Executive Session

EXECUTIVE SESSION
NOMINATION OF MARCIA G. COOKE TO BE UNITED STATES DISTRICT JUDGE

Mr. FRIST. I ask unanimous consent that the cloture vote be vitiated and the Senate proceed to executive session for the consideration of Calendar No. 606, the nomination of Marcia Cooke to be a United States district judge for the Southern District of Florida.

I further ask that the Senate proceed to vote on the nomination and that following the vote the President be immediately notified of the Senate's action and the Senate then resume legislative session.

The PRESIDING OFFICER. Without objection, it is so ordered.

The clerk will report the nomination.

The assistant legislative clerk read the nomination of Marcia G. Cooke, to be United States District Judge for the Southern District of Florida.

Mr. HATCH. Mr. President, I want my remarks to be thought of as constructive remarks rather than not constructive.

Yet another week has gone by without this body confirming a judicial nominee. That makes more than 9 weeks since the last judicial confirmation. Only four judges have been confirmed this year, and that is hardly a record of progress.

It is not enough for the minority to point out how many nominees were confirmed under their watch 2 years ago. We must also look at what is going on now, and this is a dismal record even for a Presidential election year.

Over the last six Presidential election years, both Republicans and Democrats won the White House and both Republicans and Democrats controlled the Senate. On average, the Senate has confirmed 45 judicial nominees in the six most recent Presidential election years, and continued confirmations until October in four of the last six Presidential election years. At this same point in the last six Presidential election years, the Senate confirmed, on average, 21 judicial nominees by now. I repeat, so far this year we have confirmed just four judges.

This is not for any lack of activity on the part of the Judiciary Committee. The committee is actually one-third ahead of the average for recent Presidential election years in voting out judicial nominees to the full Senate. We have held 10 nomination hearings this year alone.

Yet 32 nominees languish on the Senate calendar in a minority-imposed limbo despite the fact that we all know that if we took the simple up-or-down votes on each and every one of these nominees that the Constitution contemplates, it is probable that virtually all 32 of these nominees would be confirmed.

Fully 22 of the 32 nominees on the calendar were reported out of the Judiciary Committee without even one negative vote in the Judiciary Committee. And that is saying something because our committee is known to be the home of some of the most vigorous debates and debaters in the Senate. As anyone who has ever attended one of our markups can verify, no one on the Judiciary Committee is shy about expressing an opinion on most any subject or reticent to reflect or register a dissenting point of view.

When a nominee goes through the Judiciary Committee without opposition, the nominee is truly a consensus candidate of high qualifications and deserves prompt consideration by the full Senate.

For me and many others, a nominee's American Bar Association rating is a factor to consider. I do not think it is the be all and end all of the confirmation process, but it is something that can be helpful in evaluating a nominee's qualifications. During the Clinton administration, I can recall that some of my friends on the other side of the aisle took the position that the ABA rating was the "gold standard" with respect to judicial confirmations.

Well, where are they now when 24 of the 32 nominees on the Executive Calendar have received the highest rating, "well qualified," by the ABA? And what is more, 14 of the 24 nominees rated "well qualified" by the ABA received this "well qualified" rating by a unanimous vote of the ABA evaluators.

The Constitution requires, and this body has traditionally provided, a vote for every judicial nominee reaching the full Senate. Every Clinton nominee that reached the Senate floor got a vote, and President Clinton nearly broke the all-time confirmation record set by President Reagan who set this record with 6 years of a Republican-controlled Senate, while President Clinton only had 2 years of a Democratic-controlled Senate to help him. President Bush's nominees should receive the same treatment and get a vote on the floor.

I remain hopeful that this body will not abandon past practice and extend the recent spate of unprecedented filibusters of appellate court nominees to district court nominees. That is why I have continued to encourage the leadership on both sides of the aisle and the White House to arrive at an acceptable compromise on the 32 judges on the Senate Calendar.

I fully support the nomination of Ms. Marcia Cooke to serve as a District Judge on the Southern District of Florida.

Before the Senate votes on the Cooke nomination, it is only appropriate that we spend a few minutes considering her qualifications. Currently serving as Miami Dade County's Assistant County Attorney, Ms. Cooke is one of those nominees who received the ABA's highest "well-qualified" rating. Her experience includes service as both a public defender and prosecutor, a plaintiff's attorney and defense counsel, a private practitioner and public servant, and both an advocate and a jurist. I might add that Ms. Cooke is a graduate of Georgetown University and is an active leader in that fine school's alumni association.

Marcia Cooke served for 8 years as a Federal magistrate in Michigan. She has been an Assistant U.S. Attorney in Michigan and Florida. She has served as Florida's Chief Inspector General. Both of Florida's Democrat Senators support her. The position to which she has been nominated has been vacant so long it is now considered a judicial emergency. If confirmed she would be the first African-American woman to serve as a Federal judge in the Southern District of Florida.

It is no wonder why the Judiciary Committee approved her without a single dissenting vote. Today, the full Senate should act to support her.

I am pleased that a more reasonable and responsible atmosphere has returned to the Senate and this cloture vote has been vitiated as part of a larger agreement on judges.

We should all recognize that a cloture vote on a highly qualified, highly respected district court nominee such as Marcia Cooke is not a positive sign. It indicates that our friends across the aisle may be prepared to extend their policy of delay and filibusters to even district court nominees.

Many believe that the true target of these unprecedented filibusters of judicial nominees is to set the stage for the next Supreme Court vacancies. What they are trying to do is to, in effect, rewrite article II, section II, clause II, of the Constitution to require a 60-vote supermajority for Supreme Court vacancies. In the process, these misguided efforts have greatly damaged the confirmation process and diminished our efforts to work together on all judicial nominees.

Despite many challenges this year on the Judiciary Committee, Senator Leahy and his Democratic colleagues have worked with us to approve many highly qualified consensus candidates.

I hope that the progress that we have made in the committee will not be derailed on the Senate floor.

Mr. President, I wish to express my appreciation to my colleagues for moving forward on this nomination, and other nominations to follow over the next few weeks.

I know these have been difficult negotiations. So I express my thanks to the President, to his chief of staff, Andrew Card, to Senator Frist and to Senator Daschle for bringing this agreement to the Senate. I also thank Senator Leahy and other members of the Judiciary Committee for their cooperation. I look forward to continuing the work of the Committee, and this agreement will help us in that effort.

Mr. President, I ask unanimous consent that an editorial published today by the Miami Herald in support of the confirmation of Marcia Cooke be printed in the RECORD.