(Senate - October 13, 2011)

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[Pages S6484-S6494]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION


                     SOUTHERN DISTRICT OF NEW YORK





  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations 
which the clerk will report.
  The bill clerk read the nominations of Alison Nathan, of New York, to 
be United States District Judge for the Southern District of New York; 
Susan Owens Hickey, of Arkansas, to be United States District Judge for 
the Western District of Arkansas; and Katherine B. Forrest, of New 
York, to be United States District Judge for the Southern District of 
New York.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
hours for debate with respect to those nominations, with the time 
equally divided in the usual form.
  Mr. LEAHY. Mr. President, I ask unanimous consent that--it is now 10 
minutes past 12--the 2 hours be deemed as having begun at 12 so the 
first vote will be at 2 o'clock.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. With the time equally divided as under the normal 
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S6485]]

  Mr. LEAHY. And that the time in quorum calls be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. With votes today on 3 of the 30 judicial nominations 
reported favorably by the Judiciary Committee, the Senate will complete 
action on the nominations that were part of the unanimous consent 
agreement reached 3 weeks ago, prior to the last recess.
  I want to thank the majority leader for pressing at that time for 
Senate votes on all 27 of the judicial nominations then on the 
Executive Calendar. Unfortunately, the Republican leadership would 
consent to vote on only 10 of those long-stalled nominations. So even 
after today's vote, we are back where we started with 27 judicial 
nominations on the calendar awaiting final action by the Senate.
  Like the nominations we considered last week and earlier this week, 
all three of the district court nominations the Senate considers today 
were reported favorably by the committee months ago with strong 
bipartisan support. They have all been fully considered by the Senate 
Judiciary Committee. They have all been through a thorough vetting 
process. They were all ready for a final Senate vote well before the 
August recess, but we are only considering them now, halfway through 
  As I said when the Senate returned from the September recess with 
votes on six long-pending nominations, I hope that these votes are an 
end to the unnecessary stalling by Senate Republicans on nominations. I 
hope that the Senate will build on these votes and make real progress 
in addressing the crisis in judicial vacancies that has gone on for far 
too long, to the detriment of our courts and the American people. Votes 
on four to six judicial nominees a week cannot be the exception if we 
are going to bring down a judicial vacancy rate that remains above 10 
percent, with 92 vacancies on Federal courts across the country. Votes 
on four to six nominations would be required throughout the year to 
make a real difference. I hope my friends on the other side of the 
aisle will join together with us to end their insistence on harmful 
delay for delay's sake.
  We need a return to regular order where the timely consideration of 
consensus, qualified nominees is not the exception but the rule. With 
Republican agreement, we could vote today on all 30 of the nominations 
reported by the Committee. Of the 27 judicial nominations that will 
remain on the Executive Calendar tomorrow, 24 of them were reported 
with unanimous support of every single Democrat and every single 
Republican serving on the Judiciary Committee. All of them have the 
support of their home State Senators, including 13 who have the support 
of Republican home State Senators.
  I have served in the Senate for years, with both Republican 
leadership and Democratic leadership, Republican Presidents and 
Democratic Presidents. Especially for district courts, when nominees 
were voted out of the committee with a bipartisan majority or voted out 
unanimously, they were voice-voted within a matter of weeks. That has 
changed: under President Obama, Republicans are delaying judges who 
were voted on unanimously by every Republican and Democrat in the 
Judiciary Committee. I do not think that is right.
  The path followed by the Senate in considering the nomination of 
Judge Jennifer Guerin Zipps is the path that should be followed with 
all consensus nominations. Judge Zipps was nominated to fill the 
emergency judicial vacancy created by the tragic death of Judge Roll in 
the Tucson, Arizona shootings. I was pleased that, with cooperation 
from Republican Senators, the time from when the Judiciary Committee 
reported Judge Zipps' nomination to full Senate consideration was less 
than 1 month, even including a recess period. It should not take a 
tragedy to spur us to action to fill a judicial emergency vacancy. 
Indeed, the time it took the Senate to consider Judge Zipps' nomination 
was in line with the average time it took for the Senate to consider 
President Bush's unanimously reported judicial nominations--28 days. It 
is regrettable that her nomination has become the exception for 
President Obama's consensus nominations. Those nominations which have 
been reported with the unanimous support of every Republican and 
Democrat on the Judiciary Committee have waited an average of 76 days 
on the Executive Calendar before consideration by the Senate.
  Senator Grassley and I have worked together to ensure that the 
Judiciary Committee makes progress on nominations. Earlier today, the 
committee reported another five judicial nominations, four of which 
have Republican home state Senators in strong support. Two of those 
nominations will fill judicial emergency vacancies in Florida and Utah. 
There is no need for the Senate to wait weeks and months before voting 
on these nominations. There is no need for the Senate Republican 
leadership to continue the unnecessary delays in our consideration of 
judicial nominations that have contributed to the longest period of 
historically high vacancy rates in the last 35 years. The number of 
judicial vacancies rose above 90 in August 2009, and it has stayed near 
or above that level ever since. We must bring an end to these needless 
delays in the Senate so that we can ease the burden on our Federal 
courts so that they can better serve the American people.
  More than half of all Americans--almost 170 million--live in 
districts or circuits that have a judicial vacancy that could be filled 
today if Senate Republicans just agreed to vote on those nominations 
that were reported favorably by Republicans and Democrats on the 
Judiciary Committee. As many as 25 States are served by Federal courts 
with vacancies that would be filled by these nominations. Millions of 
Americans across the country are harmed by delays in overburdened 
courts. When most people go to court they do not consider themselves 
Republicans or Democrats; they just know they have a reason to go to 
court. But they now find many vacant judgeships. They cannot get their 
cases heard, and justice delayed is, as we know, justice denied.
  As I have said, we have 27 judicial nominations remaining on the 
calendar--24 of them voted for unanimously. I ask the Republican 
leadership to explain to the American people why they will not consent 
to vote on the qualified consensus candidates nominated to fill these 
extended judicial vacancies.
  The delays which have led to the damaging backlog in judicial 
nominations is compounded by the unprecedented attempt by some on the 
other side of the aisle to create what I consider misplaced 
controversies about the records of what should be consensus district 
court nominees. This approach has threatened to undermine the long-
standing deference given to home State Senators who know the nominees 
and the needs of their states best. I am glad we are finally going to 
vote today on the nominations of Alison Nathan to the Southern District 
of New York and Susan Hickey to the Western District of Arkansas, but I 
hope Senators will not raise the kind of selective and unfair questions 
about the qualifications of these two fine nominees which were never 
raised about President Bush's judicial nominees.
  Alison Nathan is currently Special Counsel to the Solicitor General 
of New York, having earned the Louis J. Lefkowitz Memorial Achievement 
Award for her work there last year. Ms. Nathan previously had a 
successful career in private practice at a national law firm, as a 
professor at two New York law schools, and as an Associate White House 
Counsel. She clerked for Supreme Court Justice John Paul Stevens and 
Judge Betty Fletcher of the Ninth Circuit Court of Appeals.
  Ms. Nathan's nomination has the strong support of both her home State 
Senators. Senator Schumer rightfully praised her intellect and her 
accomplishments when he introduced her to the Judiciary Committee. Half 
of the Republicans on the Judiciary Committee joined all of the 
Democrats in voting to report her nomination favorably. However, some 
in committee raised concerns about Ms. Nathan's qualifications, citing 
her rating by a minority of the ABA's Standing Committee on the Federal 
Judiciary as ``not qualified.'' I note that a majority of the ABA 
Standing Committee rated her ``qualified'' to serve. I also note that 
Ms. Nathan's ABA rating is equal to or better than the rating received 
by 33 percent of President Bush's confirmed judicial nominees, who were

[[Page S6486]]

supported by nearly every Republican Senator. Her rating is better than 
the four of President Bush's nominees who were confirmed despite a 
``not qualified'' rating by the majority of the ABA's Standing 
Committee, including two nominees to the Eastern District of Kentucky, 
David L. Bunning and Gregory F. Van Tatenhove, who were supported by 
the Republican leader. The Senate deferred to the recommendations of 
the home State Senators in considering President Bush's nominations and 
confirmed nominees from Alabama, Utah, Arizona and Oklahoma, among 
other States, who had received a partial rating of ``not qualified.''
  There is no question that the Senate should confirm Ms. Nathan. As 
her resume shows, she is an accomplished nominee with significant 
experience in private practice, academia and government service. 
Twenty-seven former Supreme Court clerks have written to the Judiciary 
Committee in support of her qualifications, including clerks who worked 
for the conservative Justices. They write:

       Although we hold a wide range of political and 
     jurisprudential views, all of us believe Ns. Nathan has the 
     ability, character, and temperament to be an excellent 
     Federal district court judge. We recommend her for this 
     position without hesitation and without reservation.

  I support Ms. Nathan's nomination without reservation, and hope that 
Senators from both sides of the aisle will join me in supporting this 
worthy nominee.
  The Senate will also vote today to confirm the nomination of Judge 
Susan Hickey to the Western District of Arkansas. Judge Hickey has the 
bipartisan support of her home State Senators, Democratic Senator Mark 
Pryor and Republican Senator John Boozman, both of whom have praised 
her background and qualifications in introducing her to the Committee. 
A majority of Republicans joined every Democratic Senator on the 
Judiciary Committee in voting to report her nomination. Yet because she 
spent a significant part of her career as a law clerk and took a hiatus 
from law practice while on family leave, some have questioned whether 
she is qualified to serve on the Federal bench. In my view, and the 
view of her home State Senators--one Democratic and one Republican--
those concerns are misplaced.
  Currently a State court judge serving in the Thirteenth Judicial 
Circuit in Arkansas, Judge Hickey was previously a career law clerk for 
the Honorable Judge Barnes, whom she is nominated to replace. During 
her confirmation hearing, Judge Hickey testified about the experience 
she gained as a career law clerk to Judge Barnes, saying that she 
``[took] part in all matters that were before the court from the time 
that the case was filed till the final disposition.'' She testified 
about the cases she has managed as a State Court Judge, and her 
experience litigating bench trials and jury trials. The ABA Standing 
Committee on the Federal Judiciary unanimously rated Judge Hickey 
``qualified'' to serve on the Federal bench. I hope that she will be 
confirmed with bipartisan support.
  The Senate today will also finally consider the nomination of 
Katherine Forrest to fill another vacancy on the Southern District of 
New York. Currently a Deputy Assistant Attorney General in the 
Antitrust Division of the Department of Justice, she previously spent 
over 20 years as a litigator in private practice at the law firm 
Cravath, Swaine & Moore in New York City, where she was named one of 
America's Top 50 litigators under the age of 45. The ABA Standing 
Committee on the Federal Judiciary unanimously rated Ms. Forrest ``well 
qualified'' to serve, its highest possible rating. The Judiciary 
Committee favorably reported Ms. Forrest's nomination without dissent 
three months ago.

  In the weeks ahead, I hope that we continue to consider more of the 
27 judicial nominees, nearly all of whom are the kind of consensus 
nominees we could consider within days. We have an enormous amount of 
ground to recover. At this point in George W. Bush's presidency, the 
Senate had confirmed 162 of his nominees for the Federal circuit and 
district courts, including 100 during the 17 months that I was chairman 
of the Judiciary Committee during his first term. By this date in 
President Clinton's first term, the Senate had confirmed 163 of his 
nominations to circuit and district courts. In stark contrast, after 
today's vote, the Senate will have confirmed only 108 of President 
Obama's nominees to Federal circuit and district courts. As a result, 
vacancies are twice as high as they were at this point in President 
Bush's first term when the Senate was expeditiously voting on consensus 
judicial nominations. In the next year, we need to confirm nearly 100 
more of President Obama's circuit and district court nominations to 
bring the vacancies down to match the 205 confirmed during President 
Bush's first term.
  We can and must do better to address the serious judicial vacancies 
crisis on Federal courts around the country that has persisted for over 
2 years. We can and must do better for the nearly 170 million Americans 
being made to suffer by these unnecessary delays.
  Again, I apologize for my voice, I thank the ranking member for his 
help, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, today we continue in our cooperation 
with the majority as we vote on three more judicial nominees. With a 
confirmation earlier this week, and six judicial confirmations last 
week, I want to note the progress we have made.
  After today's votes, we will have confirmed 68 percent of President 
Obama's judicial nominees submitted during his presidency. We remain 
ahead of the pace set forth in the 108th Congress. We have already held 
hearings for over 84 percent of President Obama's judicial nominees 
this Congress, while at this point in the 108th Congress, only 77 
percent of President Bush's judicial nominees had their hearing.
  This morning, the Judiciary Committee reported five more nominees to 
the Senate floor, totaling over 77 percent of President Obama's 
judicial nominees receiving favorable votes out of committee. That is 
compared to only 72 percent of President Bush's judicial nominees 
receiving favorable outcomes at this point in the 108th Congress. This 
indicates the bipartisan effort taking place to move consensus nominees 
forward, despite what we hear from the other side about obstruction and 
  The advice and consent function of the Senate is a critical step in 
the process. In the Federalist Papers No. 76, Alexander Hamilton wrote:

       To what purpose then require the co-operation of the 
     Senate? I answer, that the necessity of their concurrence 
     would have a powerful, though, in general, a silent 
     operation. It would be an excellent check upon a spirit of 
     favoritism in the President, and would tend greatly to 
     prevent the appointment of unfit characters from State 
     prejudice, from family connection, from personal attachment, 
     or from a view to popularity.

  In other words, the Senate has a role in preventing the appointment 
of judges who are simply political favorites of the President, or of 
those who are not qualified to serve as Federal judges.
  Also, let me remind my colleagues of what then-Senator Obama stated 
about this duty 6 years ago in connection with the attempted filibuster 
of Janice Rogers Brown. Our President, then Senator, said:

       Now, the test for a qualified judicial nominee is not 
     simply whether they are intelligent. Some of us who attended 
     law school or were in business know that there are a lot of 
     real smart people out there whom you would not put in charge 
     of stuff. The test of whether a judge is qualified to be a 
     judge is not their intelligence. It is their judgment.

  A few months later, on January 26, 2006, when debating the Alito 
nomination, then-Senator Obama said:

       There are some who believe that the President, having won 
     the election, should have the complete authority to appoint 
     his nominee, and the Senate should only examine whether or 
     not the Justice is intellectually capable and an all-around 
     nice guy. That once you get beyond intellect and personal 
     character, there should be no further question whether the 
     judge should be confirmed. I disagree with this view. I 
     believe firmly that the Constitution calls for the Senate to 
     advise and consent. I believe that it calls for meaningful 
     advice and consent that includes an examination of a judge's 
     philosophy, ideology, and record.

  You can see some differences between what Senator Obama said on a 
couple of different occasions on the Senate floor and also how there is 
some disagreement with what Alexander Hamilton said in the Federalist 
Papers No. 76.

[[Page S6487]]

  Our inquiry of the qualifications of nominees must be more than 
intelligence, a pleasant personality, or a prestigious clerkship. At 
the beginning of this Congress, I articulated my standards for judicial 
nominees. I want to ensure that the men and women who are appointed to 
a lifetime position in the Federal judiciary are qualified to serve. 
Factors I consider important include intellectual ability, respect for 
the Constitution, fidelity to the law, personal integrity, appropriate 
judicial temperament, and professional competence.
  In applying these standards, I have demonstrated good faith in 
ensuring fair consideration of judicial nominees. I have worked with 
the majority to confirm consensus nominees. However, as I have stated 
more than once, the Senate must not place quantity confirmed over 
quality confirmed. These lifetime appointments are too important to the 
Federal judiciary and the American people to simply rubber stamp them.
  Although we have had a long run of confirming consensus nominees, two 
of the nominees on which we are about to vote come with some 
reservations. Ms. Nathan and Judge Hickey both have had limited 
experience in the courtroom. They have failed to meet even the minimum 
qualifications that the ABA says it uses in the rating process. The 
guidelines of the Standing Committee of the ABA provide:

       . . . a prospective nominee to the Federal bench ordinarily 
     should have at least 12 years experience in the practice of 

  They further state:

       Substantial courtroom and trial experience as a lawyer or 
     trial judge are important.

  I want to emphasize the American Bar Association 12-year standard is 
not an absolute. However, it is a benchmark that we can use to evaluate 
the experiences of various nominees. As I have said in the past, being 
appointed a Federal district judge should be a capstone of an 
illustrious career. Federal judges should have significant courtroom 
and trial experience as a litigator or a judge. I would note that last 
week at our hearing, Justice Scalia expressed concern about the decline 
in the quality of Federal judges.
  With regard to the two non-consensus nominations before us today, I 
voted to advance them out of the Judiciary Committee so the full Senate 
could evaluate their qualifications. However, both of these nominees 
received votes in opposition in our committee. After they were 
reported, we had our second opportunity to examine their records, and 
unfortunately I am unable to support them on the floor.
  I am, however, pleased to support the nomination of Katherine B. 
Forrest to be United States District Judge for the Southern District of 
New York.
  In Ms. Nathan's case, she graduated from law school only 11 years 
ago, and has been admitted to the practice of law for only 8 years. Her 
questionnaire states she served as associate counsel on approximately 
six trial court litigation matters. Most of the significant litigation 
she lists is from her current position in the New York Solicitor 
General's Office.

  In addition, I am concerned about her views on second amendment 
rights, on the death penalty, on the use of foreign law, and her 
remarks regarding the Bush administration's war on terror.
  Judge Hickey has served as a State court judge for about 1 year. Her 
questionnaire indicates she has presided over two criminal bench 
trials--a speeding-DWI case and a second speeding case. Prior to that, 
she spent about 7 years as a senior law clerk in the Western District 
of Arkansas. Early in her career, from 1981 to 1984, she was a staff 
attorney with Murphy Oil Company. Altogether, I am not sure we can get 
to 12 years of legal-judicial experience--the minimum the American Bar 
Association committee says a nominee to the courts should have. 
Furthermore, Judge Hickey has no litigation experience. She has tried 
no cases.
  I want to be very clear here--I am not denigrating the career choices 
of these nominees, nor am I arguing that the experience they have is 
unrelated to service as a Federal judge. What I am saying is they do 
not have enough experience, and this is not the place for on-the-job 
  Let me say a bit more about the background of the nominees we are 
considering today.
  Two nominees have been nominated to serve as United States District 
Judge for the Southern District of New York--Katherine B. Forrest and 
Alison J. Nathan.
  Since graduating from New York University School of Law in 1990, Ms. 
Forrest has spent the vast majority of her legal career as an attorney 
at Cravath, Swayne, & Moore. She served as an associate at the firm 
from 1990 to 1997 and a partner from 1998 to 2010. While at Cravath, 
Swayne, & Moore, Ms. Forrest was a generalist litigator who practiced 
in the areas of antitrust, intellectual property, contracts, employment 
law, accounting fraud, and securities litigation.
  In addition, Ms. Forrest was involved in the management of the firm, 
serving on the Partner Review Committee. She also ran the firm's 
Continuing Legal Education Program from 1998 to 2005.
  Ms. Forrest has been a deputy assistant attorney general in the 
Department of Justice's antitrust division since 2010. She is involved 
in most major matters the division handles, including litigation 
planning and execution, appellate litigation, and international 
cooperation. She has a unanimous rating of ``Well Qualified'' by the 
ABA Standing Committee on the Federal Judiciary.
  Ms. Nathan graduated with a B.A. from Cornell University in 1994 and 
with a J.D. from Cornell Law School in 2000. Upon graduation, she 
clerked for Judge Betty Fletcher of the Ninth Circuit Court of Appeals 
from 2000 to 2001. From 2001 to 2002, Ms. Nathan clerked for Justice 
John Paul Stevens of the Supreme Court of the United States.
  Ms. Nathan entered private practice with Wilmer, Cutler, Pickering 
Hale & Don LLP, serving as an Associate in the Washington, DC, office 
as well as the New York office. She practiced within the Litigation 
Group, the Supreme Court and Appellate Litigation Group, and the 
Regulatory and Government Affairs Group.
  From 2006 to 2008, Ms. Nathan worked as a visiting assistant 
professor of law at Fordham University School of Law. In this role she 
taught civil and criminal procedure and constitutional law. From 2008 
to 2009, Ms. Nathan also served as the Fritz Alexander fellow at New 
York University School of Law, engaged in legal research.
  In 2009, Ms. Nathan secured a position with the White House Counsel's 
Office. As an associate White House counsel and Special Assistant to 
the President, Ms. Nathan reviewed legislation, analyzed and advised 
staff on legal issues, and assisted in the preparation of judicial and 
executive branch nominees for confirmation hearings.
  In July 2010, Ms. Nathan returned to New York and began to work as a 
Special Assistant to the Solicitor General of New York. A majority of 
the ABA Standing Committee on the Federal Judiciary rated Ms. Nathan as 
``Qualified.'' A minority rated her as ``Not Qualified.''
  And finally, Susan Owens Hickey, who is nominated to be a United 
States District Judge for the Western District of Arkansas. Ms. Hickey 
graduated from the University of Arkansas School of Law in 1981. In 
April of that year, she worked for the law firm of Brown, Compton & 
Prewett, where she worked on the pretrial preparation and trial of a 
personal injury case that the firm was defending. From 1981 to 1984, 
Ms. Hickey worked as a staff attorney for the Murphy Oil Corporation. 
In that role, she worked primarily on issues involving natural gas, 
securities and corporate law.
  From 1984 to 2003, Ms. Hickey was not employed or actively engaged in 
the practice of law, with the exception of serving as a temporary law 
clerk. During the summer of 1997 and during the summer of 1998 Ms. 
Hickey served as a temporary law clerk for the Honorable Harry F. 
Barnes, United States District Judge for the Western District of 
  Ms. Hickey returned to work for that same judge in 2003, serving as a 
senior career law clerk, and she stayed in that position until 2010.
  In September 2010, Ms. Hickey was appointed circuit judge for the 
Thirteenth Judicial Circuit of Arkansas. Ms. Hickey received a 
unanimous ``Qualified'' rating from the ABA Standing Committee on the 
Federal Judiciary.
  Mr. GRASSLEY. Mr. President, I suggest the absence of a quorum.

[[Page S6488]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as if in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                         Terrorist Prosecution

  Mr. DURBIN. Mr. President, my Republican colleagues have frequently 
come to the Senate floor to criticize President Obama for his handling 
of terrorism cases. They have argued regularly and consistently that 
terrorism suspects should never be interrogated by the FBI and should 
not be prosecuted in America's criminal courts but, instead, they 
argue, they should only be held in military detention and prosecuted in 
military commissions.
  Today, I have noticed no one on the Republican side has come to the 
Senate floor to make those arguments. Why not? It may be because 
yesterday Umar Farouk Abdulmutallab pled guilty in Federal court to 
trying to explode a bomb in his underwear on a flight to Detroit on 
Christmas Day 2009. Mr. Abdulmutallab, who will be sentenced in 
January, is expected to serve a life sentence.
  I commend the men and women at the Justice Department and the FBI for 
their work on this case. America is a safer country today thanks to 
  My colleagues on the other side were very critical of the FBI's 
decision to give Miranda warnings to Abdulmutallab. Let me quote 
Senator McConnell, the minority leader. This is what he said on the 
floor of the Senate:

       He was given a 50-minute interrogation.

  He was referring to Abdulmutallab.
  The Senator went on to say:

       Probably Larry King has interrogated people longer and 
     better than that. After which he was assigned a lawyer who 
     told him to shut up.

  That is an interesting statement, but here are the facts. Experienced 
counterterrorism agents from the FBI interrogated Abdulmutallab when he 
arrived in Detroit. According to the Justice Department, during this 
initial interrogation, the FBI ``obtained intelligence that proved 
useful in the fight against al Quida.'' After this initial 
interrogation, Abdulmutallab refused to cooperate further with the FBI. 
Only then, after Abdulmutallab stopped talking, did the FBI give him a 
Miranda warning.
  What the FBI did in this case was nothing new. During the Bush 
administration, the FBI consistently gave Miranda warnings to 
terrorists detained in the United States.
  Here is what Attorney General Holder said:

       Across many administrations, both before and after 9/11, 
     the consistent, well-known, lawful, and publicly-stated 
     policy of the FBI has been to provide Miranda warnings prior 
     to any custodial interrogation conducted inside the United 

  In fact, under the Bush administration, they adopted new policies for 
the FBI that say that ``within the United States, Miranda warnings are 
required to be given prior to custodial interviews.''
  Let's take one example from the Bush administration: Richard Reid, 
also known as the Shoe Bomber. Reid tried to detonate an explosive in 
his shoe on a flight from Paris to Miami in December 2001. This was 
very similar to the attempted attack by Abdulmutallab, another foreign 
terrorist who also tried to detonate a bomb on a plane. So how does the 
Bush administration's handling of the Shoe Bomber compare with the 
Obama administration's handling of the Underwear Bomber? The Bush 
administration detained and charged Richard Reid as a criminal. They 
gave Reid a Miranda warning within 5 minutes of being removed from the 
airplane, and they reminded him of his Miranda rights four times within 
the first 48 hours he was detained.
  Later, Abdulmutallab began talking again to FBI interrogators and 
providing valuable intelligence. FBI Director Robert Mueller, for whom 
I have the highest respect, described it this way:

       Over a period of time, we have been successful in obtaining 
     intelligence, not just on day one, but on day two, day three, 
     day four, and day five, down the road.

  Now, how did that happen? How did the FBI get even more information 
from the suspect after they gave the Miranda warning? The Obama 
administration convinced Abdulmutallab's family to come to the United 
States, and his family persuaded him to start talking to the FBI. That 
is a very different approach than we have heard in previous 
administrations. Sometimes when a detainee refused to talk, in the Bush 
administration, in some isolated cases, there were extreme techniques 
used to try to get information from him, such as waterboarding. But 
real life isn't the TV show ``24.'' On TV, when Jack Bauer tortures 
somebody, the suspect immediately admits everything he knows. Here is 
what we learned during the previous administration: In real life, when 
people are tortured, they lie. They will lie and say anything to make 
the pain stop. Oftentimes they provide false information, not valuable 
  Richard Clarke was the senior counterterrorism adviser to President 
Clinton and President George W. Bush. Here is what he said about the 
Obama administration's approach:

       The FBI is good at getting people to talk. They have been 
     much more successful than the previous attempts of torturing 
     people and trying to convince them to give information that 

  Many of my colleagues on the other side of the aisle argue that 
Abdulmutallab should have been held in military detention as an enemy 
combatant, but terrorists arrested in the United States have always 
been held under our criminal laws.
  Here is what Attorney General Holder said:

       Since the September 11, 2011 attacks, the practice of the 
     U.S. government, followed by prior and current 
     administrations without a single exception, has been to 
     arrest and detain under Federal criminal law all terrorist 
     suspects who are apprehended inside the United States.

  Many of my Republican colleagues also argue that terrorists such as 
Umar Abdulmutallab should be tried in military commissions because 
Federal courts are not well-suited to prosecuting terrorists.
  That argument is simply wrong. Look at the facts. Since 9/11, more 
than 200 terrorists have been successfully prosecuted and convicted in 
our Federal courts. Here are just a few of the terrorists who have been 
convicted in Federal courts and are serving long prison sentences: 
Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; 
Omar Abdel Rahman, the so-called Blind Sheik; the 20th 9/11 hijacker, 
Zacarias Moussaoui; Richard Reid, the Shoe Bomber; Ted Kaczynski, the 
Unabomber; Terry Nichols, the Oklahoma City coconspirator; and now 
Abdul Abdulmutallab. Compare this with the track record of military 
commissions. Since 9/11, only 4 individuals have been convicted by 
military commissions--more than 200 in the courts, 4 in military 
commissions--and 2 of those individuals spent less than 1 year in 
prison, having been found guilty by a military commission, and are now 
living freely in their home countries of Australia and Yemen.
  GEN Colin Powell, the former head of the Joint Chiefs of Staff and 
Secretary of State under President Bush, supports prosecuting 
terrorists in Federal courts. Here is what he said about military 
commissions. This is from General Powell:

       The suggestion that somehow a military commission is the 
     way to go isn't borne out by the history of the military 

  Many military commissions, when it comes to terrorism cases, are an 
unproven venue, unlike Federal courts.
  Former Bush administration Justice Department officials James Comey 
and Jack Goldsmith also support prosecuting terrorists in Federal 
court. Here is what they said:

       There is great uncertainty about the commissions' validity. 
     This uncertainty has led to many legal challenges that will 
     continue indefinitely. . . . By contrast, there is no 
     question about the legitimacy of U.S. Federal courts to 
     incapacitate terrorists.

  I say to my colleagues, after a steady parade of speeches on this 
Senate floor by the Senate Republican leader and others about how we 
cannot trust our Federal court system to prosecute terrorists, how we 
should take care to never let the FBI do this important job, the facts 
speak otherwise.
  In Detroit, in the Federal court, we should give credit where it is 
due. The

[[Page S6489]]

FBI did its job. Our courts did their job. The Department of Justice 
prosecutors did their job. Abdulmutallab pled guilty. He pled guilty 
because the evidence was overwhelmingly against him. He was convicted 
openly in the courts of America, which is an important message to send 
to the rest of the world, and he will pay a heavy price--a life 
sentence--for his terrible attempt to down an aircraft in the United 
States. That prosecution and that confession were obtained in our court 
  To argue that military commissions are the only way to go and that 
using the FBI and Department of Justice and our article III courts as a 
venue for terrorism is wrong is not proven by the facts, the evidence, 
or the most recent information coming forward. I would hope some of my 
colleagues who are now holding up the Defense authorization bill on 
this issue will at least be hesitant to argue their case now that the 
Abdulmutallab prosecution has been successfully completed. Over 200 
terrorists have been successfully prosecuted in America's courts.
  My message to them and I think the message of America to every 
President is, you use the court, you use the agency you think will be 
most effective in protecting America. Congress should not tie the hands 
of any President when it comes to this important prosecution. This 
success that we have seen in Detroit is evidence that if we give to a 
President--whether it is a Republican or Democratic President--the 
tools to prosecute those accused of terrorism, the President can use 
them wisely, sometimes in military commissions but more often in our 
court system, an open system that says to the world we can bring the 
suspected terrorist to justice and do it in a fashion consistent with 
American values.

  I hope all of my colleagues, Democrats and Republicans, will join me 
in commending the Justice Department and FBI for their success in 
bringing Abdulmutallab to justice, and I sincerely hope this case will 
cause some Members of the body to reconsider their opposition to 
handling terrorism in the criminal justice system.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I ask unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                              The Economy

  Mr. DURBIN. Mr. President, the events of this week are an indication 
that much needs to be done in Washington to deal with the state of our 
economy. With 14 million Americans out of work, it is high time that 
both political parties find a way to develop a plan to move this 
country forward and to create jobs.
  When the President spoke to Congress a little over 4 years ago, he 
laid out at least the foundation of a plan and later provided the 
details. But time and again, President Obama has said to the Republican 
leadership: I am open to your ideas. Bring them forward. Let's put them 
in a combined effort to make America a stronger nation and to find our 
way out of this recession.
  Unfortunately, we have not heard suggestions from the other side. We 
had an important vote Tuesday night. Sadly, the Republican filibuster 
prevailed. Republicans, because they did not want to move the 
President's bill to consideration on the floor of the Senate, voted--
every single one of them--against President Obama's efforts to put 
America back to work. I do not think that is going to be a position 
which is easily defended back home. Whether one agrees or disagrees 
with President Obama, the American people expect Democrats and 
Republicans to enter a dialog to help this country. We have to give on 
the Democratic side, and they should be prepared to give on the 
Republican side, and let's try to find some common ground. There are 
too many instances where we fight to a face-off and then leave.
  The suggestion that yesterday's efforts to pass three free-trade 
agreements with South Korea, Panama, and Colombia are going to turn the 
economy around, I am not sure of being close to accurate. I supported 
two of those trade agreements, and I think they will help create jobs 
and business opportunities in America in the longer run but in the near 
term not likely so.
  What we need to do is to work on what has been proven to be 
successful to move this economy forward. Let's start with the basics. 
Working families struggle from paycheck to paycheck. Many families do 
not have enough money to get by. They are using food pantries and other 
help to survive in this very tough economy. So President Obama said the 
first thing we need to do is to give a payroll tax cut to working 
families so they have more money to meet their needs. What it boils 
down to in Illinois, where the average income is about $53,000 a year, 
is the equivalent of about $1,600 a year in tax cuts for working 
families. That is about $130 a month, which many Senators may not 
notice but people who are struggling to fill the gas tank and put the 
kids in school can use $130 a month.
  The President thinks that is an important part of getting America 
back on its feet and back to work, and I support it. That was one of 
the elements that was stopped by the Republican filibuster on Tuesday 
  The second proposal of the President is that we give tax breaks to 
businesses, particularly small businesses, to create an incentive for 
them to hire the unemployed, starting with our returning veterans. It 
is an embarrassment to think these men and women went overseas and 
risked their lives fighting an enemy and now have to come home and 
fight for a job. We ought to be standing by them, helping them to get 
to work, and that is one of the elements in the President's bill that 
was also defeated by the Republican filibuster on Tuesday night.
  The President went on to say we ought to be investing our money in 
America. If we put people to work, let's build something that has long-
term value. One of those he suggested was school modernization. I 
visited some schools around my State, and I am sure in the State of 
Colorado and other places there are plenty of school districts 
struggling because the tax base has been eroded by declining real 
estate values and these districts need a helping hand. When I went to 
Martin Grove and visited a middle school there, I found great teachers 
doing the best they could in classrooms where the tiles were falling 
from the ceiling and where the boiler room should be labeled an antique 
shop because it was a 50- or 60-year-old operation that was kept 
together with $150,000 of repairs each year. We ought to buy new 
equipment and install it in American schools so they can serve us for 
many years to come.
  The same holds true in investing in our infrastructure, whether it is 
highways, bridges or airports. Make no mistake, our competitors around 
the world are building their infrastructure to beat the United States, 
and those who want us to retreat in this battle are going to be 
saddened by the consequences if they have their way. President Obama 
said invest this money in putting Americans to work to build our 
infrastructure, rebuild our schools, build our neighborhoods in a way 
that serves us for years to come.
  The President is also sensitive to the fact that in many parts of 
America, including Illinois, there are school districts and towns that 
have had to lay off teachers and firefighters and policemen. It doesn't 
make us any safer, and it doesn't make our schools any more effective. 
Part of the President's jobs package is to make sure, for those 
teachers as well as policemen and firefighters, at least some of their 
jobs will be saved. In Illinois, over 14,000 of those jobs will be 
saved by the President's bill.
  What really brings this bill to a screeching halt in the debate is 
the fact the President said we should pay for this. Let's come up with 
the money that is going to pay for the things I just described. And his 
proposal is a simple one. It says those who make over $1 million a year 
will pay a surtax of 5.6 percent--over $1 million a year in income. 
That is over $20,000 a week in income. These folks would pay a 5.6-
percent surtax, and that surtax would pay for the jobs bill.

[[Page S6490]]

  If the jobs bill works, and I believe it will, I guarantee a thriving 
American economy will be to the benefit of those same wealthy people. 
So asking them to sacrifice a little in this surtax is not too much to 
  Unfortunately, although some 59 percent of Republicans support this 
millionaires' surtax, not one of them serves in the Senate. We need to 
have a bipartisan effort to make sure this is paid for in a reasonable 
way. The alternative we have heard from the other side that mounted 
this filibuster against President Obama's jobs bill is, we ought to 
return to the old way of doing things: tax cuts for wealthy people--not 
new burdens but tax cuts for wealthy people.
  They argue the people who make over $1 million a year are the job 
creators. That is a phrase they use, ``job creators.'' A survey came 
out yesterday from the Government Accountability Office, and what it 
said was 1 percent of those making over $1 million a year actually own 
small businesses. Most of them are investors. Although there is, I am 
sure, a worthy calling in being an investor, they are not the job 
creators they are described to be.

  So I say to my friends on the other side of the aisle, this notion of 
protecting those making over $1 million a year at the expense of a jobs 
program to move America forward is backwards. We have to come together, 
and I hope we can start as early as next week. We have to find 
provisions in this jobs bill we can agree on.
  I hope the Republicans would agree we should modernize our schools 
and build our infrastructure in this country. I hope they agree we 
should not shortchange our schools and our communities when they need 
teachers and policemen and firefighters. I hope they would agree that 
it is a national priority to put our returning veterans to work. I 
certainly think that should be a bipartisan issue.
  But the filibuster this week that stopped the President's jobs bill 
has stopped the discussion. The trade bills yesterday will not make up 
the difference. We have to focus on putting Americans to work with 
good-paying jobs right here in our Nation, creating new consumer demand 
for goods and services which will help businesses at every single 
level. The President has put his proposal forward and has challenged 
our friends on the other side of the aisle to step up and put their 
proposals forward.
  My suspicion is that most people in America would be delighted to see 
a breakthrough in Washington, DC, where Democrats and Republicans 
actually sat down at the same table and tried to work out a plan to put 
America back to work. We can do this. In order to do it we have to give 
on both sides. We have to forget about the election that is going to 
occur in November 2012 and focus on the state of America's economy 
right now in October 2011. If we put aside the campaign considerations 
and focus on the economy, I think we can get a lot done. I trust that 
there are some on the other side of the aisle who feel the same way. I 
hope they will break from their leadership on their filibuster and join 
us in this effort.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Blumenthal). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I wish to speak for a few moments on the 
nomination of Alison Nathan to be the United States District Court 
Judge for the Southern District of New York. This is a highly important 
position. It is one of the more prestigious courts in the country that 
handles the Nation's most complex cases. It is my observation, having 
practiced for over 15 years full time trying cases before Federal 
judges, that this position is of extreme importance and you need good 
judgment, good experience, good integrity, proven stability before you 
give a person a lifetime appointment to such a position. It is an 
important matter.
  I overwhelmingly vote for the nominees of the President. I believe in 
giving the President deference in those nominations. However, I do 
believe we need to hold Presidents accountable and to scrutinize the 
nominations in a fair way and not hesitate to push back and say no if a 
nominee does not meet those requirements that are necessary to be a 
good judge.
  I believe Ms. Nathan is one of a number of President Obama's nominees 
who believes that American judges should look to foreign law in 
deciding cases. She has other indications that suggest she is not 
committed in a deep and understanding way to the oath Federal judges 
take. That oath is that you serve under the Constitution and under the 
laws of the United States. That is so simple and so basic that it goes 
almost without saying, but it is a part of the historic oath judges 
take. I believe that oath and commitment to serving under the U.S. 
Constitution, under the U.S. laws, is critical to the entire foundation 
of the American rule of law. It is so magnificent. We have the greatest 
legal system in the world. By and large our Federal judges are 
excellent and it is a strength both for liberty and civil rights and 
economic prosperity that we maintain a judiciary at a high level.
  One of the things that causes me concern--there are several, but this 
one I will mention--is her belief that American judges should look to 
foreign law in deciding cases. This is not a little bitty matter. It is 
a matter of real national import. It offends people. Some people, 
nonlawyers, get offended. They think they should not do that. They are 
right, but just because people are upset about it and get angry about 
it doesn't mean it is not a deep, legitimate concern and can be a 
disqualifying factor as to whether a person should be on the bench. 
What law do they follow? The U.S. law or foreign law?
  In a book chapter published less than 2 years ago, Ms. Nathan 
suggested that the cases leading up to the Supreme Court case of Roper 
v. Simmons, which was a death penalty case, showed legal progress. In 
Roper the Court held it is unconstitutional to impose a death penalty 
even for the most heinous crime if the defendant is under the age of 18 
  As a matter of policy, I am not sure we should be executing people 
under 18, although a lot of people think that certain crimes are so bad 
they ought to be executed. We can disagree. That is a political 
decision. The question is, does the Constitution prohibit that? I 
suggest it does not. But if it does, it ought to be interpreted in 
light of its own words and the laws of the United States, its own 
import of the Constitution of the United States. Ms. Nathan seemed to 
commend the decision, however, on a different basis in her chapter. She 
commended it for ``elaborating upon relevant international and foreign 
law sources and defending the relevance of the Court's consideration of 
those sources.''
  When describing Justice Kennedy's change of opinion on the issue--he 
reversed himself--she said it was ``a change that can be attributed to 
the international human rights advocacy and scholarship that had taken 
place outside the courtroom walls.''
  She also praised the Roper attorneys for their ``strategic and savvy 
reference to international norms in litigating the case.''
  She asserted that the strategy's ``effectiveness holds promise and 
lessons for future advancement of international law.''
  She went further and suggested the reason the Supreme Court does not 
look to foreign law more often is because the Justices simply do not 
understand international law arguments--she has been practicing law 
about 10 years, or 9 at the time she wrote this, so she knows more 
about the issues related to international law than the Justices who 
have been on the bench for decades, many of them constitutional 
professors--rather than demonstrating a knowledge that the judge must 
serve under the U.S. Constitution and U.S. law and recognizing that 
foreign law has no place in deciding what our Constitution means.
  She stated:

       As these trends [in international law] continue, surely the 
     Court will increase its understanding and 
     `internationalization' of international human rights law 

  She then concluded:

       The presence of the Chinese judicial delegation at the 
     Supreme Court on the day of

[[Page S6491]]

     the Roper arguments wonderfully symbolized the rich dialogue 
     between international and constitutional norms.

  So what she is calling for there is a dialog, presumably between 
international law and constitutional norms--pretty plain in her 
writing--not just an off-the-cuff comment but in a serious book 
expressing her philosophy and approach to law.
  I am troubled by that. I believe judges have to be bound by the law 
and the Constitution. They are not free to impose their view. Justice 
Scalia and others have criticized--devastated--this international law 
argument. In my view, the debate that has gone forward in circles 
including the academy and law schools has clearly been a victory for 
the people who understand it is our Constitution that governs. We 
didn't adopt the laws of China, if they were ever enforced, which they 
are not except by the government when it suits them. We didn't adopt 
laws in France. We didn't adopt laws in Italy or Brazil or Yugoslavia. 
That is not what binds us. That is not what judges serve under. They 
serve under our law.
  I think it is a dangerous philosophy. It strikes at the heart of what 
the Anglo-American rule of law is all about--that law is adopted by the 
people of the United States and that is the law judges must enforce--
laws passed by the people of the United States.
  Reliance on foreign law, I believe, has been shown to be nothing more 
than a tool that activist judges who seek to reach outcomes they desire 
utilize. It is a way to get out from under the meaning of U.S. law. Why 
else would one cite it? If they cannot find a basis for their decisions 
in American law and legal tradition, they look to the laws and norms of 
foreign countries to justify their decisions. As Justice Scalia aptly 
described it--and he has hammered this theory--courts employing foreign 
law, including his own court--the U.S. Supreme Court--are merely 
``look[ing] over the heads of the crowd and pick[ing] out its 
  What did he mean by that? He means the law, the foundation principles 
of deciding cases. If they don't like what they find in the United 
States, they look out over their heads and they find somebody in Italy 
or Spain or China or wherever, and they say: We need to interpret our 
law in light of what they do in Germany. How bogus is that as an 
intellectual legal argument?
  Judges who engage in this type of activism violate their judicial 
oath, I believe. The oath is to serve under our Constitution, our laws. 
It requires judges to evaluate cases in that fashion--not the laws of 
other countries. Other countries don't have the same legal heritage we 
have. They don't value the same liberties and the same fundamental 
freedoms that are enshrined in our Constitution. The decisions of 
foreign courts have absolutely no bearing on a decision of a judge in a 
U.S. court, and nominees who disagree with that fundamentally can 
disqualify themselves from the bench.
  It is very hard for me to believe I should vote to confirm a nominee 
who is not committed to following our law, who believes they have a 
right to scrutinize the world, find some law in some other country and 
bring it home and use that law so they can achieve a result they wanted 
in the case.
  There are a number of other concerns I have with Ms. Nathan's record, 
not the least of which are her views on an individual's right to bear 
arms. We have a constitutional amendment on the right to keep and bear 
arms. The right to keep and bear arms should not be abridged. That is 
an odd thing, compared to France or Germany or Red China. But it is our 
law and we expect judges to follow it whether they like it or not. That 
is what our Constitution says.
  Suffice it to say, I believe her record evidences an activist 
viewpoint. Perhaps if she had more legal experience, she would have a 
better understanding of the role of a judge. She only just became a 
lawyer in 2000--11 years ago--and has had limited time in a courtroom.
  Evidently, the American Bar Association recognizes this. The ABA 
gives ratings to judges, and a minority of the members of that 
committee--not the majority but a minority--rate her ``not qualified.'' 
Frankly, they are a pretty liberal group, so I don't know if it is so 
much her views on some of these issues, but probably an actual 
evaluation of the kind of experience and background she brings and 
whether she would be qualified to sit on an important Federal district 
court--the Southern District of New York, one of the premier trial 
benches in the world, and even in America--and I think it is a matter 
we should consider.
  This is a very serious shortcoming for a number of reasons. 
Litigating in court is valuable experience. It provides insights to 
someone who would be a judge. It helps make them a better judge if they 
have had that experience. It gives them a strong understanding that 
words have meaning and consequences. When we see people get prosecuted 
for perjury or we see million-dollar contracts decided this way or that 
way based on the plain meaning of words, we learn to respect words.
  Some of these people out of law schools, with their activist 
philosophy, seem to think a judge has a right to allow their empathy 
and their feelings to intervene and decide cases based on something 
other than the words of the contract or the words of the Constitution. 
It is a threat to American law. Indeed, it is what President Obama has 
said a number of times. He believes judges should allow their empathy 
to help them decide cases.
  What is empathy? It is their personal views. Whom do we have empathy 
for? It depends on whom one likes before they come on the bench. So 
they are deciding cases based on factors other than the objective facts 
of the case. I believe the practice of law is a real legal testing 
ground, in which people can prove their judgment integrity over time. 
It also provides a maturing experience, where a person learns the 
import of decisions in how cases turn out and how it impacts their 
  Let me just say that seasoned lawyers develop reputations. When we 
have seen them in court many times and they have had experience there, 
people know if they have good judgment. People know if they are solid. 
We know they are men and women of integrity. They have that opportunity 
to establish a reputation. Both the short period of time that Ms. 
Nathan has spent actually practicing law and some of the troubling 
positions she has taken over the years justifiably raise serious 
questions about her understanding of the role of a judge in our system.
  Finally, I would note that Concerned Women For America, the Family 
Research Council, and the Judicial Action Group oppose this nomination. 
In a letter sent to all Senators today, Concerned Women For America 
noted that Ms. Nathan's:

     . . . biases are so ingrained and so much the main thrust of 
     her career that it is not rational to believe that she will 
     suddenly change once confirmed as a judge. Rather it is 
     reasonable to conclude she would use her position to 
     implement her own political ideology.

  I have reached the view that the facts as I have noted--her open 
defense of the idea that judges can use sources other than our law to 
decide cases and her lack of experience and proven record of good 
judgment and legal skill, the fact that a minority of the ABA Standing 
Committee on the Federal Judiciary found her not qualified to serve on 
the bench, justifies a vote in opposition to this nomination. I will 
not block the nomination. We will have an up-or-down vote. But I do 
think in my best judgment--and that is all I have, my best judgment--
after reviewing her resume, looking at how thin her experience is, and 
her positions on a number of issues, indicates to me that she has the 
real potential to be an activist judge, not faithful to the law. For 
that reason, I will vote no.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BOOZMAN. Mr. President, I agree with the Senator from Alabama. In 
Arkansas, it is so important that we get good judges nominated and 
confirmed, and that is why I rise in support of Susan Hickey's 
nomination as U.S. district judge for the Western District of Arkansas.
  Judge Hickey's distinguished career interests reflect her pursuit to 
serve the interests of justice. As an attorney and now as a circuit 
judge in my home State of Arkansas, she has earned the respect of the 
Arkansas legal community and proven she is devoted to fulfilling this 
important role in our judicial system.

[[Page S6492]]

  I am confident Judge Hickey's extensive experience with the legal 
system will serve her well on the Federal bench. Her confirmation will 
fill the seat of retired Judge Harry Barnes, whom she clerked for 
before her appointment as circuit judge in the Thirteenth Judicial 
District. She also worked in a private law firm following her 
graduation from the University of Arkansas School of Law and also 
served as an in-house counsel for Murphy Oil.
  Judge Hickey has strong bipartisan support for good reason: She has 
established herself as a dedicated public servant who possesses a 
strong work ethic and commitment to a fair and impartial legal system. 
Her experience and impartial demeanor and reputation amongst her peers 
give me faith that Judge Hickey will do a great job as the U.S. 
district judge for the Western District of Arkansas. When she was 
nominated for this position, Arkansans from all across the State 
expressed their support for her confirmation.
  I am honored to recommend that the Senate confirm Judge Susan Hickey 
as a U.S. district judge for the Western District of Arkansas. I am 
confident her experience and judicial temperament make her the right 
person to serve Arkansas as a district judge.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. Mr. President, I wish to thank my colleague for being here 
today and expressing his support for Susan Hickey to be a new Federal 
district court judge in the Western District of Arkansas. She has a 
strong record in our State. She is exactly what we need in a Federal 
judge. The fact that we have both home State Senators, one Democrat and 
one Republican, supportive of the nomination begins to speak volumes 
about the kind of person and the kind of reputation Susan Hickey has.
  She has been in both the public sector and private sector. She has 
worked inhouse with an oil company, as Senator Boozman said. But she 
has also law-clerked for a very solid and well-respected Federal judge.
  She is now a State court judge in Arkansas at the State trial court 
level. She has handled 313 felony criminal cases since she has been on 
the bench. She brings a lot of experience, and she is exactly the kind 
of person we need to be on the Federal bench.
  When I look at a judge candidate, a judge nominee, I always have 
three sets of criteria: One, are they qualified? Certainly, she is. She 
brings very strong qualifications and experience to this position.
  Second, can she be fair and impartial? I think that is something that 
comes up with Susan Hickey over and over and over. From her local bar 
down in south Arkansas, from the people in the community, the folks who 
have dealt with her, they all say she is an extremely fair person, and 
they have no doubt she will be impartial as she puts on that Federal 
district court robe.
  Then, my third criterion, does she have the proper judicial 
temperament? That, obviously, is subjective because that comes down to 
their personality and their style. But we want a Federal judge who has 
great demeanor, who is very good with the law, but also very good with 
lawyers because, obviously, in a trial court they have a lot of type A 
personalities in the court, and they have to give the proper appearance 
to the jury. That is critically important for a district court judge. 
So I would say, absolutely, yes, she has the right judicial 
  So I would strongly encourage all of my colleagues to vote favorably 
for Susan Hickey. Like I said, she has handled 1,690 total matters in 
the Federal courts since she has been a law clerk there.
  Mr. President, 313 total felony cases have been disposed of in her 
trial court in south Arkansas down in El Dorado. She has a lot of very 
solid legal experience. The bottom line is, she is just a good person, 
and people like her and respect her and they trust her.
  I think when our Founding Fathers put together the Federal judiciary, 
this was the kind of person they wanted. She reflects the values and 
the attitudes of that part of the State. She is smart. She is hard 
working. She is going to be fair. Really, we could not ask a whole lot 
more for any Federal judge in any district, and, certainly, she is 
going to do a great job down there.
  So I am proud to be joined by my friend and colleague from Arkansas 
to support this nomination. If we support her, and if we confirm her 
today, we will be joining thousands and thousands of people in south 
Arkansas who have supported her. We have had hundreds, I know, express 
support for her in my office. I am certain Senator Boozman has had many 
support her in his office as well.
  I encourage my colleagues to give her very strong consideration. She 
has been rated unanimously ``qualified'' by the American Bar 
  There, again, in that both home State Senators support her, the 
American Bar Association supports her, the Arkansas bar--not the 
association because they do not do those types of endorsements--but 
every lawyer I have talked to who knows Susan Hickey thinks she will do 
an outstanding job, I would like to ask my colleagues to vote for her 
nomination and I appreciate their consideration.
  With that, Mr. President, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I rise to speak today in support of two 
excellent nominees for the bench from the Southern District of New 
York. These two women, Alison Nathan and Katherine Forrest, have 
different backgrounds, but each in her own way represents the best the 
New York bar has to offer.
  Katherine Forrest is a young lawyer but an extraordinarily 
accomplished lawyer whose practice has been particularly well suited to 
the needs of litigants in the Southern District. She was born in New 
York City, received her BA from Wesleyan University, and her law degree 
from NYU Law School, one of the best in the country. She has spent the 
majority of her career in private practice at the prestigious, top-line 
firm of Cravath, Swaine & Moore, where she was on the National A List 
of Practitioners. She was named one of the American Lawyer's ``Top 50 
Litigators Under 45.'' She currently serves as a Deputy Assistant 
Attorney General in the Antitrust Division of the Department of 
Justice, where I know she is very well regarded and has served with 
great distinction. I look forward to Ms. Forrest's transition from 
position of service to our country to the other.
  I also rise in support of Alison Nathan. I would like to counter some 
of the arguments that have been made against her on the floor here 
  First, Alison Nathan has tremendous legal experience, albeit that she 
is young. She is a gifted young lawyer whom New Yorkers would be 
fortunate to have on the bench, hopefully for a long time. Although she 
is a native of Philadelphia, she has called New York City her home for 
some time. She graduated at the top of her class from both Cornell 
University and Cornell Law School, where she was editor-in-chief of the 
Cornell Law Review. She worked as a litigator for 4 years at the 
preeminent firm of WilmerHale and has also served in two of the three 
branches of government. Ms. Nathan clerked for Ninth Circuit Court of 
Appeals Judge Betty Fletcher and then for Supreme Court Justice John 
Paul Stevens. Recently, she served with distinction as a Special 
Assistant to President Obama and an Associate White House Counsel. She 
is currently special counsel to the solicitor general of New York. Now, 
that is a world of experience. It is hard to find better experience 
from somebody being nominated to the bench.
  Some of my colleagues have said: Well, her rating from the ABA was 
not as good and that was based on experience. That is what the ABA 
does. They claim, these colleagues, that Ms. Nathan lacks the 
experience to be confirmed as a judge because only a majority of the 
ABA rated her qualified, while a minority rated her not qualified.

[[Page S6493]]

  However, Ms. Nathan has the same qualification ratings as Bush 
administration judges whom this body confirmed. Specifically, the 
Senate confirmed 33 of President Bush's nominees with ratings equal to 
Ms. Nathan, including Mark Fuller and Keith Watkins of Alabama, 
Virginia Hopkins of the Northern District of Alabama, Paul Cassell of 
Utah, Frederick Martone of Arizona, and David Bury of Arizona. Are we 
going to have a different standard for Ali Nathan than for other 
judges? I sure hope not.
  Then some have brought up only recently--actually, very recently--the 
thought that Ms. Nathan would apply foreign law to our own laws. It is 
patently false to say that Ms. Nathan has suggested or that she 
believes it is appropriate for U.S. judges to rely on foreign law or 
that she herself would ever consider doing so. To the contrary. In 
response to written questions from Senator Grassley, she said 

       If I were confirmed as a United States District Court 
     Judge, foreign law would have no relevance to my 
     interpretation of the U.S. Constitution.

  Let's go through that quote again. This is in reference to a question 
from Senator Grassley:

       If I were confirmed as a United States District Court 
     Judge, foreign law would have no relevance--

  ``No relevance,'' my emphasis--

     to my interpretation of the U.S. Constitution.

  My colleagues are also wrong in their suggestion that Ms. Nathan has 
in the past either relied on foreign law herself or suggested that 
courts should do so. In the Baze vs. Rees case, she merely described 
the fact that others, including a law school clinic and Human Rights 
Watch, had argued in their own briefs that international law could be 
considered when dealing with questions of pain and suffering. 
Similarly, in her analysis of the Roper case, Ms. Nathan made an 
observation about what the Supreme Court had done--specifically, that 
the Supreme Court had cited foreign law as nondispositive support for 
their conclusion about the national consensus in the United States 
about the death penalty. That my colleagues jumped from these two 
instances in which Ms. Nathan described other peoples' opinions to 
conclusions about Ms. Nathan's own belief leads me to ask, are judicial 
candidates not allowed to describe the arguments that others have made? 
That would be rather absurd. I cannot imagine it is the outcome my 
colleagues would want, but it is the one to which their arguments 
naturally lead.
  Finally, on national security, where again some from the outside who 
have criticized Ms. Nathan have brought up national security, here is 
what she has said:

       I think it is important for a Federal district judge to 
     follow the Supreme Court. It is important to our national 
     security for there to be judges who follow the law in this 

  National security--

     to the extent questions come before them and that Congress 
     acts as it has in this area.

  That is good reason that she is supported by all of the law clerks 
she served with, including those of Justices Thomas, Scalia, Kennedy, 
and O'Connor. And obviously those Justices are not Justices who agree 
with some of the other Justices on the Court, but their law clerks 
uniformly supported Ali Nathan.
  So I would urge my colleagues to support Ali Nathan. She will be an 
outstanding addition to the bench in the Southern District of New York, 
as well as Katherine Forrest, who will also be an outstanding addition.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sanders.) The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Alison J. Nathan, of New York, to be United States District Judge 
for the Southern District of New York?
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Carolina (Mrs. 
Hagan), the Senator from Iowa (Mr. Harkin), the Senator from 
Connecticut (Mr. Lieberman), the Senator from West Virginia (Mr. 
Manchin), and the Senator from Michigan (Ms. Stabenow) are necessarily 
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn), the Senator from Indiana (Mr. Lugar), and 
the Senator from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 48, nays 44, as follows:

                      [Rollcall Vote No. 164 Ex.]


     Brown (OH)
     Johnson (SD)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)


     Brown (MA)
     Johnson (WI)

                             NOT VOTING--8

  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Susan Owens Hickey, of Arkansas, to be 
United States District Judge for the Western District of Arkansas?
  The Senator from Vermont.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from North Carolina (Mrs. Hagan), the Senator from Iowa 
(Mr. Harkin), the Senator from Connecticut (Mr. Lieberman), the Senator 
from West Virginia (Mr. Manchin), and the Senator from Michigan (Ms. 
Stabenow) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn), the Senator from Indiana (Mr. Lugar), and 
the Senator from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
wishing to vote?
  The result was announced--yeas 83, nays 8, as follows:

                      [Rollcall Vote No. 165 Ex.]


     Brown (MA)
     Brown (OH)
     Johnson (SD)
     Johnson (WI)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)



[[Page S6494]]

                             NOT VOTING--9

  The nomination was confirmed.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Katherine B. Forrest, of New York, to be 
United States District Judge for the Southern District of New York?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table and the 
President will be immediately notified of the Senate's action.