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January 23, 2012 – Today, Nebraska's Senator Ben Nelson spoke on the floor of the U.S. Senate in support of Nebraska Supreme Court Justice John M. Gerrard's nomination to be U.S. District judge for the District of Nebraska. The Senate is scheduled to vote on the nomination later this afternoon.
"John Gerrard has built an exceptional record in private practice and on the Nebraska Supreme Court, and would do an exemplary job as a U.S. District Judge for the District of Nebraska," Senator Nelson said during his speech. "I've known him for more than 20 years and believe he has the experience, the intellect and the temperament needed on our federal bench. I cannot think of anyone better qualified than John Gerrard."
(The full text of Senator Nelson's speech is below. A link to video of the speech will follow this afternoon.)
United States district courts are the trial courts of the federal system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters.
If confirmed, Gerrard will replace Judge Richard Kopf, who was seated in 1992 and took senior status on Dec. 1, 2011.
"My Nebraska colleague, Senator Mike Johanns, has been an excellent partner in building bipartisan support for Justice Gerrard's confirmation. I appreciate Senator Johanns' efforts to work with me on behalf of the people of Nebraska," Nelson said after his floor speech.
At Gerrard's confirmation hearing before the Senate Judiciary Committee in September, both of Nebraska's U.S. senators spoke in favor of his nomination. In October, the Judiciary Committee approved Gerrard's nomination.
As governor, Nelson appointed Gerrard to the Nebraska Supreme Court on April 20, 1995, and Gerrard was sworn in July 6, 1995. Nebraskans voted to retain Gerrard on the court in 1998, 2004, and 2010. He has consistently received top ratings by the Nebraska State Bar Association in its biennial judicial evaluations.
Gerrard, 58, is a native of Schuyler. He has served as a private attorney, a city attorney, and as counsel to several public schools in Nebraska.
In 2006, Gerrard received the Distinguished Judge for Improvement of Judicial System award from the Nebraska judicial system for his work leading initiatives promoting racial and ethnic fairness under the law. He received the 2008 Legal Pioneer Award from the Nebraska State Bar Foundation for helping make the courts more user friendly to citizens from all cultures by utilizing technology to improve both understanding and participation in the courts.
On the Nebraska Supreme Court, Gerrard has authored more than 450 opinions, including the majority opinion in State v. Henderson, (Feb. 27, 2009), which overturned an arbitrator's reinstatement of a state patrolman who voluntarily affiliated with the Ku Klux Klan. Gerrard and his colleagues found reinstatement would violate Nebraska's well-established public policy that laws should be enforced without racial or religious discrimination.
Other opinions written by Gerrard helped clarify legal standards in Nebraska on topics including expert testimony, evidence in homicide cases, and duty analysis in negligence cases.
Prior to his service as a judge, Gerrard was senior partner in the law firm of Gerrard, Stratton & Ptak, P.C., in Norfolk, where he was in private practice for 14 years. He served as the Battle Creek city attorney, and as counsel to Northeast Community College, Norfolk Public Schools and other northeast Nebraska public school districts.
Gerrard received a Bachelor's degree from Nebraska Wesleyan University in 1975, a Master's of Public Administration in 1977 from the University of Arizona, and his law degree in 1981 from The University of the Pacific's McGeorge School of Law.
Full text of Senator Nelson's floor speech follows:
Mister/Madam President:
I rise today to speak on behalf of an outstanding Nebraskan, state Supreme Court Justice John Gerrard. His nomination to fill a vacancy on the United States District Court for Nebraska is now before the Senate.
John Gerrard has built an exceptional record in private practice and on the Nebraska Supreme Court, and would do an exemplary job as a U.S. District Judge for the District of Nebraska.
I've known him for more than 20 years and believe he has the experience, the intellect and the temperament needed on our federal bench. I cannot think of anyone better qualified than John Gerrard.
I was very pleased the President nominated him, I've welcomed my colleague Senator Johanns' strong support, and I believe the Senate should confirm him for the position of a U.S. District Court judge.
Gerrard, a native of Schuyler, Nebraska, has served as a private attorney, a city attorney, counsel to several public schools in Nebraska and he has an outstanding public record as a judge.
In private practice, Judge Gerrard tried dozens of cases, both civil and criminal, to verdict in state and federal courts.
He was highly respected as a trial attorney, earning an "AV" Martindale-Hubbell rating from his colleagues.
And he was elected to the American Board of Trial Advocates by his Nebraska peers.
During my tenure as governor, I appointed him in 1995 to the Nebraska Supreme Court.
Nebraska voters have shown their confidence in him by retaining him in office three times, in 1998, 2004 and 2010.
He's consistently received top ratings by the Nebraska State Bar Association in its biennial judicial evaluations:
Particularly in the areas of legal analysis, judicial temperament, and fair treatment of litigants and their lawyers.
Furthermore, the Nebraska judicial system gave him its Distinguished Judge for Improvement of Judicial System award in 2006.
This was in recognition for his work as co-chair of the system's Minority Justice Committee and the Interpreter Advisory Committee, as well as leading initiatives promoting racial and ethnic fairness under the law.
Also, in 2008, the Nebraska State Bar Foundation gave him its Legal Pioneer Award.
This was for making the courts more user friendly for citizens from all cultures by utilizing technology and other means to improve both understanding and participation in the courts.
I'd note that on the Nebraska Supreme Court, Gerrard has authored more than 450 opinions, and he is widely considered a leader on that court.
Judge Gerrard is held in the highest regard by both the bench and the bar in Nebraska, and the American Bar Association has deemed him "unanimously well qualified" to serve as a U.S. District Judge.
Justice Gerrard maintains the same even temperament off the bench, as he does on the bench.
Clearly, he's an exemplary person who has contributed much to our society. Furthermore, he and his wife, Nancy, have been married for 34 years and have raised four exceptional children.
I'd also note that during my years as governor, I appointed 81 judges, including the entire state Supreme Court. Since I've been in the Senate, I've voted on numerous judicial nominees.
In all cases, I have supported candidates for the judiciary who convinced me they would follow the law, and would not manipulate it to promote a personal or activist agenda.
This is a critical test for me and it's relevant concerning Justice Gerrard.
I am convinced he would not allow personal beliefs to interfere with his judicial duties, nor would he bring an activist agenda to the federal bench.
He has proven this, beyond a doubt, with his disciplined approach to the law over the last 16 and a-half years as a judge on the Nebraska Supreme Court.
Questions, however, have been raised to Justice Gerrard on these points and I'd like to address them now.
He's been asked whether a matter may be constitutional one day and not the next, based on a changing legal landscape.
He's answered for the record that the U.S. Supreme Court and the Circuit Court sets the binding precedent on whether a matter is constitutional, which he would follow as a district judge.
And he's stated that a federal district court judge can conclude that the law has changed only by legislation or a ruling by a higher court.
Justice Gerrard has a clear understanding of the limitations of a federal district court judge.
He has demonstrated that understanding in the deference he has given to the legislative branch and to higher court precedent during his years on the Nebraska Supreme Court.
He's also been asked specifically whether he has personal beliefs that would make him unable to carry out the death penalty.
Again, he's answered for the record that he does not.
And more to the point, Nebraska carried out the death penalty while I was Governor and Justice Gerrard was serving on the Nebraska Supreme Court.
Issuing and executing a death sentence one of is the most solemn responsibilities the judicial and executive branches are entrusted with.
In every instance, Justice Gerrard has ruled on the death penalty, he has been balanced, even-handed and –most important - faithful to the Constitution.
In fact, Judge Gerrard has confirmed for the record that the U.S. Supreme Court and the Nebraska Supreme Court have repeatedly held that the death penalty is an acceptable punishment, as long as the laws for imposing it are followed and the constitutional limitations imposed by the U.S. Supreme Court are respected.
Finally, Gerrard has stated and the record shows that he's voted to confirm a number of sentences and convictions of those sentenced to death, and he has authored more than one state court opinion upholding the constitutionality of Nebraska's death penalty law.
In my view, Judge Gerrard's answers and his clear record more than adequately address any concerns about his ability to both apply the law with impartiality and to carry out the law effectively.
To sum up, John Gerrard deserves to be confirmed by the United States Senate because he has an outstanding legal record; he possesses the proper temperament needed on the federal bench; and he will follow legal precedent to carry out the law, rather than interpret it as he sees fit.
He has been and will be an impartial judge, not an activist.
I urge his confirmation by my colleagues.
With that, I yield the floor.
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