to Circuit Court for the There was a dissent in that Sixth Cir- I have the pleasure of having my 14- District of Columbia. It is not too often cuit decision. Then, the Supreme Court year-old granddaughter with me this that judicial nominees are praised on of the United States denied certiorari— week. She just graduated from the the editorial pages, but Peter Keisler a decision which I thought was unfor- eighth grade and is spending a week as has been. A judge in North Carolina, tunate. When you have a major con- an intern in the Senate. It may be a District Court Judge Robert Conrad, stitutional confrontation between the little early for the job. Her father spent who is up for a seat on the Fourth Cir- Congress and the President—the most 6 weeks with Senator Hugh Scott many cuit, has been waiting for a hearing for dominant confrontation of this era—it years ago when he was 17. But, in going 343 days. A man named Steve Mat- seems to me the Supreme Court of the over the day’s itinerary, I sought to ex- thews, also for a seat on the Fourth United States ought to decide the issue plain to my granddaughter, Silvia Circuit, has been waiting for a hearing and, candidly, not look for a way to Specter, what a confirmation is. She is for 292 days. duck it. watching, with more interest, the ac- It seemed to my Republican col- The doctrine of standing has suffi- tivities of the Senate today because leagues and me that where you had a cient flexibility, as illustrated by the she is onboard. It is my hope, with commitment for confirmations by Me- dissent in the Sixth Circuit, that the agreements which have been reached morial Day, and you had people who Court could have taken the case. There here today to move ahead with the con- had been waiting around for this length is a lot of flexibility when the court firmation of three Federal judges today of time and we were in a position to deals with issues such as standing. and two more on Thursday, that per- evaluate them, that they should have Coming back to the point, one judge of haps we will see a return to at least been the ones to be considered. But, the Sixth Circuit made the difference. some basic level of comity in the Sen- the majority leader chose otherwise, So, when you have a nominee to the ate. We have moved a considerable dis- and now we have before us the nomina- Sixth Circuit Court of Appeals, or any tance from the tradition of confirma- tion of Judge White for a position on court of appeals, it is an important de- tion of Federal judges where, in times the Sixth Circuit. cision. gone by, there was merely a review of The status of a circuit judge is ex- Going back to the topic at hand, we academic standing, professional stand- tremely important in our judicial hier- had the hearing on Judge Helene ing, and trial practice; now, we go into archy because the circuit court—for White, and we had it in a very hurried much more detail of the ideology and those who are not familiar with the de- fashion. We did not have the rating of philosophy of the nominees. That tails of Federal procedure—is the ap- the American Bar Association, and, re- change has led to some deep concerns pellate court right above the U.S. Dis- grettably, we did not have all the ma- over the so-called cultural wars which trict Court, which is the federal trial terials that should have been available have, candidly, muddied the waters. court. When appeals are taken, or, to the committee. When judges write However, it is my hope that in the time more specifically, a petition for a writ opinions, a good many of them are that remains in the 110th Congress, we of certiorari is applied for to the Su- what are called unpublished. For those will move ahead with the confirmation preme Court of the United States, it is who do not know the legal procedures, of judges on up-and-down votes. a discretionary matter whether the Su- there are published opinions, which are The three nominees we are consid- preme Court takes the case. Most of bound in volumes that are used for ering today have come to the floor as a those applications are not heard—the precedents. But, the courts make a dis- result of an arrangement worked out U.S. Supreme Court takes very few tinction on what is published and what by the leadership on both sides. Origi- cases from the court of appeals. So, is unpublished, and a good many of nally, there had been a commitment to when a three-judge panel sits in a cir- Judge White’s opinions were unpub- have these confirmations occur before cuit court, that is it. Now, sometimes lished and reversed, and we never were Memorial Day. When I say ‘‘commit- there will be a decision by the circuit able to get them.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5996 CONGRESSIONAL RECORD — SENATE June 24, 2008 I asked Judge White at the hearing but was charged and convicted in a Judge White was wrong, as determined about a number of her cases because state court. The defendant argued that by the appellate court. my own sense is to get involved in the the decision to pursue a state prosecu- There is one other case on which I specifics. In evaluating judges and tion rather than a federal prosecution wish to comment. There is a case evaluating lawyers on their legal was vindictive. The panel on which called People v. Thomas, which is in skills, it is very revealing to see what Judge White sat found that the trial the RECORD and which I will incor- they have decided. Perhaps even more court’s determination that there was porate by reference to save some time; revealing than what they have decided vindictive conduct was not clearly er- however, I do want to specify the case is the way they have reasoned through roneous. The Supreme Court reversed of People v. Hansford, which was an the decision. My questions about her stating: opinion reversed on appeal by the cases were not designed to be so-called The mere threat to refer the case for State Michigan Supreme Court and was a ‘‘gotcha’’ questions. All the cases I prosecution does not amount to objective third case she had summarized in her used for questioning were specifically evidence of hostile motive. questionnaire prior to her hearing. listed on Judge White’s Senate ques- The Supreme Court reversed the deci- After reading to Judge White in the hearing the defendant’s extensive tionnaire that she provided to the com- sion to which Judge White had been a criminal record, which included several mittee on April 25, just 12 days prior to party. counts of larceny and attempted lar- her hearing. I thought she would at I am sorry for the interruption. Any- ceny, receiving and concealing stolen least be familiar with these cases. one watching this debate on C–SPAN property, fleeing and alluding, and vio- One of the cases I questioned Judge just saw a congenial exchange between lations of probation, I noted that ha- White on was captioned People v. the distinguished chairman and the bitual offender statutes are designed to Santiago. In that case, Judge White ranking member of the Judiciary Com- take habitual offenders off the streets. dissented from her colleagues’ opinion, mittee. As a matter of fact, we have I asked what her reasoning was for de- quite a few such exchanges. The where her colleagues—two other termining that a man with an exten- judges—upheld a jury conviction of a evening is getting late and a lot of col- sive criminal record such as the de- defendant for first-degree felony mur- leagues have a lot of commitments, fendant did not deserve to be off the der and armed robbery. Judge White and there has been a request by the streets for life. would have reversed the sentence. majority that I abbreviate my com- Once again, her response to my ques- In this case, the defendant had driven ments. I think I can do that sensibly tion was that she was not familiar with the other two defendants to the house and will be delighted to do so. the case. She further stated that she where the robbery and murder were Mr. LEAHY. Mr. President, if the ‘‘accept[ed] the Supreme Court’s deci- committed, knowing that the defend- Senator will yield without losing the sion . . . and accept[ed] that the sen- ants intended to rob and likely kill the floor? tence was appropriate . . . because the victim—a classic example of aiding and Mr. SPECTER. No, Mr. President, I Supreme Court has said it is appro- abetting. It is a basic, fundamental already have yielded. priate.’’ rule of criminal law that an accomplice Mr. LEAHY. Mr. President, I appre- I again asked her whether she in a getaway car is a part of the con- ciate what the Senator said. I hope thought her decision was correct in spiracy to rob and is responsible for the people understand who are listening. I light of the Michigan Supreme Court’s consequences of a felony murder which know the two Senators from Michigan reversal, and she said: follows—very basic fundamental law. are going to speak very briefly. But if I have to have been wrong . . . The Su- I asked Judge White why she did not we wrapped up the comments in, say, preme Court reversed. I was wrong. The Su- agree with her colleagues that the de- the next 15, 20 minutes, we could then preme Court reversed. fendant was guilty of aiding and abet- go to a rollcall vote on Helene White. I Well, that is, in my legal opinion, to- ting. She could not explain why her de- would agree, then, to a voice vote on tally insufficient for a nominee to re- cision deviated from the legal stand- the other two judges, provided the spond in that way to a very important ards. I asked her specifically if it was ranking member had no objection to question such as that. You have habit- ‘‘standard, clear-cut law that when that, which would probably bring about ual offender statutes which are de- somebody drives a codefendant to a a huge sigh of relief from Senators on signed to take career criminals off the place where there is a robbery and a both sides of the aisle that we would streets. When you have three or more murder, that kind of assistance con- not be stuck here with three votes. convictions for violent offenses, it has stitutes guilt on the part of the cocon- Mr. SPECTER. Mr. President, I been determined that the criminals spirator, accessory before the fact?’’ thank the distinguished chairman for ought to have life sentences. Based on She commented, unresponsively, that his suggestion. It is almost 6 o’clock— the experience I had as district attor- she ‘‘went to law school in Pennsyl- a few minutes before—and I know peo- ney dealing with these cases, I au- vania,’’ but then continued that ‘‘in ple have a lot of engagements. I think thored the Armed Career Criminal bill, Michigan, to be responsible for the the course he outlines is a solid one. I which created a federal life sentence principal offense, one has to either think we can handle the Senate’s busi- for serious repeat offenders convicted share the intent to commit the prin- ness in that way. As I said earlier, I of three or more major felonies. The cipal offense or provide aid and support will expedite my presentation and rely fundamental part of the criminal law is with knowledge that the principal of- more on what I have in my statement to protect society. Recidivists commit fense was going to be committed.’’ for the RECORD. I do not think I am 70 percent of the crimes so if there is a Given that acknowledgment, I again going to change a whole lot of votes in habitual offender who commits repeat asked her why she came to a contrary what I say, but I do think it is impor- crimes, they ought to be taken off the conclusion. I asked her if she stood by tant for the Senate to understand that streets. Here there was one, and the her decision, even though her two col- voting against Judge Helene White is Supreme Court of Michigan said the leagues who participated in the case not a matter that is done lightly or treatment should have been for a ha- with her on the Michigan Court of Ap- without cause. There ought to be a bitual offender. Judge White didn’t peals disagreed and the Supreme Court statement as to why. treat it that way, and she didn’t have had denied appeal, and she responded Well, back to the case of People v. any justification for why she didn’t that she stood by her original judg- Ryan. Quite frequently there is a Fed- treat it that way, and she didn’t ex- ment, without providing any legal rea- eral investigation and a State prosecu- plain the logic of her reasoning. soning to justify that conclusion. tion. It happens all the time. It was As delineated in the very extensive I asked Judge White about another very commonplace when I was district floor statement, which I have already case, captioned People v. Ryan. She attorney of Philadelphia. That scenario had printed in the RECORD, we were not participated in the decision affirming is certainly not the basis for saying it given a great many of Judge White’s the dismissal of a drug dealer’s convic- is vindictive or out of order. For one opinions. It was very difficult—really tion. The conviction had been reversed. reason or another, it is better suited to impossible—to calculate her reversal The circumstances were that the de- pursue the State court. If a State law rate when we didn’t have those opin- fendant was arrested by Federal agents is violated, you can do it that way. ions. Based on the opinions we have,

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5997 her reversal rate was in excess of 6 per- We have had some very troubled ‘‘Senator Leahy and I are going to do every- cent, much higher than Judge Robert times on this Senate floor, and that thing we can to approve three circuit court Conrad’s reversal rate—2 cases out of kind of infighting and partisanship is judges by Memorial Day. . . . Who knows, we 175, or about 1 percent. The national may even get lucky and get more than that. something which does not add to the We have a number of people from whom to average is at 8.6 percent; however, luster of the Senate as the world’s choose.’’ Judge Boyle from North Carolina, who greatest deliberative body. We have The same day as the Majority’s commit- was rejected by the Democrats based seen very bitter disputes on this Sen- ment, the White House reached an agree- on his high reversal rate, had a rever- ate floor. The Republican majority, in ment with the Senators from Michigan on sal rate which was lower than Judge my opinion, did not act properly on nominations to the Sixth Circuit, which White’s. And I repeat, we still don’t President Clinton’s nominees when the broke a decade-long impasse. The impasse began in 1997, when President Clinton first know what her reversal rate is. We Republicans controlled the Senate and don’t know what her reversal rate is nominated Judge Helene White to a seat on the President was a Democrat. I said so the Sixth Circuit. The Senate did not act on because we had a great many unpub- on the floor at that time and voted for Judge White’s nomination prior the end of lished opinions that were reversed on President Clinton’s qualified nominees. the Clinton Administration, and as a result, appeal that we did not have an oppor- When we had the battle over fili- there has been an ongoing feud between the tunity to examine because they were buster versus the so-called nuclear con- Michigan Senators and the White House, not provided to us. stitutional option, the tradition of this which led to numerous filibusters of Sixth Just a couple of comments in conclu- body was strained to the utmost, and Circuit nominees in 2003 and 2004, and left sion. It is my hope that we will yet re- the Sixth Circuit with an understaffed court we dodged that bullet or cannon or nu- for over ten years. The April 15th agreement turn to some basic comity and have a clear bomb. So, it is my hope that Sen- respectable number of confirmations of between the White House and the Michigan ator LEAHY and I can take the lead, as Federal judges this year. The statistics Senators specified that the White House we have in the past. He is the chair- would withdraw the nomination of Mr. Ste- show that President Clinton had a sig- man; I am the ranking member. The phen Murphy to the Sixth Circuit and would nificantly larger number of circuit roles have been reversed. We have a lot instead nominate Judge White to that seat. judges and district court judges con- of role reversals around here. When In return, the Michigan Senators would re- firmed than President Bush has had in turn their blue slips on Mr. Raymond the last 2 years. Further, President PAT LEAHY and ARLEN SPECTER passed Kethledge, another Sixth Circuit nominee Clinton’s overall confirmation numbers the gavel, it was a seamless passing of who has been blocked for over 700 days, and are higher than President Bush’s. the gavel. We are not going to fili- Judge White. Mr. Murphy was nominated to President Clinton had 65 circuit judges buster Judge White. I am going to vote a Michigan district court seat instead, and and 305 district court judges confirmed, against her for the reasons I have given the Michigan Senators agreed to return blue slips on his nomination. while President Bush has had only 59 here, and more detailed in my state- ment. I have not campaigned against On April 29th, when it became clear that circuit judges and 244 district judges the Majority intended to include the recent confirmed. We have heard several dis- her. I think the matter is up for every nomination of Judge White in the promised cussions about the so-called ‘‘Thur- individual Senator to judge. My expec- ‘‘three circuit court nominees confirmed by mond rule’’—that is a rule which has tation is that she will be confirmed. I Memorial Day deal,’’ Senator McConnell and been commented upon which, when think there may well be a fair number I sent a letter to Senators Reid and Leahy analyzed, has no real substance. During of votes against her, but I haven’t advising them of the logistical impossibility President Clinton’s Administration, counted the votes. But, I think the im- of confirming Judge White by Memorial Day. In the letter, we noted the numerous ‘‘time- Chairman LEAHY commented that the portant thing is that we have an up- and-down vote, and that we not have a consuming steps in the judicial confirmation so-called ‘‘Thurmond rule’’ was a process’’ and expressed our concern that ‘‘myth,’’ and then he proceeded to filibuster. We have waiting in the ‘‘[g]iven these standard prerequisites and specify a great many judges who had wings the judge from North Carolina, Judge Helene White’s recent nomination been confirmed late in past Presidents’ Judge Conrad, and the man from South date of April 15, 2008, we do not believe reg- terms. Carolina, also nominated to the Fourth ular order and process will allow for her con- Upon examination, we find that the Circuit. I hope we move on these nomi- firmation prior to May 23, 2008.’’ We further facts are that in the last 2 years of nees. observed the ABA rating for Judge White Presidents’ terms, there have been I also have written to my colleagues was not likely to be completed in time, given many judicial confirmations. In 1988, who are not returning blue slips on the ABA’s standard timeframe for com- pleting ratings, and noted that the ‘‘Demo- President Reagan’s last year in office, nominees from New Jersey and from cratic Majority has placed particular impor- the Senate confirmed 7 circuit nomi- Maryland and from Rhode Island. I tance [on the ABA rating] over the years.’’ nees and 33 district court nominees. In have talked to them and urged them to In fact, the Judiciary Committee has never 1992, President George H.W. Bush’s last return their blue slips, urging that we held a hearing for a circuit court nominee year, the Senate confirmed 11 circuit not maintain vacancies in anticipation prior to receiving his or her ABA rating. nominees and 53 district court nomi- of the election results. But, essentially, On May 7th, a mere 22 days after her nomi- nees. In 2000, President Clinton’s last it is my hope that we can move ahead nation, the Committee held a hearing on year in office, the Senate confirmed 8 in a way that is in the tradition of the Judge White. Twenty-two days is a very short period of time to evaluate any circuit circuit nominees and 31 district court Senate and to discharge our constitu- court nominee’s record, but this expedited nominees. tional responsibilities with up-or-down confirmation process was even more trou- The Thurmond rule allegedly arose votes. bling in the case of Judge White. Judge when the issue about the confirmation Mr. President, I now ask unanimous White has been a state court judge her entire of judicial nominees came up near the consent that my full statement be career and has participated in over 4500 cases end of President Carter’s term in of- printed in the RECORD. on the Michigan Court of Appeals alone. It fice. But, an examination of the facts There being no objection, the mate- has been eight years since her last nomina- shows that nominations were not being rial was ordered to be printed in the tion was pending, and in that time period, blocked. In fact, by today’s standards, she likely participated in over 2000 cases in RECORD, as follows: addition to the 2500 she participated in be- the end of President Carter’s term was SENATOR ARLEN SPECTER, FLOOR STATEMENT, fore 1997. That is quite a record to go a rather remarkable situation. Presi- NOMINATION OF JUDGE HELENE WHITE TO through in just 22 days. dent Carter nominated Steven Breyer THE SIXTH CIRCUIT COURT OF APPEALS As is standard Committee procedure, ques- to be a court of appeals judge for the I have sought recognition to discuss the tions were submitted to both Judge White First Circuit on November 13, 1980, nomination of Judge Helene White to the and Mr. Kethledge after their hearing. Re- after President Carter had lost the United States Court of Appeals for the Sixth publicans were criticized for submitting election to President Reagan. We talk Circuit, but before I discuss the merits of her these initial questions even though they sub- about the fights over circuit judges nomination, I’d like to remind the members mitted a total of only 73 questions to Judge White, which is no more than other circuit now. The election was gone. We had a of this Committee of the history behind this nomination. court nominees have received from Demo- new President. But, the Senate con- On April 15, 2008, Majority Leader Reid and crats. In fact, several recent Bush appellate firmed Steven Breyer to the First Cir- Chairman Leahy committed to confirming at nominees and a Department of Justice nomi- cuit, and history shows that he later least three more circuit court nominees by nee have received more questions from became a U.S. Supreme Court Justice. the Memorial Day recess. Senator Reid said: Democrats than Judge White received from

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5998 CONGRESSIONAL RECORD — SENATE June 24, 2008 Republicans. Democrats submitted 108 ques- Senate action for months longer than Judge then continued that ‘‘in Michigan, to be re- tions for Judge Jennifer Elrod, a 5th Circuit White. Once again Senator Reid disregarded sponsible for the principle offense, one has to nominee, 80 questions for Judge Leslie his prior commitment not to discriminate either share the intent to commit the prin- Southwick, another 5th Circuit nominee, and against states with Republican delegations, cipal offense or provide aid and support with 250 questions for Grace Becker, a nominee to breaking yet another commitment. knowledge that the principal offense was the Civil Rights Division of the Department Now, I’d like to turn to Judge White’s going to be committed.’’ Given that ac- of Justice. In addition, the Committee had qualifications. Providing advice and consent knowledgement, I again asked her why she more time to evaluate these other nominees’ on judicial nominees is one of the most im- came to the conclusion that the defendant records prior to their hearings. Contrasted portant duties of a United States Senator. I was not guilty of aiding and abetting. Again, with the mere 22 days the Committee had to take my role in the confirmation process she could not explain her legal reasoning in evaluate Judge White’s record, the Com- very seriously, and I have serious concerns the case. I asked her if she stood by her deci- mittee had 112 days to evaluate Judge about Judge White’s qualifications to be a sion even though her two colleagues who Elrod’s record between her nomination and judge on the Sixth Circuit Court of Appeals. participated in the case and heard the same her hearing, 121 days for Judge Southwick, Except for the two years she spent clerking set of facts disagreed with her and the Su- and 117 days for Ms. Becker. I believe these for a Michigan State Supreme Court judge, preme Court had denied appeal, and she re- questions for Judge White were particularly Judge White has been a state court judge her sponded that she did. warranted given the expedited hearing sched- entire career. She has never litigated a case, In another case, People v. Ryan, Judge ule for her nomination. Both nominees’ re- she has never handled clients, and she has White participated in a decision affirming turned their answers by Wednesday, May had extremely limited experience with fed- the dismissal of a drug dealer’s conviction, 21st, three days before the end of the session, eral law as a state court judge. and the Supreme Court reversed that deci- negating the proposition that Republicans’ While this lack of certain legal experience sion and reinstated the conviction. In this questions slowed these nominations. by a circuit court nominee certainly would case, the defendant was arrested by federal As Senator McConnell and I predicted, the not immediately disqualify the candidate agents, but was charged and convicted in ABA did not issue its rating for Judge White from holding a federal appellate position, State court. The defendant argued that the prior to the Memorial Day recess, and the given the short time frame the Senate has decision to pursue a State prosecution rather Committee was unable to complete its work had to consider Judge White’s record, these than a federal prosecution was vindictive. on her nomination prior to the recess. factors are significant in her case. She had a The panel on which Judge White sat found The Majority did not fulfill its commit- very limited opportunity to demonstrate her that the trial court’s determination that ment to confirm three more circuit court ability to handle her docket and the com- there was vindictive conduct was not clearly nominees by Memorial Day because they plicated legal issues that face a federal ap- erroneous. The Supreme Court reversed stat- chose to expedite the confirmation of a re- pellate court judge. ing: ‘‘The mere threat to refer the case for cently submitted circuit court nominee rath- Given her lack of experience with federal State prosecution does not amount to objec- er than acting on any of the other out- law, Judge White was questioned about the tive evidence of hostile motive.’’ After recit- standing circuit court nominees currently types of federal issues that she has handled ing these facts to her, I asked Judge White if pending in Committee whose paperwork has and was asked to articulate her under- she stood by her opinion given that the only been complete for months or even years standing of some common federal legal prin- evidence of vindictiveness was that Federal longer than Judge White’s. ciples. She repeatedly responded that she DEA authorities turned the matter over to The failed Memorial Day commitment is had not dealt with these issues and was un- State prosecutors, which is a very common not the first time the Majority has not ful- able even to discuss some common federal practice. In response Judge White cited her filled expectations. At the beginning of this legal issues and the cases addressing them. unfamiliarity with the case and deferred to Congress in February 2007, Senator Reid At her hearing, I also asked Judge White the Supreme Court’s holding rather than an- stated: ‘‘[W]e are going to do our very best to several questions about decisions that she swering my question. She stated that ‘‘be- make sure this is not our last circuit court had participated in on the Michigan Court of cause the Supreme Court reversed, it meant judge [confirmation] but the first of a sig- Appeals that were reversed by the Michigan that I among others, got it wrong. . . . I nificant number who can at least meet the Supreme Court. She repeatedly stated that stand by the Supreme Court.’’ I was con- standards of Congresses similarly situated as she was unfamiliar with the cases and did cerned by her stated unfamiliarity with the ours.’’ During the last 20 years, on average, not recall the factual scenarios or her legal case because this was a case Judge White had the Senate has confirmed 17 circuit court reasoning. Even after I had given her the rel- cited in her questionnaire for which she had nominees in the final two years of a presi- evant facts of the cases, she was unable even provided a summary. I was equally con- dent’s term, and in President Clinton’s final to articulate her legal analysis or reasoning cerned that she deflected my question about two years in office, the Senate confirmed 15 process. My questions about her cases were whether she stood by her opinion. circuit court nominees. Since Senator Reid not designed to be ‘‘gotcha’’ questions; the I next turned to another case Judge White made that statement in February of last cases I mentioned were all specifically listed had summarized in her questionnaire cap- year, this Senate has confirmed only 8 cir- in Judge White’s Senate questionnaire that tioned People v. Thomas. I detailed the facts cuit court nominees, less than half of the she provided the Committee on April 25, just of the case to Judge White, which included historical average, and the Majority has inti- 12 days prior to her hearing. Further, for the conviction of a drug dealer who was mated that they may not process any more three of the cases, she had provided the Com- charged with second-degree murder and was circuit court nominees this year. Hence, Sen- mittee with short summaries of the facts and found guilty by a jury of voluntary man- ator Reid’s February statement was the first holdings in her questionnaire. At the very slaughter, carrying a concealed weapon, and of many unfulfilled commitments. least, I thought she would be familiar with felony firearm. I asked her whether she stood Second, in his announcement of the deal, the cases she apparently had reviewed re- by her decision to reverse the conviction of Senator Reid acknowledged the fundamental cently in order to provide the Committee this gang member when the Michigan Su- unfairness of discriminating against circuit with those summaries. preme Court had subsequently overturned court nominees from states with two Repub- In one case upon which I questioned Judge her panel’s opinion. Once again she deferred lican Senators in favor of nominees from White, People v. Santiago, she dissented to the opinion of the Supreme Court and states with Democratic delegations or mixed from her colleagues’ opinion upholding a stated ‘‘I stand by the judgment of the Su- delegations. He stated: ‘‘[W]e have a number jury conviction of a defendant for first de- preme Court.’’ I told her I knew the Supreme of places from which the Judiciary Com- gree felony murder and armed robbery. In Court had the final word, but I wanted to mittee can move matters to the floor. We this case, the defendant had driven the two know whether she thought the Supreme have North Carolina, South Carolina, Rhode other defendants to the house where the rob- Court’s decision was right. She again stated Island, Maryland . . . Pennsylvania. . . . Vir- bery and murder were committed, knowing that she ‘‘accept[ed] the conclusion of the ginia. . . . Maryland. We have a wide range that the defendants intended to rob and like- Supreme Court.’’ She did not answer my to choose from. . . . [N]o, it should not be be- ly kill the victim—a classic example of aid- question. I wanted to evaluate her judgment, cause you have two from the same party ing and abetting. When I asked her about her but she would not answer whether she from one State and they are not our party; dissent which held that the defendant was thought her opinion was right or wrong. that should not cause them not to have their not guilty of aiding and abetting, she could I also asked her about a Court of Appeals’ nominee approved. . . . I think if you have not explain why her decision deviated from opinion in which she participated that re- two Senators from the same party, they the legal standards for aiding and abetting, versed a sentence for a defendant who was a should not be discriminated against. I men- as enunciated by the majority opinion and as habitual criminal offender, People v. tioned their names. Their names are Mat- affirmed by the Michigan Supreme Court Hansford. Again, this was an opinion that thews and Conrad.’’ Notwithstanding this ac- when they denied appeal. I specifically asked was reversed on appeal by the Michigan Su- knowledgment, the Majority insisted on pro- her if it was ‘‘standard, clear-cut law that preme Court and was a third case she had ceeding with Judge White and Mr. Kethledge when somebody drives a co-defendant to a summarized in her questionnaire. After read- rather than moving to other exceptional cir- place where there is a robbery and a murder, ing her the defendant’s extensive criminal cuit court nominees from states with Repub- that kind of assistance constitutes guilt on record, which included several counts of lar- lican Senators such as Steve Matthews of the part of the co-conspirator, accessory be- ceny and attempted larceny, receiving and South Carolina and Robert Conrad of North fore the fact?’’ She responded first that she concealing stolen property, fleeing and al- Carolina who had been ready and waiting for ‘‘went to law school in Pennsylvania,’’ but luding, and violations of probation, I noted

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5999 that habitual offender statutes are designed relatively high reversal rate. A review of submitted 80 questions for Judge Leslie to take habitual offenders off the streets, Judge White’s opinions that are available Southwick, 5th Circuit. and I asked her what her reasoning was for publicly reveals that 6.7% of her cases have And, the Committee had more time to determining that a man with an extensive been reversed by the Michigan Supreme evaluate these other nominees’ records prior criminal record such as the defendant did Court. That is a pretty high percentage of to their hearings. Days from nomination to not deserve to be off the streets for life. Once cases. Further, Judge White’s reversal rate hearing: White: 22 days; Elrod: 112 days; and again, she claimed not to be familiar with may be much higher, but we cannot deter- Southwick: 121 days. the case. She further stated that she mine her actual reversal rate because Judge Judge White has already submitted her an- ‘‘accept[ed] the Supreme Court’s decision White still has not provided the Committee swers to the Committee, proving that no ...’’ and ‘‘accept[ed] that the sentence was with all of her unpublished opinions that delay by Republicans occurred. The delay is appropriate . . . because the Supreme Court were reversed on appeal. As comparison, due to the importance Democrats’ have has said it is appropriate.’’ I again asked her Democrats objected to the nomination of placed on the ABA rating. In 2001, Senator whether or not she thought her decision was Judge Terrence Boyle to the Fourth Circuit Leahy stated: ‘‘Here is the bottom line. correct in light of the Michigan Supreme when his reversal rate was 6.2%. There will be an ABA background check be- Court’s reversal, and she said ‘‘I have to have I am troubled by some of Judge White’s de- fore there is a vote.’’ Senator Leahy reiter- been wrong . . . The Supreme Court re- cisions that were reversed on appeal, but I ated this pledge at Judge White’s hearing. Judge White’s nomination has only been versed. I was wrong. The Supreme Court re- am more concerned about her inability to ar- pending for 37 days. Meanwhile, Mr. Peter versed.’’ ticulate her legal analysis and reasoning Keisler, D.C. Circuit, has waited 693 days for In her answer to my question about the ha- process in these cases and her lack of experi- a Committee vote, Judge Robert Conrad, 4th bitual offender, Judge White also noted that ence with complex federal issues. I am also Circuit, has waited 310 days for a hearing, the vast majority of her court’s opinions are concerned that Judge White has not provided and Mr. Steve Matthews, 4th Circuit, has unpublished. At her hearing, I expressed con- the Committee with a complete record of her waited 259 days for a hearing. cern about how many of her opinions were judicial opinions upon which we could evalu- unpublished. I am also concerned that copies ate her qualifications for this prestigious po- Mr. SPECTER. My final comment, if of a number of her opinions that were re- sition. I may make it while the chairman is on versed on appeal were not provided to the Given the brief period of time I had to re- the floor, is that we do have some Committee prior to her hearing as required. view Judge White’s opinions, her apparent other Senators who wish to speak. Question 15(d) of the Committee Question- unfamiliarity with her own opinions, her in- Well, I have just been advised that we naire specifically asks for ‘‘a list of and cop- ability to articulate her legal reasoning and don’t have Senators who wish to speak. ies of any of [the nominee’s] unpublished analysis in those opinions, and her failure to Apparently, Senator LEAHY, your com- opinions that were reversed on appeal or provide the Committee with important ele- where [the nominee’s] judgment was af- ments of her judicial record prior to her ments about an early conclusion were firmed with significant criticism of [the] hearing, I plan to vote against her confirma- much more persuasive than mine. substantive or procedural rulings;’’ however, tion to the Sixth Circuit. Mr. LEAHY. Mr. President, if the Judge White only provided the Committee NEEDLESS RUSH TO JUDGMENT ON JUDGE Senator will yield for a moment, when with copies of 23 cases that were unpublished WHITE the Senator from Pennsylvania is fin- and reversed on appeal. Three of the cases ished, I know Senator LEVIN and Sen- about which I questioned her were listed A Republican Senate confirmed 15 circuit elsewhere in her questionnaire, but were not court judges and 57 district court judges in ator STABENOW wished to speak very included in those 23 cases that she provided President Clinton’s final two years. Thus far briefly. If that was the case, I hope to the Committee and clearly fit into the in this Congress, the Senate has confirmed that maybe within the next 10 minutes category of cases she should have provided. only 8 of President Bush’s circuit court or so, or that by 6:30, or at 6:30, that The Committee and the full Senate cannot nominees and 38 district court nominees. perhaps what we can do is this: Let’s properly evaluate a nominee’s record if it President Bush is also far behind President say at 6:30, if the Senator from Penn- Clinton in total confirmations when con- does not have key elements of that record. I sylvania would agree that we might would have liked to have had access to all of trasting their entire terms. President Clin- Judge White’s opinions that were reversed ton had 65 circuit court and 305 district court vote at 6:30, then under the previous prior to her hearing so that they could have judges confirmed, while President Bush has unanimous consent, if Judge White is been analyzed and used as the basis for ques- so far had only 59 circuit and 241 district confirmed, assuming she is, but if she tioning. court judges confirmed. is under the unanimous consent, then In follow up questions after her hearing, I There are a total of 32 judicial nominees the regular order would be to go to the asked Judge White to provide those missing currently pending in the Judiciary Com- other two nominees from Michigan. It cases and to explain why she did not provide mittee: 11 Circuit Court vacancies with 10 would be my intent—unless somebody them initially. She responded to my question nominees; 36 District Court vacancies with 22 by saying it was an ‘‘oversight’’ that she did nominees. objected—it would be my intent to do not include them initially and further stated Judge Helene White was nominated on those by voice vote. That, of course, is that she can only provide the Committee April 15. Her Judiciary Committee question- contingent upon her being confirmed with a ‘‘partial list of cases in which [she] naire was received on April 25, and the Mi- under the unanimous consent agree- participated . . . which were reversed’’ be- nority did not receive her FBI report until ment that I have been shown. Would cause the method the Michigan Court of Ap- April 29. Her hearing was held on May 7. Re- that be acceptable? peals employs to catalogue cases makes it sponses to Judge White’s questions for the Mr. SPECTER. Mr. President, that is difficult to locate those cases. She only pro- record following her hearing were received acceptable to this side of the aisle. I vided the Committee with an additional 11 yesterday. cases that were reversed on appeal. I find The mere 22 days that elapsed between think it is an illustration of how the this response deeply troubling for a number nomination date and hearing is a far shorter Senate can conduct its business in an of reasons. First, appellate judges should be period of time than is typical for the Com- expeditious way. We started on a 4- held to the highest standards of competence. mittee to perform its standard review of a hour time agreement at 5:15. We are 54 ‘‘Oversights’’ by a judge can lead to defend- circuit court nominee’s record. The average minutes into the 4 hours, and we will ants being wrongly convicted, criminals for Bush’s circuit court nominees has been conclude with a 2-hour-and-45-minute being set free, or wronged litigants not re- 162 days between nomination and hearing. savings. Let this be an example for the ceiving justice. Attention to detail and thor- The American Bar Association has still not balance of the confirmation process oughness are critical qualities in an appel- completed its rating of Judge White. The late judge. Second, nominees to the federal Committee has never held a hearing for a and other Senate work. courts who have served as judges should pro- circuit court nominee prior to receiving I yield the floor. vide all of the opinions they participated in their ABA rating. Mr. HATCH. Mr. President, I will that were reversed on appeal or, at least, Democrats have accused Republicans of vote for all of the Judicial nominees demonstrate a reasonably robust effort to do stalling the two sixth circuit nominees. Sen- before us today. I want to offer a few so. Democrats have required prior appellate ator Reid: ‘‘Senators on the Republican side comments about one of them and also court nominees to provide substantial num- on the Judiciary Committee have delayed about the current state of the judicial bers of their unpublished opinions in addi- consideration of Judge White. . . . following confirmation process. tion to the ones that were reversed on ap- the hearing, [they] asked a total of 73 sepa- The Constitution gives authority to peal. I recall one judge being asked to go to rate written questions’’ nominate and appoint judges to the a depository in another state to retrieve cop- In fact, Judge White did not receive more ies of unpublished opinions. Judges should questions than other recent circuit court President, not to the Senate. make every reasonable effort to provide all nominees: Republicans submitted 73 ques- The Senate’s role is to check the of their opinions that were reversed on ap- tions for Judge Helene White, 6th Circuit; President’s power, to ensure that his peal, not merely the ones that are easily ac- Democrats submitted 108 questions for Judge nominees are not crooks, cronies, or cessible. I am also troubled by Judge White’s Jennifer Elrod, 5th Circuit; and Democrats corrupt.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6000 CONGRESSIONAL RECORD — SENATE June 24, 2008 Too often in relent years, however, To her credit, Judge White flatly re- qualifications. The distinguished rank- Senators have tried to push our role jected that activist view of a judge’s ing member, Senator SPECTER, and oth- beyond merely checking the Presi- role. ers are detailing some of those con- dent’s power to actually highjacking I wanted to share these thoughts cerns on the floor today. the President’s power. with my colleagues because some have Some of my friends on the other side That goes too far and undermines the questioned whether Judge White is the have responded that this nomination separation of powers which is so crit- kind of judge President Bush has said has really been pending for 11 years ical to limit government power and to he would appoint. and that we should somehow already keep our system of government in bal- She was, after all, first nominated to know enough to fill in the blanks and ance. the Sixth Circuit by President Clinton resolve the doubts. For this reason, my perspective on whose nominees generally embraced a That is ridiculous. the judicial confirmation process be- more activist judicial philosophy. I have served in this body and on the gins with substantial deference to the President Bush is the first, at least Judiciary Committee for 32 years. I President, no matter which party occu- during my Senate tenure, to resubmit know of no Senator who keeps tabs on pies the While House or has the Senate an appeals court nominee first offered the careers, accomplishments, and majority. by a President of the other party. record of unconfirmed nominees from For this reason, I have voted against President Clinton certainly did not previous administrations on the off and worked to eliminate filibusters do that. chance that they might some day be used to defeat majority-supported judi- But the Constitution gives each renominated. cial nominees. President the authority to make that We must evaluate each nominee on And for this reason, I have voted judgment and I have always believed the current record developed through against very few nominees during my that there is a high bar for the Senate the current process. 32 years in this body and on the Judici- to withhold its consent on the basis of And on the question of qualifications, ary Committee. judicial philosophy. that record satisfies but certainly does From that perspective of deference, I That perspective of deference and her not excite me. then look at a nominee’s judicial phi- answers to questions like the ones I de- I respect the judgment of colleagues, losophy and qualifications. scribed satisfy me on this point. especially on this side of the aisle, who Applying these criteria, my decision Let me turn to the question of quali- look at these and other issues and con- to support two of the nominees before fications. clude that they cannot support Judge us today, Raymond Kethledge to the The American Bar Associations rat- White. Voting against a nominee of Sixth Circuit and Stephen Murphy to ing of judicial nominees is more impor- your own party is a significant step. the Eastern District of Michigan, was tant for some than for others. There are Senators on the other side easy. My friends on the other side have who have served here even longer than My decision to support Judge Helene consistently said the ABA rating is the I have who have never voted against a White’s nomination to the Sixth Cir- gold standard for evaluating judicial nominee of their party. cuit, however, was a much closer call. nominees. Each of us might make that judg- Frankly, I have always believed that I take that back. ment for ourselves and, though it is in- a President has the right to appoint They have called the ABA rating the deed a closer call than I would like, I judges who reflect his or her judicial gold standard until they want to ob- will vote to confirm Judge White. philosophy. struct nominees who have received Before I conclude, I want to make a I asked Judge White detailed ques- even the highest rating. few observations about the judicial tions designed to explore her judicial Judge White’s ABA rating in 2008 is confirmation profess with regard to philosophy, her understanding of the higher than it is in 1997, when she was Judge White’s nomination in particular proper role of Federal appellate judges first nominated to the Sixth Circuit. and judicial nominations in general. in our system of government. At that time, some members of the When I chaired the Judiciary Com- I want to share a few of her responses ABA evaluation committee thought mittee during the previous administra- with my colleagues. she was not qualified at all. tion, Judge White’s nomination did not I asked Judge White to comment on This time, a majority of the evalua- receive a hearing because she lacked the notion that judges must make deci- tion committee found her well quali- support from her home State Senator sions based on the law as enacted by fied and no one thought her unquali- who served on the Judiciary Com- the people and their elected represent- fied. mittee at the time. atives, even if they personally disagree It is a little surprising, however, that Similarly, Sixth Circuit nominees of with it. after 26 years as a State court judge, 15 the current President, including Mr. Judge White agreed with this whole- of them on the appellate bench, Judge Kethledge who is before us today, did heartedly, staying that judges ‘‘should White still has not garnered a unani- not receive a hearing because they too be prepared to have no constituency mous well qualified rating from the lacked home State Senator support. except the law.’’ ABA. I am certainly glad that this issue I realize this is straight out of civics In fact, Raymond Kethledge, the has been resolve with our distinguished 101, but there are many today who be- other Sixth Circuit nominee before us colleagues from Michigan so that these lieve judges may twist and shape the today, received a higher ABA rating nominees can move forward. Constitution and statutes into any than Judge White and he has no judi- But I remain baffled why my fol- form they please in order to achieve re- cial experience at all. lowing that longstanding policy is sults they desire. Judge White has never litigated a today attacked as a so-called pocket In fact, some ray colleagues on the case. She has never handled clients. filibuster while the current chairman other side of the aisle have said judges She has virtually no experience with following that policy is praised for an must take sides, that they must favor Federal law issues of any kind. exercise in senatorial courtesy. certain ideological interests and serve There have been serious concerns That is one of number of baffling and certain political constituencies. about her ability to manage her cur- frustrating futures of the current judi- I also asked Judge White whether rent docket, let alone the far busier cial confirmation process. judges may decide cases based on their and more complex docket she would There have been seven previous Con- personal views, sense of justice, empa- face on the Federal bench. gresses during my service here that in- thy, or experience. Perhaps these dare some of the issues cluded a presidential election year. It would be difficult to come up with that kept the ABA evaluators from giv- During an average of 313 days in ses- a more misguided and even dangerous ing her the highest rating. sion, 25 appeals court nominees re- role for unelected judges in our system Unfortunately, Judge White did not ceived a hearing and 20 appeals court of government, but some of my friends distinguish herself in her hearing and nominees were confirmed. on the other side of the aisle have en- offered the committee little to offset Using that as our benchmark, in the dorsed that approach. these and other concerns about her current 110th Congress, we are nearly

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6001 90 percent finished with our days in Clinton in 1999 for a seat on the Sixth munity and of community organiza- session but so far less than one-third as Circuit Court of Appeals. Kathy tions including COTS, Coalition on many appeals court nominees have re- McCree Lewis passed away last year. Temporary Shelter; JVS, Jewish Voca- ceived a hearing and only half as any She never had her hearing and oppor- tional Services; and the Metropolitan have been confirmed. tunity to be voted on by the Senate. Detroit Young Women’s Christian As- It does not have to be this way, it has She was dedicated to her profession sociation. She should be a consensus not been this way in the past. and to her family. While she is no confirmation. I hope that when the nominees before longer with us, we remember her Oddly, Republican attacks on Judge us today ire confirmed, we will turn today. White have focused on what they term our attention to the others who are The seat that Judge White is being a lack of experience. Somehow, some- pending some for many months and nominated for on the Sixth Circuit is one who has been a respected appellate even for years, and continue doing the same seat that was held by a won- judge for 15 years, who has served as a what the American people sent us here derful woman, Judge Susan Bieke Neil- judge for well over 25 years, and who to do. son. She held that seat for a tragically the ABA rates as well qualified for the I yield the floor. short period of 2 months. This vote is Federal circuit court , is in their view Mr. LEAHY. Mr. President, I yield 5 also a vote to Judge Neilson. Her hus- not ‘‘experienced’’ enough to be a Fed- minutes to the senior Senator from band, Jeffrey Neilson, wrote Chairman eral appellate court judge. Michigan. LEAHY back in April that he believed Some Senators suggested that her The PRESIDING OFFICER (Mr. that Helene White ‘‘will reflect the lack of experience with specific Federal MENENDEZ). The Senator from Michi- best qualities of both Susan and Kath- issues that never come before even the gan is recognized. leen in the performance of her duties, most experienced State judge was a Mr. LEVIN. Mr. President, we are so that although death has precluded problem. They ignore the fact that nearing the end, I hope, of what is sure- their presence on the Sixth Circuit, judges always have to learn new areas ly one of the longest judicial nomina- they will be there in spirit. of the law as new cases come before tion sagas in U.S. history. Judge White Finally, I thank Chairman LEAHY them, and no one is better prepared to was previously nominated by President and our Democratic leader, HARRY do that than an experienced jurist like Clinton for a vacancy on the Sixth Cir- REID, for all they have done to make it Judge White. cuit of the Court of Appeals starting in possible that we can finally, hopefully, Indeed, Mr. Kethledge, President 1997. Her nomination was returned to resolve this Michigan issue that has the President without a hearing. An- Bush’s youthful nominee to the other been stymied in the Sixth Circuit and vacancy on the Sixth Circuit, was gra- other nominee of President Clinton was Eastern District for far too long, with also returned without a hearing. That cious enough to concede at the hearing a bipartisan resolution the President that he, too, lacked experience in the was the nomination of Kathleen has sent us on these three nominees McCree Lewis in 1999. same specific areas of Federal law. Yet with his full support in the Senate. his qualifications have not been in Judge White has been serving as a I hope the Senate will give an over- called into question by Republican judge on the Court of Appeals of Michi- whelming vote to Judge White but also Senators. Judge White has served as a gan since 1993, and I believe she has then adopt a voice vote for the other Michigan State appellate court judge participated in more than 4,000 deci- two nominees. sions. Before that, she served as a Mr. LEAHY. Mr. President, I had longer than Mr. Kethledge has been out judge on the Wayne County Circuit hoped that before the Senate we not of law school, but some are questioning Court from 1983 to 1993, and that is would hear unfair criticism leveled at her experience while embracing his rel- Michigan’s top trial court. Judge Judge White. Last month, Senator atively lack of experience. White, as have our other nominees, has BROWNBACK publicly apologized for his With these criticisms, Republicans been given a ‘‘well-qualified’’ rating by actions at her confirmation hearing, risk turning back the clock to before the American Bar Association’s stand- and I commended him for doing so. the confirmation of Justice Sandra ing committee, and President Bush has After Judge White answered the scores Day O’Connor, who herself had been a called Judge White ‘‘an experienced of time-consuming questions Repub- State legislator and State judge. Jus- and highly qualified judge who is licans sent to her and the committee tice O’Connor was not experienced in known for her intellect, work ethic, had received the updated ABA ratings deciding Federal law issues before her and demeanor.’’ emphasized so much by Republicans in confirmation as the first female justice The second nominee for the Sixth connection with these nominations, I of the U.S. Supreme Court. I think we Circuit is Raymond Kethledge, cur- hoped we could move forward with this can agree that she nonetheless served rently a partner at the Bush, Seyferth in a consensus fashion. It is dis- the Nation well in that capacity. firm in Detroit, MI. Before joining that appointing that some still seem bent Should we conclude from the Repub- firm, Mr. Kethledge was a law clerk to on grasping at straws to criticize Judge lic attacks that no State court judge Justice Anthony Kennedy on the U.S. White, applying a different standard can be confirmed to sit on a Federal Supreme Court and earlier clerked for from that which they used to evaluate court? Certainly Jennifer Elrod, a a judge well known to those of us in other Bush judicial nominees. State court judge with far less experi- Michigan, beloved Judge Ralph Guy of Judge Helene White has served on the ence than Judge White, who the Senate the U.S. Court of Appeals for the Sixth Michigan Court of Appeals for the past confirmed to the Fifth Circuit late last Circuit. Mr. Kethledge also served as 15 years, having been elected by the year, was not held to that standard by judiciary counsel for Senator Spencer people of Michigan in 1992. Before that the Republicans. Indeed, recall what Abraham from 1995 to 1997, and he grad- she served for a dozen years on the Senator CORNYN said about her nomi- uated magna cum laude from the Uni- Wayne County Circuit Court, the Com- nation: ‘‘I would point out that when it versity of Michigan Law School in 1993. mon Pleas Court for the city of De- comes to experience, most of us, when Steven Murphy, who is the nominee troit, and the 36th District Court of we apply for a new job, or a nominee, for the Eastern District position, cur- Michigan. She is described on the Bush have rarely done that job before. So rently serves as U.S. attorney for the White House Web site as ‘‘an experi- the question is not whether you have Eastern District of Michigan. Prior to enced and highly qualified judge, who actually done that job before, it’s his service as U.S. attorney, Mr. MUR- is known for her intellect, work ethic, whether you are likely to do a good PHY was an attorney with the General and demeanor.’’ job, if confirmed.’’ Motors legal staff in Detroit. He Judge White has been now been nom- Others have pointed to a handful worked for the U.S. Department of Jus- inated by Presidents from both parties, cases in which Judge White was on a tice for more than 12 years. by a Democratic President and by a panel decision that was reversed. This I wish to take this opportunity to Republic President. She has served as a handful of cases comes from 4,300 cases recognize the life and the work of Michigan State court judge for more she heard on the bench. These were Kathleen McCree Lewis who, as I men- than 25 years. In addition, she has been cases in which Judge White joined a tioned, was nominated by President active as a member of the legal com- unanimous panel of her court or in one

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6002 CONGRESSIONAL RECORD — SENATE June 24, 2008 instance where she agreed with the rest First, let me say a few words about Mr. CARDIN. Mr. President, I lis- of the court on the law and differed Judge Helene White, who brings 30 tened to Senator SPECTER talk about only on the facts. More to the point, years of legal experience to the Sixth one of our most important responsibil- they were cases of such limited prece- Circuit Court of Appeals. She is a grad- ities; that is, the confirmation process dential value that the decisions were uate of the University of Pennsylvania on the President’s nominations for our not even published. When asked about Law School and the Barnard College at courts, which are lifetime appoint- each case, Judge White testified that Columbia University. Judge White has ments. It is a major responsibility each she accepted the Michigan Supreme been a State judge since 1981. She has of us has in the Senate. Court’s decision as correct. I hope that served on both the 36th District Court I think the way this confirmation in a long career spanning thousands of for the city of Detroit and the Wayne process has proceeded with the three decisions, she will not be judged by a County Circuit Court. Since 1992, she judges before us is an example as to few unremarkable cases. Republicans has served, with distinguished service, how we should be working on the con- have certainly asked us not to focus on on the Michigan Court of Appeals. She firmation of judges. First, I think the a small handful of cases decided by has participated in more than 4,400 process under which the Senators other Bush nominees, even when the cases in her time as a judge on the worked with the White House on the cases in question were far more note- Michigan Court of Appeals. All told, appointments is a model that should be worthy. Judge White will bring more than 25 used, I hope, in more circuits, where Republicans have simply not been years of bench experience to the Sixth there is a real working relationship be- able to point to anything in Judge Circuit. While I support all of our tween the Senators and the White White’s long and distinguished career nominees, Judge White is the only per- House to come up with the best quali- that should disqualify her or even jus- son who brings that judicial experi- fied individuals to serve on the Federal tify a negative vote. It is unfortunate ence, having served on the bench with bench. I congratulate Senators LEVIN that some Republicans seem to be try- distinguished service, someone who is and STABENOW for the manner in which ing so hard to find reasons not to sup- respected by all sides for her intellect, these nominations were brought for- port this particular nominee. her fairness, and her balance. I am so ward. I hope that Republican and Demo- very pleased that we are finally at this Second is the confirmation process cratic Senators will join together to point to be able to vote on this impor- before the Judiciary Committee. I support her nomination and the entire tant nomination. spent a lot of time reading the back- package of Michigan nominations that Secondly, Mr. Raymond Kethledge, grounds on each of our nominees, as President Bush has sent to us after who is also nominated for the Sixth well as the hearing itself. I must tell consultation with Senators LEVIN and Circuit Court of Appeals, graduated you that as a result of reading the STABENOW. magna cum laude from the University background material, as a result of the I yield the floor. confirmation hearings, I am a strong The PRESIDING OFFICER. The jun- of Michigan and the University of supporter of Judge White for her con- ior Senator from Michigan is recog- Michigan Law School. I told him that firmation to the court of appeals. I also nized. even though I went to a rival school— Ms. STABENOW. Mr. President, I Michigan State University—I will sup- support Mr. Kethledge for the court of rise today to join my friend and distin- port his nomination. In fact, my son is appeals. I must tell you, in reading his guished colleague in supporting the a graduate of U of M. I was pleased to background, I was a little concerned nominations of Judge Helene White, see another Wolverine being nominated because he didn’t have any real experi- Mr. Raymond Kethledge to the Sixth for this distinguished position. Fol- ence in writing opinions, didn’t have Circuit Court of Appeals, and Mr. Ste- lowing law school, he served as Senator experience in trying cases, as far as a phen Murphy III to the District Court Spence Abraham’s judiciary counsel. judge is concerned, and there wasn’t for the Eastern District of Michigan. I He then went on to clerk for both much to judge his ability to reason on also want to remember those whom Judge Ralph Guy, on the Sixth Circuit the court of appeals by his background. Senator LEVIN spoke of as well. Court of Appeals, and Justice Kennedy, But I must tell you, after listening to I thank, particularly, Chairman on the Supreme Court, before eventu- the confirmation hearings, I was con- LEAHY for working with us in a very ally becoming a partner at Bush vinced that he is well qualified to serve diligent manner, for his patience, and Seyferth Kethledge & Paige in Troy, on the court of appeals. I am sup- for his commitment and his willingness MI. I am certainly pleased to support porting his nomination. That is what to work with us to move the Presi- his nomination to this position. the confirmation process should be dent’s nominations forward. It has Finally, Mr. Stephen Murphy has about. been a very long process—one that been nominated for a seat on the Dis- I listened to Senator SPECTER have started more than 11 years ago for trict Court for the Eastern District of concerns about Judge White because of Judge Helene White. In fact, I have Michigan. He will bring both academic some of her opinions. I must tell you, I been here for 8 years, and she has been and Federal law experience to the am pleased we have before us a nomi- waiting more than 11 years for this bench. He has taught at the University nee who has the experience to go onto vote—41⁄2 years, originally, to have the of Detroit Mercy School of Law and the the court of appeals or appellate hearing. I find that because of the Ave Maria School of Law in Ann Arbor. courts. Judge White has served 15 years length of time she has been waiting, it He has practiced as both a Federal on the State appellate court. She has is difficult to say that somehow this prosecutor and a defense counsel. He written numerous opinions, has par- was a short-circuited process or a proc- also practiced business litigation as an ticipated in over 4,000 cases, served 12 ess that happened too quickly. It has, attorney for General Motors. Since years on the circuit court in Michigan. in fact, been more than 11 years. I hope 2005, he has served as the U.S. attorney So she has trial court experience as a this serves as an example of how we for the Eastern District of Michigan. judge, and she has appellate court ex- can come together when both sides, I urge my colleagues on both sides of perience as a judge. with the administration, are willing to the aisle to support the President’s Quite frankly, I have been dis- work together in a bipartisan manner. nominees. We have worked hard in a bi- appointed by a lot of the nominees who I am very pleased we have been able to partisan manner. It has taken a long have been brought forward by the come to this agreement together. That time to get to this point, but I am very White House because they have is what we have done here. pleased we are here together sup- brought forward individuals who do not Senator LEVIN and I have worked porting these nominees for the Sixth have experience to go on our second with the Bush administration, and as a Circuit Court of Appeals and the East- highest court. I think experience is im- result, we have the three nominees for ern District of Michigan. I am hopeful portant. I raised those concerns during the Federal bench who are in front of that, very shortly, we will confirm Judge Elrod’s confirmation hearing us. In fact, all three of them were rated each of these nominees. and Judge Haynes’s hearing. I would ‘‘well-qualified’’ by the American Bar I yield the floor. like to have people with more experi- Association. I urge my colleagues to The PRESIDING OFFICER. The Sen- ence so that we can judge their quali- support them. ator from Maryland is recognized. fications.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6003 In Judge White’s case, we have that The PRESIDING OFFICER. All time The PRESIDING OFFICER. The Sen- record, and it is a great one. Has she is yielded back. The question is, Will ator from Vermont. been reversed in her 4,000 decisions? the Senate advise and consent to the Mr. LEAHY. Mr. President, I am sat- Yes. That is why we have appellate nomination of Helene N. White, of isfied with a voice vote on this nomi- courts. But she has never been chal- Michigan, to be United States Circuit nee. lenged as far as her reasoning and her Judge for the Sixth Circuit? The PRESIDING OFFICER. The fairness and her demeanor. In fact, she The clerk will call the roll. question is, Will the Senate advise and has been rated by the American Bar The assistant legislative clerk called consent to the nomination of Raymond Association as ‘‘well-qualified.’’ the roll. M. Kethledge, of Michigan, to be One more thing, Mr. President, as to Mr. DURBIN. I announce that the United States Circuit Judge for the why I strongly support Judge White’s Senator from West Virginia (Mr. Sixth Circuit? confirmation, and that is the manner BYRD), the Senator from Massachusetts The nomination was confirmed. in which she handled the confirmation (Mr. KENNEDY), and the Senator from f hearings. They were not easy hearings. Illinois (Mr. OBAMA) are necessarily ab- NOMINATION OF STEPHEN JOSEPH There were tough questions that were sent. MURPHY III TO BE UNITED asked. She exercised the type of de- Mr. KYL. The following Senators are STATES DISTRICT JUDGE FOR meanor I want to see in our Federal necessarily absent: the Senator from judges. She exercised the type of re- THE EASTERN DISTRICT OF Missouri (Mr. BOND) and the Senator sponse that I think represents the MICHIGAN from Arizona (Mr. MCCAIN). types of qualifications I want to see on The PRESIDING OFFICER. Are there The PRESIDING OFFICER. The our Federal bench. So I am very much any other Senators in the Chamber de- clerk will report Executive Calendar supporting her confirmation. I hope she siring to vote? No. 632. will receive a strong vote on the floor. The assistant legislative clerk read I urge my colleagues to support all The result was announced—yeas 63, the nomination of Stephen Joseph three of the Michigan judges who are nays 32, as follows: Murphy III, of Michigan, to be United before us for confirmation. [Rollcall Vote No. 156 Ex.] States District Judge for the Eastern With that, I yield the floor. YEAS—63 District of Michigan. The PRESIDING OFFICER. The Sen- Akaka Hagel Nelson (FL) ator from Vermont is recognized. Baucus Harkin Nelson (NE) The PRESIDING OFFICER. The Sen- Mr. LEAHY. Mr. President, I appre- Bayh Hatch Pryor ator from Vermont. ciate the comments of my colleagues. Biden Inouye Reed Mr. LEAHY. Mr. President, because Bingaman Isakson Reid of the lateness of the hour, I am willing First, I commend the two Senators Boxer Johnson Rockefeller from Michigan, who spent years work- Brown Kerry Salazar to forgo a rollcall on this nominee and ing out this conclusion for these three Cantwell Klobuchar Sanders a voice vote will be sufficient. Cardin Kohl Schumer The PRESIDING OFFICER. The nominees to be here. I commend Sen- Carper Landrieu Sessions ator LEVIN and Senator STABENOW for Casey Lautenberg Shelby question is, Will the Senate advise and working so hard. Senator CARDIN spent Clinton Leahy Smith consent to the nomination of Stephen so much time at the hearing with me. Coleman Levin Snowe Joseph Murphy III, of Michigan, to be Collins Lieberman Stabenow United States District Judge for the I appreciate the amount of time he Conrad Lincoln Stevens spent there. His words of calm rea- Crapo Lugar Tester Eastern District of Michigan? soning, but with questions that cut Dodd McCaskill Voinovich The nomination was confirmed. right to the importance of the hearing, Dorgan Menendez Warner Mr. LEAHY. Mr. President, I thank Durbin Mikulski Webb were extremely valuable. Feingold Murkowski Whitehouse my colleagues, I thank the Chair, and I If nobody else is seeking recognition, Feinstein Murray Wyden thank the distinguished leader for I am going to suggest the absence of a NAYS—32 helping us to get here. quorum in a moment. So that Senators The PRESIDING OFFICER. Under will understand, at 6:30 I will call off Alexander Cornyn Inhofe Allard Craig Kyl the previous order, the motions to re- the quorum, and the time will be yield- Barrasso DeMint Martinez consider are considered made en bloc, ed back on both sides. Then we will go Bennett Dole McConnell and the President will be immediately to a rollcall vote on Helene White. Brownback Domenici Roberts notified of the Senate’s action. Bunning Ensign Specter If Judge White is confirmed, as I Burr Enzi f fully expect she will be, then we will go Sununu Chambliss Graham Thune Coburn Grassley LEGISLATIVE SESSION to the next two judges, but only if she Vitter Cochran Gregg is confirmed. Again, Senator SPECTER Wicker The PRESIDING OFFICER. Under Corker Hutchison and I have both said we expect she will the previous order, the Senate will re- be. We will go to the next two judges, NOT VOTING—5 turn to legislative session. and I don’t know of anyone who will re- Bond Kennedy Obama The majority leader. Byrd McCain quire a rollcall vote on those two f judges. The nomination was confirmed. With that, I suggest the absence of a The PRESIDING OFFICER. Under AMERICAN HOUSING RESCUE AND quorum. the previous order, the motion to re- FORECLOSURE PREVENTION ACT The PRESIDING OFFICER. The consider is considered made and laid on OF 2008—Continued clerk will call the roll. the table, and the President shall be Mr. REID. Mr. President, there will The legislative clerk proceeded to immediately notified of the Senate’s be no more votes this evening. If I call the roll. action. could, though, have the attention of Mr. LEAHY. Mr. President, I ask f Senators who are here. unanimous consent that the order for Mr. President, first of all, let me say the quorum call be rescinded. NOMINATION OF RAYMOND M. on this package of judges, we have been The PRESIDING OFFICER. Without KETHLEDGE TO BE UNITED working on these for 5 or 6 years. That objection, it is so ordered. STATES CIRCUIT JUDGE FOR is how long it has taken. So this is Mr. LEAHY. Mr. President, I ask for THE SIXTH CIRCUIT the yeas and nays on the nominee. really a step forward. Everyone has co- The PRESIDING OFFICER. Is there a The PRESIDING OFFICER. The operated. I appreciate very much the sufficient second? clerk will report Executive Calendar help of the entire Republican caucus. There appears to be a sufficient sec- No. 631. Senator KYL was especially helpful to ond. The assistant legislative clerk read work through what we have done. We Is all time yielded back? the nomination of Raymond M. are going to approve two more judges Mr. LEAHY. I am authorized to yield Kethledge, of Michigan, to be United the day after tomorrow, and then we back all time on both sides. I yield States Circuit Judge for the Sixth Cir- will see where we go from there on back all time on both sides. cuit. judges.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE