CONFIRMATION PROCESS; Congressional Record Vol. 154, No. 118
(Senate - July 17, 2008)

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[Pages S6895-S6902]
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                          CONFIRMATION PROCESS

  Mr. SPECTER. Mr. President, I ask unanimous consent that the resumes 
of the two nominees who have been confirmed be printed in the Record. 
The resumes show these two individuals to be well qualified.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                             Paul Gardephe

   United States District Court for the Southern District of New York

       Birth: 1957, Fitchburg, Massachusetts.
       Legal Residence: New York.
       Education: B.A. and M.A., magna cum laude, University of 
     Pennsylvania, 1979; J.D., Columbia Law School, 1982--Articles 
     Editor, Columbia Journal of Law and Social Problems.
       Law Clerk, Honorable Albert J. Engel, United States Circuit 
     Judge for the Sixth Circuit, 1982-1983.
       Litigation Associate, Patterson Belknap Webb & Tyler LLP, 
       Assistant United States Attorney, United States Attorney's 
     Office, Southern District of New York, 1987-1996--Assistant 
     United States Attorney, 1987-1992; Chief, Appeals Unit, 
     Criminal Division, 1992-1995; Senior Litigation Counsel, 
       Consultant (Special Counsel), Inspector General's Office, 
     United States Department of Justice, 1996-2000, 2001-2003.
       Time Inc. Law Department, 1996-2003--Associate General 
     Counsel, 1996-1998; Deputy

[[Page S6896]]

     General Counsel, Litigation, 1998-2000; Vice-President, 
     Deputy General Counsel, 2000-2003.
       Partner, Patterson Belknap Webb & Tyler LLP, 2003-Present--
     Chair, Litigation Department.
       Selected Activities: Member, American Bar Association; 
     Member, Federal Bar Council; Member, New York State Bar 
     Association; Member, Disciplinary Committee, New York State 
     Supreme Court, 1st Department; Former Member, Rules 
     Committee, U.S. Court of Appeals for the 2nd Circuit.
       ABA Rating: Unanimous ``Well Qualified.''

                           Kiyo A. Matsumoto

   United States District Judge for the Eastern District of New York

       Birth: August 29, 1955; Raleigh, North Carolina.
       Legal Residence: New York.
       Education: B.A., with high honors, University of California 
     at Berkeley, 1976; J.D., Georgetown University Law Center, 
     1981--Legal Research and Writing Fellow, 1980-1981. No 
     degree, New York University, School of Continuing and 
     Professional Studies, 1989.
       Primary Employment: Associate, MacDonald, Hoague & Bayless, 
     1981-1983; Assistant United States Attorney, United States 
     Attorney's Office, Eastern District of New York, 1983-2004; 
     Magistrate Judge, United States District Court for the 
     Eastern District of New York, 2004-Present.
       Selected Activities:
       Adjunct Professor of Law, New York University School of 
     Law, 1998-2004; Legal Research and Writing Instructor, 
     Brooklyn Law School, 1985-1986; Vice Chair, New York City 
     Mayor's Committee on City Marshals, 2003-2004; Outstanding 
     Public Service Award Recipient, New York County Lawyers' 
     Association, 2004; Federal Bar Council, 1995-Present--Member, 
     Board of Trustees, 2000-Present--Vice Chair, approx. 2004-
     2007; Member, Committee on the Second Circuit Courts, 1995-
       New York Bar Association, 1994-Present; Member, United 
     States Department of Justice, Civil Chiefs' Working Group, 
     2001-2003; Member, Asian American Bar Association of New 
     York, 1990-Present; Member, Asian American Legal Defense and 
     Education Fund, 1990-2005.
       ABA Rating: Unanimous ``well qualified.''

  Mr. SPECTER. Mr. President, let me emphasize to my colleagues on the 
Republican side who have requested time to speak that we do have an 
hour. I will speak for only a few minutes. We have the distinguished 
Senator from Iowa who is available to speak next. We are open to have 
others come to take part of the time.
  Today, the other Republican members of the Judiciary Committee chose 
not to attend an Executive Business Meeting because there were no 
judges on the agenda. We have seen that there is tremendous 
partisanship, acrimony, and bitterness about the facts regarding the 
whole confirmation process in this Chamber at the present time. We find 
a situation where President Bush's confirmation numbers are far behind 
President Clinton's in the comparable period. President Clinton, in the 
last 2 years of his Presidency, had 15 circuit judges confirmed, 57 
district judges confirmed, contrasted with 10 circuit judges for 
President Bush and 44 district court judges. We have found, 
regrettably, that this pattern has been evolving over the past couple 
decades. We have seen in the last 2 years of President Reagan's 
administration, when the Senate was controlled by the Democrats, the 
confirmation process was slowed. Similarly, in the last 2 years of 
President George H.W. Bush, the Democrats controlled the Senate, and 
the process was slowed. Then, for 6 years during President Clinton's 
administration, the last 6, the Senate was controlled by Republicans 
and the matter was exacerbated. There were determinations to not 
confirm President Clinton's judges. I spoke out at that time and voted 
to confirm President Clinton's qualified judges and disagreed with my 
caucus because I thought we ought not to be partisan and impede the 
confirmation of judges due to the importance and public interest of 
having the courts handle litigation in a timely way. But the situation 
was ratcheted up, first by Democrats, and then by Republicans.
  Then we saw this Chamber badly divided in 2005, with filibusters by 
the Democrats and threats by Republicans to put into effect the nuclear 
or constitutional option to change the rules on filibusters. So the 
matter has gone from bad to worse. It is hard to see how it can get 
much worse, but it seems to be getting worse. It is my hope we will 
find a way to break this cycle.
  What we find is the minority party, whichever party that is, has been 
turned into recidivists. We have a cycle of recidivism blocking the 
confirmation of judges. Nobody knows for sure what is going to happen 
in the Presidential election this year or what is going to happen in 
the Senatorial elections, but it may be that there will be a Democratic 
President. It may be that the Democrats will control the Senate. I 
would not like to see the rapidly deteriorating situation which we now 
have now turn into a situation where there will be filibusters by the 
Republicans in the 111th Congress. For a long time the Democrats 
filibustered Fifth Circuit nominees, claiming Clinton's nominees were 
filibustered years back. Now we have a good many Fourth Circuit 
nominees who are not receiving hearings or votes. I am afraid we are 
going to have the same situation exacerbated with Republicans taking a 
position similar to the Democrats current position. It is my hope we 
will yet be able to do something about it.
  Earlier today, Senator Reid came to the floor and mentioned me by 
name. I gave Senator Reid notice that I would be on the floor at 12:15 
today, when I had some time allotted. I believe it is a good practice, 
not only a good practice, not only a preferable practice, but it ought 
to be the practice to let a Senator know if you are going to talk about 
him on the floor so he can come and reply, if he chooses to do so. But, 
Senator Reid was commenting about the excessive amount of time 
Republicans wanted, an hour and a half. We had an hour equally divided 
a few weeks ago, and that left Republicans with a half an hour. Senator 
Warner had a judge on the list and didn't have any time to speak. 
Senator Bond came to the floor, and there was no time for him on 
Republican time. I understood later--I found out this morning--that he 
got some time from Senator Leahy.
  But, all any Senator has to do is call. If Senator Reid doesn't like 
the time request and wants it at an hour, he can call me. I realize he 
has a responsibility to administer this Chamber, and I am prepared to 
cooperate with him. But, it is my hope we will yet move ahead.
  We have a large number of individuals who have been waiting a very 
long time in the confirmation process. Tomorrow marks the 750th day 
that Peter Keisler has waited for Committee action. Steve Matthews in 
the Fourth Circuit has been waiting 315 days for a hearing, and Judge 
Robert Conrad in the Fourth Circuit from North Carolina has been 
waiting for a year today.
  One further comment before yielding to Senator Grassley. There has 
been a lot of talk about the so-called Thurmond rule. The contention 
has been made that there is a rule, articulated by Senator Thurmond, 
which dictating that there are no judicial confirmations late in the 
final year of a Presidency, not after the summer. Allegedly, the 
concept was discussed at the Republican National Convention, where 
Senator Thurmond reportedly made a comment, although no quotation is 
directly attributable to Senator Thurmond, that they ought to wait 
until after the election to see who was elected before there were 
confirmations of other judges. But the facts are that no such practice 
was ever implemented. The facts are exactly to the contrary. It is true 
that on September 10, 1980, Senator Thurmond blocked 13 pending 
judicial nominations, but he gave his reasons why. He said: ``Our 
investigation has not been entirely completed on some of them.'' A week 
later, on September 17, Senator Thurmond withdrew the objections, and 
all 10 were confirmed on September 29. Then, the most conclusive 
evidence that there is no Thurmond rule was pertains to the situation 
with now-Supreme Court Justice Breyer. Justice Breyer was nominated by 
President Carter on November 13, 1980, after President-elect Reagan had 
been elected. So there was a vacancy that, had the Senate not confirmed 
him, would have awaited the next President. The nomination was acted 
upon very promptly, with the receipt by the Senate on November 13 and a 
hearing on November 17, even faster than the 1-week rule, which was 
waived. Breyer was reported out by committee on December 1 and 
confirmed by the full Senate on December 9. So how can you have a 
Thurmond rule if a circuit vacancy on the First Circuit is confirmed, 
even after a new President has been elected?
  The evidence shows there are many confirmations late in the 

[[Page S6897]]

term. I cite only a few. There was an additional circuit nominee 
confirmed in September of 1980. After September 1, 1984, 5 circuit 
court and 12 district court judges were confirmed. After September 1, 
1988, five circuit court and nine district judges were confirmed. After 
September 1, 1992, three circuit court and nine district court judges 
were confirmed.
  We have found, understandably, that arguments are made, depending 
upon what suits the purpose of the particular advocate. But, it is 
worth noting that Senator Leahy said on May 4, 2000:

       There is a myth that judges are not traditionally confirmed 
     in Presidential election years. That is not true. Similarly, 
     Senator Reid said, on March 7 of 2000:
       It is a myth that judges are not traditionally confirmed in 
     Presidential election years. It is simply not true.

  So, in the year 2000, when the Democrats sought to confirm President 
Clinton's nominees, reference was made to the fact that the Senate 
regularly confirms judicial nominations late in the term--the substance 
of the so-called Thurmond rule.
  We ought to try to move, I suggest, away from positions where we 
articulate a view when it suits our purpose and then articulate a 
different view later. We ought to try to come to a point in this body 
where we understand reciprocity and understand that the rules ought to 
apply both ways. There is no Thurmond rule for Democrats when 
Republicans are in control and there is a Democratic President, and 
there is no Thurmond rule when the situation is reversed.
  We have a similar situation, which is tearing at the heart of Senate 
procedures, where in modern times both Republican and Democratic 
leaders have adopted a process of taking procedural steps to prevent 
amendments from being offered. That practice has been engaged in by 
Senator Mitchell for the Democrats, Senator Lott and Senator Frist for 
the Republicans, and now, more by Senator Reid for the Democrats.

  Bills come to the floor, and the traditional right of a Senator to 
offer amendments is foreclosed by this procedural device, and the 
response is a filibuster. Senator Reid then points to Senator 
McConnell, saying that the filibuster is blocking Senate action. 
Senator McConnell points to Senator Reid saying that the filibuster is 
only in response to filling the tree.
  These are just a couple of examples where positions are taken. And, 
it is understandable that they are taken to promote whatever objective 
Senators want at any particular time. But, I suggest the interests of 
the public and the procedures of the Senate would be much better served 
if we accepted principles and applied them to Democrats when it 
benefits Democrats and applied them to Republicans when it benefits 
Republicans. It is my hope, to repeat--which I do not like to do--that 
we are going to have to find a way out of this impasse, and we are 
going to find a way to restore some comity and to confirm judges in 
places where there are judicial emergencies and the public is suffering 
so that we do not repeat this cycle of recidivism and set the stage for 
the next Congress and the Congress after that to continue this 
nefarious practice which is harmful to the public.
  Mr. President, I yield to my distinguished colleague.
  The PRESIDING OFFICER. The Senator from Iowa.
       Mr. GRASSLEY. Mr. President, I would like to ask if the 
     Senator would yield?
  Mr. SPECTER. I do yield.
  Mr. GRASSLEY. Mr. President, I say to the Senator, he talked about 
judicial emergencies. I think it would be good if the public knew what 
a judicial emergency is and why it is so important that we emphasize 
getting those positions filled ahead of others and why there should be 
no excuse for holding them up, if you have any respect for the work of 
the judicial branch of Government.
  Mr. SPECTER. I thank the distinguished Senator from Iowa for the 
  A judicial emergency has been defined by the Administrative Office of 
the Courts according to the backlog of cases and depending on the 
circumstances, as to how long litigants have had to wait. What it means 
in real world terms is, if somebody is injured, for example, in an 
automobile collision--a diversity case--and is out of work and has big 
medical expenses, that person's case does not come to trial and he does 
not get a decision as to what has happened. Or it may be a matter 
involving jobs in a community where there is an antitrust case, and it 
is delayed, both in the trial court and on appeal. But, every one of 
these judicial emergencies--and I put them in the Record before, but I 
ask unanimous consent to have them printed again at the conclusion of 
our discussion here--means that people are waiting to have their 
controversies decided, and they are undergoing very difficult 
circumstances being out of work, no salary, medical expenses, 
illustratively, while they wait for their case to come up.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. GRASSLEY. Mr. President, if the Senator will yield further--and I 
only remember two names, but I think these two names would permit me to 
ask a question that I think is legitimate and that the public ought to 
take into consideration as to the holding up of those nominations--I 
remember the Senator mentioned a Peter Keisler, who has been waiting 
for 750 days, and Robert Conrad, who also has been waiting for a long 
period of time, 365 days. Now, obviously, if these nominations are not 
being processed, there must be people who think these individuals are 
incompetent and should not be nominated. So what are the accusations of 
incompetency for these individuals not being approved?
  Mr. SPECTER. Mr. President, responding to the question, there are no 
allegations of incompetency. Quite to the contrary. Nobody is saying 
  Mr. GRASSLEY. Well, if they are competent, shouldn't they be 
  Mr. SPECTER. Yes, they should be. The reason they have not been 
approved is that there is an interest in holding open these vacancies 
in the event there is a President of the other party to fill them with 
the Democrats. Nobody is making any bones about that, I say to Senator 
Grassley. That is the obvious and admitted reason.
  Mr. GRASSLEY. So I draw the conclusion, I say to the Senator from 
Pennsylvania, that the people blocking these nominations really are not 
concerned at all about the efficient operation of the judicial branch 
of Government. But we should get our job done and confirm these 
nominees because that is what it takes for the judicial branch to get 
their work done. The judiciary needs to have the personnel to get their 
job done.
  Mr. SPECTER. Mr. President, I respond by saying to the Senator from 
Iowa that is a very harsh accusation, very harsh accusation he has just 
made. But, since he has made it, I will say that it is true.
  Mr. GRASSLEY. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I see the distinguished ranking member 
of the Judiciary Committee is here and has been so experienced in these 
matters and been through the wars and battles over nominations for some 
time. And we have had a good bit of that, but we have also, in the end, 
had a pretty decent understanding of the responsibilities the committee 
has to honor the President's nominations and give them an up-or-down 
vote and not just shut down the process.
  I guess my question would be, I say to Senator Specter, Senator 
Leahy's statement at the Judiciary June 12 executive business meeting--
he announced he was invoking the so-called Thurmond Rule, and he said: 
``We are now way past the time of a Thurmond rule named after Senator 
Thurmond when he was in the minority, and I'm trying to respect that. 
We are still putting judges through. But I must note this point; 
further judges will be moved only by a consent of the two leaders of 
the Senate and the two leaders of this committee,'' which, of course, 
says fundamentally that unless Senator Leahy and Senator Reid approve 
of a nominee, from this point on, it is not moving forward.
  I know you conducted an open hearing and discussion of that. I ask 
the Senator basically how he feels about the definition of the 
``Thurmond Rule'' and what it really means and whether

[[Page S6898]]

we are doing something that is unprecedented here.
  Mr. SPECTER. Mr. President, I thank the Senator from Alabama for the 
question. There was a Republican forum on Monday of this week to 
examine the Thurmond Rule. I had notified Chairman Leahy of it and had 
written to him about it, and I ask unanimous consent to have that 
letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,

                                   Committee on the Judiciary,

                                     Washington, DC, July 8, 2008.
     Hon. Patrick J. Leahy,
     Chairman, Senate Committee on the Judiciary, Washington, DC.
       Dear Pat: Following up on our telephone conversation late 
     yesterday afternoon in which I advised that I would raise no 
     technical objection to the Thursday hearing, I am amplifying 
     my comments about the forum which the Senate Republican 
     Conference has scheduled for next Monday, July 14th, at 2:00 
     P.M. in SR-385.
       That Republican forum, one in a series, will deal with the 
     issue of the so-called Thurmond Rule. As I mentioned to you 
     on the phone yesterday, it seems to me that is one which 
     could benefit from participation by Democratic members of the 
     Judiciary Committee if there is any interest on your part in 
     doing so.
       Obviously, there is a fuller development of any issue when 
     there are pros and cons; and, not unexpectedly, the 
     Republican view is there is no rule, Thurmond or otherwise, 
     to preclude confirmation of judges this year.
       Distinguished experts have been invited as follows: 
     Professor John McGinnis, Northwestern Law School; Mr. Roscoe 
     Howard, former U.S. Attorney, District of Columbia; David 
     Bohm, Assistant Executive Director of the North Carolina Bar 
     Association; Mr. Steve Rutkus, Congressional Research 
       If there is any interest on your side of the aisle or if 
     you would like to add an additional witness (witnesses), we 
     would be pleased to try to accommodate.
       My best.
                                                    Arlen Specter.

  Mr. SPECTER. During the course of that forum, to answer the question 
directly from the Senator from Alabama, we had an expert from the 
Congressional Research Service--the nonpartisan body--come in to trace 
the origins of the so-called Thurmond rule. He stated that it arose 
back in the Republican Convention in 1980, when Senator Thurmond raised 
the possibility of holding up confirmations until after the election, 
but it was never done.
  The facts are that there were 10 district court judges confirmed in 
September of 1980, and now-Justice Breyer was nominated to the First 
Circuit by President Carter after the election, on November 13, and was 
confirmed in December 1980. Another circuit judge was confirmed after 
September of 1980.
  I put in the Record earlier a litany of district and circuit judges 
confirmed after September in the last year of a Presidential term. I 
also put into the Record statements which had been made by Senator Reid 
and Senator Leahy that there was no practice, no rule of not confirming 
judges at the last part of a President's term, say after Labor Day.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I wonder if my colleague would yield for a 
  I would like to ask our distinguished ranking member of the 
committee, aren't there several well-qualified judicial nominees 
currently pending in the Judiciary Committee who have been denied fair 
up-and-down votes? For example, Mr. Peter Keisler, the former Acting 
Attorney General, has been rated unanimously ``well qualified'' by the 
American Bar Association and has earned bipartisan praise from 
attorneys, professors, and even editorial pages. I know the Washington 
Post and the L.A. Times have praised his nomination, calling him a 
``moderate conservative'' and a ``highly qualified nominee'' who 
``certainly warrants confirmation.'' Notwithstanding those outstanding 
qualifications, tomorrow, I believe, will mark 750 days that Mr. 
Keisler has been waiting for a committee vote.
  Mr. SPECTER. Mr. President, responding to the question, the Senator 
from Arizona is correct. Peter Keisler has been praised in all quarters 
for his capabilities. He served as Assistant Attorney General and as 
Acting Attorney General. He has drawn editorial praise and is extremely 
well qualified, both academically and professionally, and is simply 
being held up because at one time in the past there was a Republican 
concern about the need for additional judges on the Circuit Court for 
the District of Columbia. And, that issue has since been satisfied.
  Mr. KYL. Mr. President, might I inquire of my colleague further on 
that precise point?
  With regard to the filling of the circuit court for the District of 
Columbia, we had testimony by Mr. Roscoe Howard, very recently in the 
Senate Republican caucus forum on judicial confirmations--this was just 
last Monday--that the numbers the majority relies on for that argument 
that the Senator identified are outdated. He noted that the Judicial 
Conference recently issued statistics indicating that in recent years 
the DC Circuit Court's docket has increased and that it has been 
processing appeals more slowly because of additional workload, and this 
has corresponded with an increase in the median wait time between the 
notice of appeal and disposition of a case, which, in fact, he notes is 
the longest since 1995.
  Mr. SPECTER. Mr. President, the Senator from Arizona is correct. The 
current statistics show a need for another judge there, and there is no 
reason to withhold the confirmation of Peter Keisler, except to keep a 
vacancy open with the hope of having the new President of the other 
party fill it.
  Mr. KYL. Mr. President, just one more point.
  I also note, when I heard Mr. Howard's testimony demonstrating 
further the need to fill this seat, he noted that Judge Raymond 
Randolph of the DC Circuit recently announced he would be taking senior 
status on November 1 of this year, which means the seat to which Mr. 
Keisler is nominated is actually the 10th seat on that circuit. Is that 
not correct?
  Mr. SPECTER. The Senator from Arizona is correct again.
  Mr. KYL. Mr. President, again I say to Senator Specter, just to 
confirm my understanding here, in addition to Judge Randolph, Judge 
David Sentelle currently is eligible for senior status. Next year, 
Judge David Tatel and Judge Judith Ann Rogers will be eligible for 
senior status. Judge Karen Henderson and Judge Douglas Ginsburg will be 
eligible in 2009 and 2011, respectively. Am I correct on that?
  Mr. SPECTER. Mr. President, the Senator from Arizona is correct, yes.

                               Exhibit 2

                                                       CURRENT JUDICIAL EMERGENCIES WITH NOMINEES
               Nominee                            ABA               Date vacant      Nomination date         Senate action               Pending
William E. Smith (1st Circuit).......  Substantial Majority               12/31/06           12/06/07  No Action...............  224 days
                                        Well Qualified/Minority
Shalom Stone (3rd Circuit)...........  Substantial Majority                1/31/06            7/17/07  No Action...............  365 days
                                        Qualified/Minority Well
Gene Pratter (3rd Circuit)...........  Unanimous Well Qualified           10/23/06           11/15/07  No Action...............  245 days
Robert Conrad Jr. (4th Circuit)......  Unanimous Well Qualified            7/31/94            7/17/07  No Action...............  365 days
Rod Rosenstein (4th Circuit).........  Unanimous Well Qualified            8/31/00           11/15/07  No Action...............  245 days
Thomas Farr (E.D. N.C.)..............  Unanimous Well Qualified           12/31/05           12/07/06  No Action...............  588 days
James Edward Rogan (C.D. C.A.).......  Substantial Majority                5/22/06             1/9/07  No Action...............  555 days
                                        Well Qualified/Minority
David R. Dugas (M.D. L.A.)...........  Unanimous Well Qualified            1/15/07            1/15/07  No Action...............  549 days

  Mr. KYL. Mr. President, it seems to me, given these facts, it is even 
more imperative that Peter Keisler be at least voted on, and I would 
argue confirmed, to the DC Circuit, and it seems to me no other reasons 
than purely political motivations seem to be blocking his confirmation.
  Mr. GRASSLEY. Mr. President, I ask Senator Kyl, aren't there a lot of 
other well-qualified nominees being blocked as well?
  Mr. KYL. Mr. President, the answer to my colleague from Iowa is yes. 
Mr. Steve Matthews of South Carolina and

[[Page S6899]]

Judge Robert Conrad of North Carolina, for example, are both impressive 
nominees who are exactly the kind of judges the severely understaffed 
Fourth Circuit Court of Appeals needs.
  Mr. GRASSLEY. How close are they to being confirmed?
  Mr. KYL. That is a very good question. Judge Conrad has been waiting 
for a hearing for 365 days. Today is the 1-year anniversary of his 
nomination, even though he was unanimously rated ``well qualified'' by 
the American Bar Association, and Mr. Matthews has been waiting for a 
hearing for 315 days.
  Mr. GRASSLEY. I ask Senator Kyl, didn't Chairman Leahy and the other 
Democratic members of the Judiciary Committee say that a unanimous 
``well qualified'' rating by the American Bar Association is somewhat 
of a ``gold standard'' by which all nominees should be judged?
  Mr. KYL. Yes. I guess I would say that was then, this is now. But in 
addition to the ABA rating, I note that Judge Conrad in particular 
meets the other three criteria that Chairman Leahy has stated are his 
standards for quick confirmation.
  Mr. GRASSLEY. Of course. Isn't he nominated to fill a seat deemed ``a 
judicial emergency'' by the nonpartisan Administrative Office of the 
  Mr. KYL. The answer is yes. Chairman Leahy has said--and I think all 
of us would agree--that judicial emergencies should be addressed 
quickly. In fact, in a press release in January of last year, he 

       There are several outstanding judicial emergencies. . . . I 
     hope to expeditiously address some of these emergency 
     vacancies in the Judiciary Committee.

  Mr. GRASSLEY. Yes. We have always had an understanding around here 
that if both Senators of the home State supported a nominee, they would 
move forward. Doesn't Judge Conrad satisfy this third prong of the 
``Leahy standard'' for confirming judges since he has the strong 
support of both his home State Senators?
  Mr. KYL. Yes. Both Judge Matthews and Judge Conrad have the support 
of their home State Senators. In fact, on October 2 of last year, 
Senators Burr and Dole sent a letter to Senator Leahy asking for a 
hearing for Judge Conrad, and they spoke on his behalf at a press 
conference on June 19 that featured numerous friends and colleagues of 
Judge Conrad's who had traveled all the way up from North Carolina to 
DC to offer their support for his nomination. On April 15, 2008, 
Senators Burr, Dole, Graham, and DeMint sent a letter to Senator Leahy 
asking for a hearing for Judge Conrad and for Mr. Matthews.
  Mr. GRASSLEY. I believe it is also true, that Judge Conrad meets the 
fourth and final prong of Chairman Leahy's standard because he 
previously received bipartisan approval by the Judiciary Committee and 
the Senate when he was confirmed by a noncontroversial voice vote to be 
a U.S. Attorney in North Carolina and when he was confirmed by voice 
vote to the District Court for the Western District of North Carolina. 
It seems to me that these bipartisan voice votes indicate that Judge 
Conrad is a noncontroversial consensus nominee.
  Mr. KYL. I absolutely agree with that assessment. Those are the 
considerations that underscore my great regret that no nominees were on 
the agenda for the executive business meeting of the Judiciary 
Committee this morning.
  Mr. SESSIONS. Mr. President, to my colleague from Iowa, I asked 
earlier of Senator Specter regarding his statement that Chairman Leahy 
was saying he was going to enforce a Thurmond rule and that nobody 
would be moved henceforth--no nominee--unless both he and the ranking 
member and the majority leader and the Republican leader each approved. 
So I ask Senator Grassley how he feels about that statement.
  Mr. GRASSLEY. Well, I have had a chance to review that, and I can say 
that as you know, in May of 2000, during President Clinton's last year 
in office, Senator Leahy, referring to the Thurmond rule, said:

       There is a myth that judges are not traditionally confirmed 
     in presidential election years. That is not true. Recall that 
     64 judges were confirmed in 1980, 44 in 1984, 42 in 1988 when 
     a Democratic majority in the Senate confirmed Reagan nominees 
     and, as I have noted, 66 in 1992 when a Democratic majority 
     in the Senate confirmed 66 Bush nominees.

  That is the end of the Leahy quote in regard to the Thurmond rule.
  Mr. SESSIONS. I think the Senator is correct. He has been a long-time 
senior member of the Judiciary Committee who is active in that entire 
process. In fact, Senator Reid, now the majority leader, made a similar 
statement in March of 2000 and those statements are more accurate 
descriptions of the history of the Thurmond rule over the past 25 
  Isn't it also true that the majority asserts the purported Thurmond 
rule originated in the summer of 1980 when Senator Thurmond was the 
ranking member of the Judiciary Committee?
  Mr. GRASSLEY. Well, the answer is yes, of course. Let me explain that 
Senate Democrats allege that Republicans, then in the minority and 
anticipating a change in power in the 1980 election, stalled the 
approval of President Carter's judicial nominees. The Majority points 
to a discussion at an executive business meeting which took place on 
September 10, 1980, when Ranking Member Thurmond asked Chairman Kennedy 
to hold over 13 nominees for 1 week because their background 
investigations were not complete. However, this allegation is not 
  Mr. SESSIONS. Well, is it not true, Senator Grassley, based on your 
experience, that it is standard procedure to hold nominees over until 
their background checks have been completed?
  Mr. GRASSLEY. Yes, it is. In fact, a 1-week holdover in the Judiciary 
Committee is any Senator's prerogative--in fact, prerogatives I have 
used a few times myself--and over the last 2 years, the Majority has 
held over virtually all of President Bush's nominees for 1 week before 
a committee vote. Do you recall whether the Senate later confirmed any 
of these nominees who were held over?

  Mr. SESSIONS. Well, I think that is, in fact, true. The Senate 
confirmed 10 of the 13 nominees, and Senator Thurmond stated at an 
executive business meeting that the committee did not report favorably 
on the other three because: ``The minority had some questions of 
substance that would have to be discussed.''
  The committee did not hold another executive business meeting that 
year, so the other three nominees were not considered again.
  Mr. GRASSLEY. I think it is pretty clear then, Senator Sessions, 
referring to the accusations made about Senator Thurmond, it doesn't 
sound to me as though Senator Thurmond was blocking nominees in 
anticipation of an upcoming election.
  Mr. SESSIONS. No, it doesn't. In fact, the record shows that on 
September 29, 1980, in a floor statement, Senator DeConcini, a 
Democratic member of the committee, commended Senator Thurmond for:

       demonstrating leadership on the Committee on the Judiciary, 
     a willingness to take case-by-case appointments, obviously 
     from a different administration than he might prefer, but 
     willing to proceed with the advancement of these 
     appointments, because the need of the judiciary does come 
     before party preference.

  Mr. GRASSLEY. Let me also point to a nonpartisan source. Didn't Mr. 
Steve Rutkus from the Congressional Research Service testify at the 
Senate Republican Conference's forum on the judicial nomination process 
on Monday that the facts do not support a Thurmond rule? Would that be 
correct? Is that the way you understand it?
  Mr. SESSIONS. That is what he said. In addition, between June 1 and 
September 1 of 1980, President Carter's last year in office, didn't the 
Senate confirm four circuit court nominees and 15 district court 
  Mr. GRASSLEY. Yes. The record shows the Senate did. That is entirely 
  Mr. SESSIONS. In fact, wasn't one of those circuit nominees ACLU 
general counsel--the American Civil Liberties Union general counsel, 
Ruth Bader Ginsburg, who was later confirmed to the DC Circuit on June 
18, 1980?
  Mr. GRASSLEY. Yes. It doesn't sound to me like the conservative 
Senator from South Carolina was using any power he had on the Judiciary 
Committee to hold up a person who has turned out to be very much a 
judicial activist. I would say even more remarkable, in regard to your 
statement, after September 1, 1980, the Senate confirmed 11 district 
court nominees and 2

[[Page S6900]]

additional circuit court nominees, including Stephen Reinhardt, who has 
gone on to earn a reputation as one of the Nation's most liberal 
jurists. The other post-September circuit court confirmation was that 
of Stephen Breyer, who at that time was Senator Kennedy's chief counsel 
on the Judiciary Committee.
  Mr. SESSIONS. Well, Senator Grassley, I know, is aware of that, but 
wasn't Mr. Breyer nominated by President Carter on November 13, 1980, 
after President Carter had lost the election to President Ronald 
Reagan? And didn't the Senate Democrats, who had just lost control of 
the Senate, hold a swift confirmation vote on Breyer during that lame 
duck session on December 9, 1980?
  Mr. GRASSLEY. That is right. In fact, the Senate confirmed a total of 
10 circuit court nominees and 53 district court nominees during 1980, 
President Carter's last year in office. And 1980 was not an aberration. 
As Senator Leahy noted in 2000, the pattern continued in subsequent 
election years. Also in 2000, the year Senator Leahy called the 
Thurmond rule a ``myth'' when he was complaining about the pace of 
judicial confirmations, the Senate confirmed 8 circuit court nominees 
and 31 district court nominees.
  Mr. SESSIONS. I thank my colleague from Iowa. He has been a stalwart, 
capable member of this committee for many years. He is known for plain 
speaking and honest talk. I think that is what we have had here. It is 
a shame we are looking at an unprecedented circumstance. I note we are 
put in a position where I think it is difficult to respond, other than 
to go to the American people, because what Senator Leahy has done is 
state that the Thurmond rule is something that it is not and indicate 
that further judges will be moved only by consent of the two leaders of 
the Senate and the two leaders of the committee.
  He made that statement very recently. So it looks as though we are at 
a point where the normal procedures of moving judges have been 
abrogated and that it is unlikely additional nominees will be 
  I have a few more comments, but my senior colleague Senator Grassley 
is here, and I am glad to yield the floor.
  Mr. GRASSLEY. No. Go ahead.
  Mr. SESSIONS. I thank the Senator. I wish to talk a little bit about 
Robert Conrad. I was a U.S. Attorney, Federal prosecutor for 12 years, 
and an assistant U.S. attorney for 2\1/2\ years. It was a great job, a 
wonderful opportunity to serve the public.
  I remember not too long after I came here, President Clinton was 
embroiled in quite a number of scandals and allegations were made. 
Janet Reno was then the Attorney General of the United States, and she 
decided to appoint a counsel to conduct an investigation of allegations 
against President Clinton, as I recall. I don't remember what the 
substance of the complaints were at that time. There were a lot of them 
on different things. She looked all over the United States of America 
to pick a top prosecutor, somebody who had credibility, and judgment 
she could trust to undertake this difficult thing that the entire 
Nation was watching, and do you know who she selected? She selected Mr. 
Conrad of North Carolina. He was then an assistant U.S. attorney and he 
undertook this challenge.
  He investigated at some length, and all I recall about it was that he 
did not choose to indict anyone. I remember he testified before our 
committee and he was such a straight shooter. He was so mature in his 
responses to the questions. He was a relatively young person, but an 
experienced attorney in the Department of Justice. He did a good job. 
He was asked a lot of tough questions because people were concerned 
about those issues. He handled them well. So I have a vivid memory of 
that. Janet Reno said her respect for him continued to grow throughout 
his service in that capacity, in that most difficult challenge that she 
asked him to undertake. Later, he was confirmed to be a Federal judge 
in North Carolina and has served there and has moved up.
  Now he is the chief presiding district judge in the State of North 
Carolina. President Bush, of a different party than Janet Reno, chose 
him and nominated him to be a judge on the Court of Appeals, one step 
below the U.S. Supreme Court, an important and prestigious position, 
and that went forward. Now, 365 days have gone by and he has not even 
had a hearing.
  Let me interject and say those of us on the conservative side have 
felt many times that the American Bar Association tends to favor 
liberal judges, but I value its opinion.
  I always have. I think it is an important opinion because they talk 
to lawyers throughout the community and judges throughout the 
community. There are about 15 members on this committee. Then the 
judges come together and review all of the reports and interviews from 
the most prominent lawyers in the community, fellow judges, and State 
judges. They say: What kind of person is he? Does he have good 
judgment? Has he handled his docket well? Is he a man of integrity and 
ability? Does he understand complex rules of law?
  Those are the kinds of things they talk about. They do an evaluation. 
Most nominees are not rated ``well qualified,'' and usually there is a 
good bit of dispute within the communities about what kinds of 
recommendations should occur. That committee met and discussed it, and 
they unanimously rated him ``well qualified,'' which is the highest 
rating the American Bar Association can give to a nominee for judicial 
office. He served ably as an assistant U.S. attorney. He handled one of 
the most important cases in the entire Nation as an assistant U.S. 
attorney. The Democratic Attorney General looked over the entire United 
States and reached out and picked him to handle a case involving the 
President of the United States of America, and she had nothing but high 
compliments for his performance. The ABA has evaluated him. He was 
confirmed previously as a district judge, became the presiding district 
judge for that area, and has now been nominated to be a Federal circuit 
judge. He has been denied even a hearing, even though he got a 
unanimous ``well qualified.''
  A lot of people think this is just politics. But I hope the American 
people understand that it is not just politics. This Nation has as its 
bedrock foundation for our prosperity and our liberty a belief in the 
rule of law. It is something we inherited even before we became a 
nation. Those of us on this side believe a Federal judge should not be 
an activist. A Federal judge should not be attempting to carry out some 
personal agenda. A Federal judge should be a neutral umpire to decide 
cases in a neutral and fair way. The policy decisions should be made by 
the State legislatures or the Federal Congress or the President of the 
United States.
  I feel as though we need to understand that there is a clear 
difference between the kind of judges our Democratic colleagues tend to 
favor for the bench and those President Bush has been nominating. They 
think Judge Conrad is not activist enough. They think he won't promote 
their agenda, which they are not oftentimes able to win with at the 
ballot box. His nomination has been blocked. I don't appreciate that. 
He is a fabulous nominee who is highly respected by Democratic Members. 
We had a wonderful hearing where a whole roomful of people came from 
North Carolina to testify on his behalf, to plead with the Senate to 
give this man an up-or-down vote. No, they invoke the Thurmond rule--
and that is not an accurate invocation of the Thurmond rule--as an 
excuse to block him.
  There are already four vacancies on the Fourth Circuit, including 
from Virginia, down to the Carolinas. He is one of them.
  I think the man deserves an up-or-down vote. He deserves to be 
confirmed. We will not have better nominees than Judge Conrad. He has 
proven himself on the bench and as a Federal prosecutor, both times in 
Federal court, where he will now be called upon to serve.
  I have to tell you, I will add one more thing on why I think he is 
special. Judge Conrad was a point guard on the Clemson University 
basketball team in the Atlantic Coast Conference. You have to make 
decisions in that job. He was an outstanding academic All-American. I 
think the man is fabulous, and he ought to be confirmed. I am upset 
that he has not been.
  I say the same for Mr. Matthews, also nominated to fill one of those 
four vacancies on the Fourth Circuit, and Mr. Keisler, who was rated 

[[Page S6901]]

``well qualified'' for the DC Circuit. They have been waiting hundreds 
of days, and it is not right. They ought to be confirmed.
  I thank the chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I rise to discuss an issue that is important 
to my constituency--the confirmation of qualified judicial nominees. I 
thank the Senator from Alabama for his explanation of what is happening 
in his area. I want to speak a little bit on what is happening in my 
  I have heard the majority leader say that when he hears from 
constituents, it is about energy, housing, and other issues; but he 
never hears about judges. I can tell you my experience is different. 
Yes, constituents talk about energy and health care and housing and 
about the economy, but they also bring up the need to confirm qualified 
judicial nominees.
  I am specifically before the Senate to ask my colleagues to consider 
confirming a qualified candidate for my home State of Wyoming. The 
nominee is Richard Honaker. Despite the fact that he was rated 
unanimously ``well qualified'' by the American Bar Association, and 
despite the fact that he has strong bipartisan support in Wyoming, he 
has been pending before the Senate Judiciary Committee for 486 days. 
That is just the committee. He isn't even to the floor yet--486 days in 
committee. It seems as though they could at least do an up-or-down vote 
and get that decided instead of just keeping him in limbo.
  Why has Mr. Honaker's nomination been pending so long? He meets all 
of the tests that have been laid out for qualified judicial nominees. 
As I mentioned, the ABA has given Mr. Honaker its highest rating of 
unanimously ``well qualified.'' He has the support of both home State 
Senators. My colleague will be speaking to this shortly as well. In 
fact, he not only has the support of myself and Senator Barrasso, his 
name was submitted to the White House for consideration by my friend, 
the late Senator Craig Thomas. Senator Thomas submitted Mr. Honaker's 
name after it was recommended to him by a panel Wyoming lawyers who 
evaluated about fifty individuals who were interested in serving on the 
Federal bench. Richard was the unquestionable choice of those 
attorneys. This wasn't the unquestionable choice of Senator Thomas; it 
was the unquestionable choice of a panel of attorneys who chose him 
from a whole range of people who were interested.

  My recollection is that this is the first time that a Republican 
Senator has ever nominated a trial lawyer for a judgeship from Wyoming.
  Mr. Honaker doesn't only have the support of Republicans, his 
nomination is supported by former Wyoming Democratic Governor Mike 
Sullivan, who also worked as the Ambassador to Ireland for President 
Bill Clinton. He is an attorney operating in Wyoming. Mr. Honaker is 
supported by Robert Schuster, another attorney, a former committeeman 
of the Democratic National Committee, who was a Democratic nominee for 
the House of Representatives. He has the support of Lee Reese, the 
President of the International Association of Fire Fighters Local 1499.
  With all that in mind, you would think Mr. Honaker would be confirmed 
quickly. But, no, his nomination has been pending before the Judiciary 
Committee for more than a year because of an action he took more than 
20 years ago as a Democratic State legislator. Acting as a State 
legislator on behalf of his constituents who are generally pro-life, 
Mr. Honaker drafted a bill called the Human Life Protection Act. The 
bill failed in committee and didn't move forward.
  Mr. Honaker has had no involvement in the abortion issue for more 
than 20 years. Yet that is being used as a litmus test. Some liberal 
groups are claiming he is an extremist and saying he would come to the 
bench to overturn Roe v. Wade. They obviously don't know him because, 
if they did, they would understand that Mr. Honaker knows the 
difference between acting as a legislator and acting as a jurist. He 
knows there is a difference. He gave sworn testimony before the Senate 
Judiciary Committee on February 12, 2008, saying that he would uphold 
the precedent of Roe v. Wade.
  Yet even with that information, he is being blocked from a vote in 
the Judiciary Committee. It is even more ironic that he is being held 
up because of legislation he introduced because the pro-choice 
legislators who blocked the bill he sponsored in the Wyoming 
Legislature support his nomination to the Federal bench.
  We are in a dangerous place when it comes to confirmation of Federal 
judges in the Senate. With Mr. Honaker's nomination, my colleagues are 
saying that we do have a litmus test for judges: If you have ever been 
involved in the abortion issue, you cannot be confirmed as a judge, 
regardless of how you were involved, and regardless of your 
qualifications. I know this is the case with Mr. Honaker's nomination 
because, if my colleagues looked at the other legislation he sponsored 
in the Wyoming State Legislature, they would see that much of it is 
more favorable to their policies than the policies of the Republicans.
  Mr. Honaker is well qualified to be a Federal judge, as evidenced by 
the strong support he has from a diverse group of people in Wyoming. He 
deserves to be confirmed. I hope my colleagues will look beyond one 
bill he introduced as a legislator 20 years ago and give his nomination 
the consideration it deserves.
  I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Wyoming is recognized.
  Mr. BARRASSO. Mr. President, I am here today to ask the Judiciary 
Committee to hold a simple vote--hold a vote on the nomination of 
Richard Honaker, to be a U.S. District Judge for the District of 
  Mr. Honaker was recommended to President Bush by Senators Thomas and 
Enzi on January 10, 2007.
  The recommendation occurred following an extensive vetting process in 
Wyoming by a committee that was formed by Senator Thomas. This 
committee consisted of a diverse group of attorneys from across the 
State. They reviewed and they vetted all of the applicants.
  Nearly four dozen attorneys from around the State of Wyoming 
expressed an interest in this position. Mr. Honaker was selected from a 
very competitive and highly qualified pool of Wyoming attorneys. 
President Bush agreed with the recommendation, and he sent Mr. 
Honaker's name and nomination to the Senate March 19, 2007--over a year 
  Senators Thomas and Enzi and I all notified the committee over time 
that the home State Senators support this nomination.
  Well, the nomination languished in the Senate Judiciary Committee 
until February 12 of this year. That is when a nomination hearing was 
finally held. Four nominees were considered that day. Mr. Honaker was 
the only nominee at the hearing that received the ``gold star'' seal of 
approval by the American Bar Association, and that is a unanimous 
``well qualified'' rating.
  The American Bar Association interviewed more than 50 Wyoming 
attorneys and judges to come to the conclusion that Mr. Honaker is well 
qualified to serve on the bench.
  Despite this unanimous support of the home State Senators and the 
American Bar Association, Mr. Honaker continues to be denied a vote in 
the Judiciary Committee.
  To put Mr. Honaker's situation into context, two of the other 
nominees who appeared at that February 12 hearing received a committee 
vote and were approved by the Senate back in April.
  Mr. Honaker is an outstanding attorney. He is widely regarded by his 
peers. It is evidenced by the fact that he is the first attorney in the 
history of Wyoming, in our 118 years of statehood, to serve Wyoming 
both as president of the Wyoming State Bar Association and the Wyoming 
Trial Lawyers Association. He has earned the respect of the legal 

  As I mentioned, the Standing Committee on the Federal Judiciary of 
the American Bar Association unanimously--unanimously--voted that Mr. 
Honaker is well qualified. His 30-plus years of legal work is 
exemplary. There is no question at all that he is ready to fill the 
seat for which he has been nominated.
  I know Mr. Honaker. I respect him as an individual. I admire his 
legal abilities and his passion and his love of the

[[Page S6902]]

law. That respect is shared by many of Wyoming's finest legal minds. 
Words I have heard from members of the Wyoming bar to describe Mr. 
Honaker: bright, fair, civil, ethical, passionate about his clients, 
and devoted to the law. He expects the same of others that he requires 
of himself: be well prepared, observe the rules of courtroom procedure 
and decorum, treat every person in the courtroom--whether lawyer, 
litigant, witness, or juror--treat every person in the courtroom with 
the greatest measure of courtesy and respect.
  There is no more qualified person to serve on the Federal bench in 
the District of Wyoming than Richard Honaker. You don't have to take my 
word for it. Ask the attorneys of Wyoming or of the American Bar 
Association. This outstanding nominee deserves the courtesy of a vote 
in the committee and consideration by the full Senate. That courtesy is 
long overdue.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WYDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Salazar). Without objection, it is so 
  Mr. WYDEN. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.