[Senate Hearing 107-913]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-913

        GHOSTS OF NOMINATIONS PAST: SETTING THE RECORD STRAIGHT

=======================================================================

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 9, 2002

                               __________

                          Serial No. J-107-78

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                 CHARLES E. SCHUMER, New York, Chairman
PATRICK J. LEAHY, Vermont            JEFF SESSIONS, Alabama
EDWARD M. KENNEDY, Massachusetts     STROM THURMOND, South Carolina
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
RICHARD J. DURBIN, Illinois          ARLEN SPECTER, Pennsylvania
                Benjamin Lawsky, Majority Chief Counsel
                    Ed Haden, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     6
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    32
    prepared statement...........................................    65
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    66
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky, 
  prepared statement.............................................    71
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    11
    attachment...................................................    78
Grassley, Hon. Charles E., A U.S. Senator from the State of Iowa, 
  prepared statement.............................................    57

                               WITNESSES

Bea, Carlos, Judge, California Superior Court, San Francisco, 
  California.....................................................    41
Campbell, Bonnie J., Washington, DC..............................    24
Gray, C. Boyden, former White House Counsel, Washington, DC......    38
Markus, Kent, Professor, Capital University Law School, Columbus, 
  Ohio...........................................................    18
Moreno, Enrique, El Paso, Texas..................................    29
Rangel, Jorge C., Corpus Christi, Texas..........................    15

                       SUBMISSIONS FOR THE RECORD

American Association of University Women, Lillian R. BeVier, 
  Charlottesville, Virginia, letter..............................    54
Department of Justice, Office of Legislative Affairs, Daniel J. 
  Bryant, Assistant Attorney General, Washington, D.C., letter...    56
Jipping, Thomas L., Washington Times, Washington, D.C., Article..    64

 
        GHOSTS OF NOMINATIONS PAST: SETTING THE RECORD STRAIGHT

                              ----------                              


                         THURSDAY, MAY 9, 2002

                              United States Senate,
Subcommittee on Administrative Oversight and the Courts, of 
                            the Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:08 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, chairman of the subcommittee, presiding.
    Present: Senators Schumer, Durbin, Hatch, Sessions, Kyl, 
and DeWine.

         OPENING STATEMENT OF HON. CHARLES E. SCHUMER, 
           A U.S. SENATOR FROM THE STATE OF NEW YORK

    Chairman Schumer. The hearing will come to order, and just 
before I begin I am going to lay out the ground rules because 
everyone has busy, busy days here. So I will make an opening 
statement. Senator Sessions will make an opening statement. We 
will go to the panel.
    We are going to stick strictly to the 5-minute rule and we 
are going to limit this to members of our subcommittee. I think 
what we are going to try and do is limit this to the members of 
the subcommittee because I know that there are time constraints 
and Senator Sessions wanted to make sure that the second panel 
got on in a timely way. So we will do that. We are going to 
stick to 5 minutes and subcommittee members, except I would 
certainly allow Senator Hatch and Senator Leahy to be part of 
this if they wish. I think they are ex officio members of the 
subcommittee anyway.
    We are at a unique time and place in our Nation's history. 
Our Government is as closely divided as it has ever been. The 
House is narrowly governed by Republicans and the Senate is 
narrowly governed by Democrats, and the White House was won in 
the closest contested election in our history.
    In the midst of this divided Government, we are in an 
unprecedented era of conservative judicial activism on the 
courts. For decades, conservatives, often convincingly, in my 
opinion, decried the Warren Court as a ``legislator of policy, 
reasoning backward from its desired results when ruling to 
expand equal protection, the right to vote, criminal 
defendants' rights, and the right to privacy.''
    Today, similar criticisms of the courts acting as social 
policymakers, actively rejecting the will of Congress, exist, 
and with good reason. Elected officials, as opposed to 
unelected judges, should get the benefit of the doubt with 
respect to policy judgments, and courts should not reach out to 
impose their will over that of elected legislatures.
    It is easy for judges to express their personal views and 
their opinions. While that might be appealing for some to do, 
it is not what the Founding Fathers intended, but it is exactly 
what is happening on the Federal bench today.
    Many of us on our side of the aisle are acutely concerned 
with the new limits that are now developing on our power to 
address the problems of those who elect us to serve. These 
decisions affect in a fundamental way our ability to address 
major national issues like discrimination against the disabled 
and the aged, protecting the environment, and combatting gun 
violence. Those limits are being put in place by judges who are 
sticking to an ideological agenda that can only be fairly 
described as conservative judicial activism.
    So when the President tells the Nation that he intends to 
stock the courts with conservatives in the mold of Justices 
Scalia and Thomas, we have good reason to worry that the 
courts, which are already hanging in the balance, will be 
knocked right out of the mainstream.
    Ten months ago, the Judiciary Committee was reorganized 
under Democratic control. Since that day, Senator Leahy has 
moved nominees, including many conservatives, including many 
pro-life nominees, rapidly. I know that my friends on the other 
side are going to show up with all kinds of numbers and charts 
to try to prove their point, and we can get into a fight over 
whose numbers are more compelling, but I don't know what good 
that does.
    All I know is that in the 10 months we have held the 
committee, we have confirmed 52 judges, with 4 more being 
confirmed today, if we are allowed to proceed on the floor. As 
the chart behind me demonstrates, right over there, we have 
done better in our first 10 months than anyone has done in the 
first 12 months of control; as you can see, the 104th Congress, 
34; the 105th, 23; the 106th, 24; and this Congress, only 10 
months thus far, 52. The number is likely to go up above 70 by 
the time the year is out.
    But numbers only tell a small part of the story. The real 
problem, in my judgment, is not the numbers. The real problem 
is that there is no mandate to throw the third branch of 
Government out of whack with the rest of the country. 
Nonetheless, that is the plan, and it is a bad one.
    As I have said time and time again, I have three criteria 
when I vote for and play a role in selecting judges. They must 
be excellent, moderate, and diverse--excellent legally, 
moderate ideologically, and diversity must be accounted for. I 
don't like putting idealogues on the bench, whether they be of 
the far right or the far left. Each group tends to want to want 
to legislate from the bench.
    While a couple of Scalias and Thomases could be useful--I 
wouldn't mind a Supreme Court with, say, a Scalia or a Thomas 
on one side and a Brennan on the other--it is dangerous if they 
are not balanced, if we have five Scalias, five Thomases.
    But this administration isn't about balance. They are not 
about keeping the courts within the mainstream, they are not 
about nominating independent-thinking, non-ideological judges. 
You don't have to take my word for it because they are saying 
it themselves. From the President on down, the message is 
ringing clear as a bell: they are going to send up wave after 
wave of conservative nominees. It doesn't matter if we shoot a 
few down because ultimately enough will get through to stack 
the courts.
    It is a bad plan for the courts, for the country, and for 
all average, everyday Americans, for whom most of these judges 
have the last say on some of the most important matters in 
their lives.
    At a time when the Supreme Court is taking fewer than 100 
cases a year, the lower courts, particularly the courts of 
appeals, have immense power. The conservatives know that, and 
they knew it when they controlled the Senate during the Clinton 
presidency. They knew how important those lower court 
judgeships are and they did everything possible to keep the 
seats open so they could fill them with conservative 
idealogues.
    All that said, I want to publicly concede to my friends on 
the other side--both literally and politically, I want to 
concede they are correct about a few things. They are correct 
when they say that the vacancy rate on the Federal courts is 
high and should be lowered, and they have a point when they say 
we could move faster. I know that you might be shocked to hear 
me say this, but I believe that when that is said, it is right 
on both counts.
    But here are my two responses: First, send us moderate, 
non-ideological judges and we will confirm them quickly. The 
proof isn't in the pudding; it is in the record. Moderate 
nominees who are well qualified and don't appear to adhere to 
an ideological agenda--these could be conservative, these could 
be liberal, these could be pro-choice, these could be pro-
life--are moving through the Senate--moderate, non-ideological 
judges are moving through the Senate like a hot knife through 
butter.
    The problem is that red flags are being raised for so many 
nominees that we are forced to slow down, sometimes to a 
snail's pace, to fully examine their records. We would like 
nothing more than to confirm every judge immediately, but when 
you hear what we are hearing about some of these nominees, and 
when you know because he is telling you so that the President 
is using ideology as a litmus test, well, we have a duty to the 
American people, a constitutional duty, to fully review their 
records and assess fitness for the bench.
    The upshot is that while we are moving quickly, we could 
move faster if the other side would only work with us to select 
nominees who will be broadly supported. The Constitution 
doesn't just say that the Senate will consent. It says the 
Senate shall advise and consent. I promise you that a little 
more advice would lead to a lot easier consent.
    In other words, if we were consulted ahead of time, if we 
were asked what about this judge, what about that judge, things 
could move easier. But what this administration has done thus 
far is just send raft after raft, with no advice, with no 
consultation, and what they expect us to do is rubber-stamp 
every one of them, regardless of their views, regardless of how 
far out of the mainstream they are, regardless of how much they 
would stack a bench in a certain direction.
    The second point, and this goes to why we are here today, 
is that we have so many vacancies on the Federal courts 
precisely because when the other side controlled the Judiciary 
Committee, they failed to confirm qualified, ideologically 
moderate Clinton nominees.
    President Clinton, it is well known, did not nominate raft 
after raft of far-left judges, people from legal aid or the 
Civil Liberties Union. Most of his nominees tended to be 
partners in law firms or prosecutors. That is so different from 
the nominees we are seeing here, so different.
    What happened was that the other side engaged in a quite 
deliberate slow-down to keep slots open. We all know, and is 
not news to anybody, that if they won the presidential 
election, they would be able to put their ideologically 
conservative nominees on the courts, not just the four that are 
here today.
    As you can see from the chart behind me, the list of names 
is impressive both in numbers and in qualifications.
    The chart is on its way. We will put the chart up when it 
gets here.
    In the debate over how well we are performing in moving 
nominees, this point seems totally lost. These vacancies exist 
because 2 years ago the other side refused to confirm President 
Clinton's nominees, who by and large were far closer to the 
mainstream than most of President Bush's nominees.
    Don't judge by what Jeff Sessions thinks or Orrin Hatch 
thinks or Chuck Schumer thinks. Just draw a chart and make 100 
be the most liberal and 1 be the most conservative in terms of 
where the American people are, and just plot where the Clinton 
nominees were on most issues and where the Bush nominees were. 
You find many more zero-to-10's on the Bush side than you find 
90-to-100's on the Clinton side.
    So this isn't about tit-for-tat. It is not about what is 
good for the goose being good for the gander. It is about 
keeping moderation on the bench. It is about preventing the 
bench from being brought way over to the other side, which is 
in their own words what this administration wants to do.
    So if highly qualified, moderate Clinton nominees like the 
four well-respected, eminently able individuals we have here 
today had been confirmed, the vacancy rate would be lower and 
we would have some confidence that the bench wouldn't be 
dominated by conservative idealogues.
    But that is not what happened. They weren't confirmed, and 
there is no good reason they weren't confirmed, other than a 
desire to keep seats open so they could be filled by a new 
President implementing an off-the-mainstream agenda when it 
comes to the courts.
    I will pit the qualifications of our four witnesses--Jorge 
Rangel, Kent Markus, Bonnie Campbell, and Enrique Moreno--
against those of any four nominees from the Bush 
administration. They are legally excellent, they are 
ideologically moderate, and it is a diverse group. They belong 
on the bench. Why weren't they confirmed?
    Well, we might not be able to answer that question today, 
but we will be able to answer the cries of unfairness from the 
other side. They have created a problem by not confirming 
qualified nominees. They propose to solve the problem by 
nominating out-of-the-mainstream, conservative idealogues, and 
then they complain we don't move quickly enough to implement 
their unacceptable solution. This is not fair; it is not right, 
it smacks of hypocrisy. There is no other way to put it.
    Let me say something. I can speak for myself. I will not be 
bamboozled into rubber-stamping a slate of Scalias and 
Thomases, who by any measure are conservative, activist judges. 
We are not going to be bullied into letting this administration 
stack the courts for decades to come.
    The choice is this to the administration: consult with us, 
nominate reasonable, moderate men and women who belong on the 
bench and we will confirm them right away. Nominate idealogues 
willing to sacrifice the interests of many to serve the 
interests of a narrow few and you will have a fight on your 
hands. It is that simple.
    I know that each of these fine people sitting before us 
must be shocked to hear the arguments they have heard from our 
friends from the other side. I for one am anxious to hear about 
their experiences and their reactions to some of the conduct we 
have been seeing.
    Before introducing our first panel, I will turn to my 
ranking member, my friend, Senator Jeff Sessions. We have had a 
pretty good run in keeping our hearings bipartisan. Today is a 
little bit different. This is clearly a hearing that is going 
to divide us, but our side has been pummeled day after day by 
unfair allegations and I think it is fair that we have a chance 
to answer back.
    So I know that Jeff is not happy about this hearing, but I 
just want to tell him that on the many issues we work together 
on, we will be working together on. But on issues where I at 
least feel that the truth is getting way out of hand, I think 
there is a need to show our side of the story.
    Nonetheless, I will continue to do everything I can to 
treat my colleague as he has always treated me, with 
professionalism and courtesy. So even if things do get a little 
hot today, Jeff, I am going to consider you a friend when the 
day is done. If you think it will help you in November, you are 
welcome to tell your Alabama constituents that you have a pal 
in Chuck Schumer.
    What I said earlier is we were just going to have opening 
statements from the Chair and the ranking member so we can move 
this hearing along, particularly so we can get to the second 
panel early.
    Senator Sessions. Mr. Chairman, Senator Hatch is the 
ranking member of the full committee.
    Chairman Schumer. I said I would make an exception for 
Senator Hatch and Senator Leahy.
    Senator Sessions. Let me just make one little brief point. 
You have in conducting these hearings taken positions that I 
have not agreed with, but we have had some good and fair 
hearings. I think today I am troubled by the way we are 
organizing this hearing that talks about ``ghosts of 
nominations past,'' but we only have nominations from the 
Clinton administration, whereas there are some witnesses that 
have a different viewpoint from the previous years in which I 
think the record will show the attack on nominees was far more 
vigorous than anything that occurred during the time President 
Clinton was in office.
    So I would ask that the minority witnesses, Judge Carlos 
Bea and former White House Counsel Boyden Gray, be able to 
participate and sit at this panel so we could have one panel. 
Who knows how long this hearing may go? They may not even get 
to testify. I think it would create a wrong impression if that 
were to occur, Mr. Chairman.
    You have always been fair; you really have. I have enjoyed 
it, but this I would disagree procedurally with you on.
    Chairman Schumer. If the Senator would yield, we have 
discussed it and the way we are going to structure this hearing 
is to have the four witnesses from the Clinton administration 
first, and then Senator Sessions was able to structure the 
second panel in whatever way he wanted second, instead of 
mixing the two.
    Senator Sessions. Well, I never thought that was a good 
idea.
    Chairman Schumer. I know you didn't.
    Senator Sessions. And I object to that. I don't think it is 
going to be fair in the long run. Mr. Chairman, your remarks 
were eloquent, as always, and delivered with force, but to an 
unusual degree I disagree with your thesis and almost 
everything in it.
    But, Mr. Chairman, I would yield to Chairman Hatch.
    Chairman Schumer. Thank you, Senator Sessions. Senator 
Hatch, I know, will probably disagree fervently with everything 
I have said and refute it in his usual intelligent forceful 
way.
    Senator Hatch.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. I do think it would 
be more fair if you had all six people here at the same table 
because at 11:30 we are going to be voting on a series of votes 
and for all intents and purposes that is probably going to be 
the end of the hearing.
    Chairman Schumer. These are four judges, I think, that we 
are going to vote on.
    Senator Hatch. Well, sure.
    Chairman Schumer. Yes.
    Senator Hatch. And not six, by the way, that came out of 
the committee, and I might add not my judge from Utah, which is 
a direct slap. I view it as a direct slap, since I don't know 
of any Senator on this committee that I didn't bend over 
backwards to help and my two judges have been sitting there for 
almost a year, and one, Michael McConnell, for a year, 
yesterday. But thank you, Mr. Chairman. If you could do that, I 
think it would be more fair.
    Thank you for giving me the opportunity to weigh in on the 
topic of judicial nominations from the past. I don't believe in 
ghosts, but I agree with you that there seem to be a number of 
illusions floating around Capitol Hill related to this 
committee's handling of judges. I applaud your desire to set 
the record straight, and I am here to help you do exactly that.
    I wish that instead of this cute hearing, we were having a 
hearing to confirm the many nominees that are pending in limbo 
before the committee. But you are in power and you set the pace 
and agenda for such nomination hearings. So given this hearing, 
I would just like to shine a candle on five points that never 
seem to see the light of day in any discussion of past 
confirmations.
    First, there seems to be an immortal myth around here that 
it was the Republicans who created the current vacancy crisis 
by stalling President Clinton's nominees. That is purely and 
unmistakably false. The fact is that the number of judicial 
vacancies decreased by 3 during the 6 years of Republican 
leadership. There were 70 vacancies when I became chairman of 
the Judiciary Committee in January of 1995 and President 
Clinton was in office, and there were 67 at the close of the 
106th Congress, in December of 2000, the end of President 
Clinton's presidency. The Republicans did not create, or even 
add to, the current vacancy crisis.
    Each member of the committee is entitled to his or her 
opinion on what happened, but not to his or her own set of 
facts. I think we ought to avoid Enron-type accounting in this 
matter, regardless of what some of the liberal interest groups 
are asserting.
    Second, there has been a considerable slight-of-hand when 
it comes to the true overall record of President Clinton's 
nominations. The undisputed fact is that Republicans treated a 
Democrat President just as well as they did a Republican one. 
We did not use any litmus tests, regardless of our personal 
views, whether it was abortion, religion, or personal ideology. 
That didn't enter in. Otherwise, President Clinton wouldn't 
have had many judges confirmed. I am disappointed to note that 
that seems to be precisely what is happening with the Democrat-
controlled Senate now.
    Let's be honest and look at the true facts. During 
President Clinton's 8 years in office, the Senate confirmed 377 
judges, essentially the same, only 5 less, than the all-time 
confirmation champion, Ronald Reagan, who confirmed 382. So 
President Clinton had virtually the same number of judges 
confirmed as Ronald Reagan.
    Yet, Ronald Reagan had 6 years of a Senate controlled by 
his own party to help him get the 382. Now, contrast that with 
President Clinton. He had 6 years of the opposition party, the 
Republican Party, in charge of the Judiciary Committee and got 
virtually the same number.
    True, there were individual instances where a handful of 
nominees did not move, but it is nothing like the systematic 
and calculated stalling tactics being employed by this Democrat 
Senate to stop President Bush's highly qualified nominees.
    At this point, I should also add that the Clinton nominees 
we confirmed were no mainstream moderates, as some may have led 
us to believe. We confirmed nominees, and I think we should 
have confirmed these nominees because President Clinton was the 
President. That was the attitude I had, but we confirmed 
nominees; just to mention a few, Judge Marcia Berzon, Judge 
Richard Paez, Judge Margaret Morrow, Judge Willy Fletcher, all 
to the Ninth Circuit Court of Appeals. They are among the most 
liberal nominees we have ever had before the committee, but 
they were worthy and they were qualified, and President Clinton 
was the President and I put them through. They were confirmed 
with my support as chairman, and I can tell you not a single 
one of those would be characterized by any measure of the 
imagination as nominees with political ideologies ``within the 
mainstream,'' or I should say within the moderate mainstream.
    I had personal political views almost completely opposite 
to them, but they were confirmed. I saw that they were, and I 
applied no litmus test to them. I reviewed them on their legal 
capabilities and qualifications to be a judge, and that is all 
I am asking for from the Democratic majority. That is not what 
is happening, and it is clear that there is a calculated and 
wholesale slow-walking of President Bush's nominees, and 
particularly for the circuit courts.
    Third, let me say that an illusion has been created out of 
thin air that the Republicans left an undue number of nominees 
pending in committee without votes at the end of the Clinton 
administration. Again, more Arthur Andersen accounting here.
    Get ready for the truth: There were 41 such nominees--let 
me repeat, 41--which is 13 less than the 54 the Democrats who 
controlled the Senate in 1992 left at the end of the first Bush 
administration when they had control of the committee. That is 
41 under my chairmanship and 54 under the Democrat-controlled 
Senate in 1992, at the end of the first Bush administration.
    I have to say that there were about 6 of those 54 that were 
left hanging by the Democrats who were put up too late in the 
process to get through, but there were 9 of the 41 who were put 
up really at the last minute and had no real chance of getting 
through in those time constraints. So if you add those in, it 
is 48 left hanging by the Democrats at the end of the first 
President Bush's administration and there were 32 left hanging 
by us.
    I could go on and name these so-called ghosts that the 
Senate Democrats left hanging from the past Republican 
administration, but I thought better of it because it might 
make for good theatrics. But if anyone is interested in the 
names, we will be glad to provide them.
    We have a chart here. As you can see from this chart, 
President Clinton, just like President Reagan and the first 
President Bush, got all of his first 11 circuit court nominees 
confirmed, all within 1 year. All were confirmed well within 1 
year of their nominations.
    This is in stark contrast to today. Eight of President 
Bush's first 11 nominations are still pending without a 
hearing, despite being here for one whole year as of yesterday. 
All have their ABA ratings, all rated ``well qualified'' or 
``qualified,'' and all but one have their home State Senators' 
support. That one is North Carolina's nominee, whom Senator 
Edwards has yet to return a blue slip for.
    Frankly, I didn't apply blue slips to circuit judges, if I 
recall, but even if we did, I reserved the right to bring them 
up anyway. But this is the second nomination for Judge Terry 
Boyle. So he has been waiting for over 10 years, and so has 
John Roberts, who has been renominated.
    Finally, my fifth point is shown in this chart. President 
Clinton had the privilege of seeing 97 of his first 100 
judicial nominees confirmed, and the average time from 
nomination to confirmation was 93 days. Such a record was par 
for the course, until the current Senate leadership took over 
last year. President Reagan got 97 of his first 100 judicial 
nominations confirmed in an average of 36 days, but he had 6 
years of a Republican Senate to help him. President George H.W. 
Bush saw 95 of his first 100 confirmed in an average of 78 
days.
    But the ground rules have obviously been changed, as the 
extreme interest groups have reportedly instructed our 
colleagues. As we sit here today, the Senate has confirmed only 
52--not the 97 President Clinton got--only 52 of President 
Bush's nominees. The average number of days to confirm those 
few is over 150, and increasing everyday.
    The reason I mention these five points is that there are 
some people who read the title of this hearing and saw the 
witness list and noted that it is being held on the 1-year 
anniversary of President Bush's first 11 nominations who jump 
to the conclusion that the purpose of the hearing is to find 
historical justification for blocking President Bush's choices 
for the Federal judiciary.
    First of all, I would never accuse my good friend from New 
York of such a thing. Second, there simply is no historical 
justification for blocking President Bush's first 11 or first 
100 judicial nominees, nor is there any truth to the myth that 
the vacancies we have today were caused by the Republican 
Senate. In other words, anything conjured up from the past and 
dressed up as a reason to thwart the requests of President Bush 
should be dismissed.
    Now, if I can switch gears just for a little bit and say 
something that I consider to be personal, even though it has 
had and still could have a lot of bearing on this process, back 
before I became chairman of this committee in 1995 I was 
personally affected by several events that occurred under the 
auspices of ``advise and consent.'' Those events included the 
mistreatment of nominees, including Sessions, Bork, Thomas, 
Ryskamp, Rehnquist, and others.
    I saw how politics can affect the human spirit, both in 
success and defeat, and I saw how baseless allegations can take 
on a life of their own and how they can take away the life from 
their victims. By the time I became chairman, I had determined 
to change the process that had gotten so vicious.
    I worked to restore dignity back to the committee and the 
Senate. I championed the cause of President Clinton's Supreme 
Court nominee, Ruth Bader Ginsburg, even though she was 
criticized by many as a liberal activist and was a former 
general counsel of the ACLU, which I would certainly not hold 
against anybody. I used my influence to quiet her detractors. I 
helped secure her vote, which was 96 to 3.
    Under my chairmanship, for those below the Supreme Court, I 
ended the practice of inviting witnesses to come into hearings 
to disparage nominees. We just didn't allow it and I told them 
to get lost, and I incurred a lot of enmity from the 
conservative groups in Washington and elsewhere for doing that.
    I dealt with FBI background issues in private, because 
sometimes they are nothing; sometimes they are serious. But 
whenever they are mentioned in public, people immediately jump 
to the conclusion that they are serious and there must be 
something wrong with that nominee. So I dealt with FBI 
background issues in private conferences with Senators, never 
mentioning them in public hearings. That is a practice I am 
concerned is not being followed by this committee.
    I told interest groups, even the ones whose work I liked in 
other areas, that they were not welcome to smear Clinton 
nominees. I refused to alter the 200-year tradition of 
deference to Presidents by shifting the burden onto nominees, 
and I informed the White House of problems that could, if made 
public, lead a nominee to a humiliating vote of defeat so the 
nominee could withdraw rather than face that fate.
    These are the reasons that we were able to confirm 377 
Clinton nominees, including some pretty contentious ones such 
as Berzon and Paez for the Ninth Circuit. I worked to get these 
two confirmed, I stuck my neck out for them, and I still 
believe to this day that I did the right thing even though I am 
increasingly pessimistic that someone on the other side of the 
aisle will step up to the plate and reciprocate for any Bush 
nominees who might be in the same circumstances.
    I urge and call upon the Democrat majority to show some 
leadership and put partisanship and politics of personal 
destruction behind. Give fair hearings and confirmations of 
qualified nominees and keep the judiciary independent, as our 
forefathers intended, and keep the left-wing interest groups 
out of the nomination process.
    Chairman Schumer, I have a great deal of admiration for 
you. I count you as one of my close friends in the Senate, and 
that is not the usual B.S. that shows up in the Senate from 
time to time. I mean it, and people who know me know I mean it.
    I understand how some people have felt. Were there some I 
wish I could have gotten through? You bet your life there were, 
but that is always the case, whether Democrats are in control 
or Republicans are in control.
    But I wanted to make these five points because they are 
legitimate, they are honest, they are truthful, and frankly I 
think they can't be ignored. I get a little tired of having my 
chairmanship, should I say, discredited by false facts and by 
false conclusions. I did the best I could under the 
circumstances, and I think in comparison to what the Democrats 
have done in almost case it was better, and in most cases much 
better.
    So, again, I feel badly for anybody who didn't make it 
through. I have always felt that way, but on the other hand 
that happened whether the Democrats were in control of the 
committee or Republicans. It is just the process. In any event, 
I did everything in my power to try and do what is right, and I 
really appreciate you giving me this honor of being able to go 
forth here and make these comments.
    Thank you, sir.
    Chairman Schumer. Well, thank you, Chairman Hatch.
    Senator Hatch. Mr. Chairman, I have to go to the floor.
    Chairman Schumer. I understand. We very much appreciate 
your statement. We are going to disagree strongly on this 
issue, but nothing is personal and I too consider you a close 
friend.
    We are now going to get to the four witnesses on the first 
panel. I am going to introduce each one, ask them to speak, and 
then introduce----
    Senator Sessions. Mr. Chairman, may I have a few opening 
remarks?
    Chairman Schumer. Please, please. I thought that you had 
ceded. Please.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Mr. Chairman, this is indeed an 
interesting hearing, ``Ghosts of Nominations Past,'' but the 
``Ghosts of Nominations Past'' did not arise in 1995 when 
Senator Hatch became chairman of this committee. It arose 
really years before in the mid-1980s. I remember it well.
    Certainly, we will never forget the hotly-contested 
hearings in which Robert Bork, William Rehnquist, and Clarence 
Thomas were bitterly attacked. Some might even remember the 
Session, Manion, and Fitzwater hearings, those earlier and 
fainter ghosts who were ``Borked'' before they knew what to 
call it.
    Poor Judge Fitzwater, a wonderful Baptist, an honors 
graduate of Baylor, young, with a fine family, rated by the 
Houston bar as the best judge in Houston, suffered mercilessly 
because in an election in which he was on the ballot as a 
candidate, he had passed out a flyer that warned if one 
violated the voting laws of Texas, they could be prosecuted. He 
was accused of chilled voting rights.
    One judge was required to give up membership in a historic, 
but all-male British club which he attended only once or twice 
a year. Once having given it up, the Torquemada team here, 
their zealotry assuaged, allowed him to move on to 
confirmation.
    First, I would like to compliment Senator Hatch for the way 
he conducted this committee during his chairmanship. He 
elevated debate, treated nominees with respect, and kept 
vacancies low enough to ensure that judicial business would not 
be delayed. In fact, I cannot recall a single hearing at which 
special interest group representatives were called to testify 
against one of President Clinton's judicial nominees.
    Further, Senator Hatch continued the tradition that a 
nominee that had the approval of the President and his two home 
State Senators, a clean background check by the FBI, and in 
most cases an ABA rating of ``qualified'' or better, was 
presumed to move forward to confirmation. Of course, the Senate 
must never be considered a potted plant on these matters, but I 
do believe a strong presumption for confirmation should exist.
    At the end of the first Bush administration, there were 97 
vacancies; that was former President Bush. When the Democrats 
were in charge of the Senate, there were 97 vacancies. There 
were 54 nominees unconfirmed, awaiting action. Under Chairman 
Hatch and a Republican Senate, at the end of the Clinton 
administration there were only 67 vacancies and 41 nominations 
that expired without action. Thus, in my view, the ghosts 
arising from the remains of prior nominees are overwhelmingly 
the product of my Democratic colleagues' administration of this 
committee, not from Senator Hatch's leadership.
    The problem is that the ghosts of nomination present is 
beginning to bring back bad memories. The New York Times 
reported that on April 30, 2001, at a private retreat, 
Professor Laurence Tribe, along with Professor Cass Sunstein 
and Marcia Greenberger, lectured the Democratic Senators on how 
to block judicial nominees by ``changing the ground rules.'' 
That is what we are talking about, changing the ground rules. 
So we have a contradiction here. We have a complaint that the 
Clinton nominees were treated unfairly, so therefore the remedy 
is to treat the Bush nominees even more harshly.
    Then on June 26, Professors Tribe, along with Professor 
Sunstein and Ms. Greenberger, were invited to testify before 
this subcommittee at a hearing entitled ``Should Ideology 
Matter?'' They argued that political ideology--at its base, 
that means the politics of the nominee, I suggest--was a 
legitimate issue to be considered, thus setting a higher hurdle 
for Republican nominees than had been used to confirm 
Democratic nominees.
    Then on September 4, 2001, this subcommittee held a second 
hearing entitled ``The Senate's Role in the Confirmation 
Process: Whose Burden?'' At the hearing, we were told that the 
burden that Senator Hatch had placed on the Senate to reject a 
nominee should be shifted to the nominee; that is, the Bush 
nominees now had the burden to prove that he or she had 
characteristics worthy of confirmation that exceeded their 
paper record and their record of achievement.
    As support for the use of ideology to aggressively oppose 
judicial nominees, we have heard the assertion from Professor 
Tribe, Marcia Greenberger, and members of this committee that 
during the first 100 years of our country's history, 1 out of 4 
nominees to the Supreme Court were rejected by the Senate based 
largely on the nominee's ideology.
    Chairman Schumer. While you are taking a drink, I would 
like to compliment you on your charts. They are very creative.
    Senator Sessions. I wonder whose ghost that is on that 
chart. It could be mine.
    Chairman Schumer. I am glad you are using the title. Ghosts 
come back.
    Senator Sessions. We have examined the history on this 
matter and discovered a different story. A number of the early 
Supreme Court nominees were not rejected at all, but declined 
to serve on what was perceived to be the low-paying, non-
prestigious job they were asked to take.
    Those declining to serve were Robert Harrison, Levi 
Lincoln, William Smith, Roscoe Conkling, William Cushing, and 
John Quincy Adams. Further, two nominees that some count as 
rejected were only temporarily delayed and were eventually 
confirmed. Those nominees were Roger Taney and Stanley 
Matthews.
    Moreover, 10 nominees were not acted upon or were rejected 
primarily because of the lame duck or near-lame duck status of 
the nominating President, not primarily because of their 
ideology. Those include Jeremiah Black, John Crittenden, Reuben 
Walworth, Edward King, John Specter, John Read, Edward 
Bradford, George Badger, William Micou, and Henry Stanbery. In 
the instance of Henry Stanbery, who was nominated after Andrew 
Johnson's failed impeachment, the Senate not only declined to 
act upon his nomination, but passed legislation to remove the 
tenth seat for which Stanbery was nominated. Regardless of 
whatever personal ideology these men may have had, the Senate, 
it appears, would not have confirmed them.
    William Hornblower and Wheeler Peckham were rejected 
because New York Senator David Hill refused to confirm anyone 
that President Cleveland nominated unless it was his personal 
choice from New York--a trend I hope you don't take too 
seriously, Senator Schumer.
    Chairman Schumer. Hill was in the other line of Senate 
seats, not in my line of Senate seats.
    Senator Sessions. I know you strongly believe and have 
insisted on an intense consultation on judges from New York, 
and I believe you are receiving a good bit of consultation on 
those nominations.
    It appears that only five nominees were not confirmed 
primarily because of their personal ideology. These nominees 
were John Rutledge, who opposed Jay's Treaty; Alexander 
Wolcott, who vigorously sought enforcement of the Embargo Act; 
Ebenezer Hoar, who opposed Andrew Johnson's impeachment; George 
Woodward, who was an extreme American nativist; and Caleb 
Cushing, whose constant political party-switching incensed his 
fellow Senators.
    Thus, only about 5 percent of the Supreme Court nominees 
can fairly be said to have been rejected for any kind of 
personal ideology. Clearly, that was the historical exception 
and not the rule. I can say with confidence, therefore, that 
the assertion that 1 out of 4 nominees in the first 100 years 
of this country were rejected on the basis of ideology is false 
and creates a false impression about the process.
    The fact that such a view has never been the rule is 
confirmed by the testimony we had earlier of Lloyd Cutler, 
White House Counsel to Democratic Presidents Carter and 
Clinton, and the independent Miller Commission that absolutely 
rejected the contention that political ideology should be used 
by the Senate to reject nominees.
    If history is to serve as a guide, however, we would do 
well to examine it with respect to the burden, or lack of 
thereof, on nominees to prove their worthiness of confirmation 
beyond their paper record.
    During the first 130 years of our Nation's history, the 
Senate did not ask nominees any questions at hearings, probing 
or otherwise. The first nominee to even appear before the 
Senate was Harlan Fiske Stone, in 1925, and nominees did not 
appear regularly before the Judiciary Committee until John 
Marshall Harlan II, in 1955.
    Occasionally, the committee asked nominees questions in 
writing, but there was no probing examination or cross-
examination in the committee. So it would have been difficult 
to believe the early Senate thought that a nominee was required 
to bear some illusory burden of earning the confirmation, to 
submit to vigorous cross-examination, and to personally 
convince Senators on the committee that he truly met the 
criteria in a way not reflected in the record of the nominee. 
So if we use history as a guide, and it is a good one, I think 
we ought to understand it first.
    In conclusion, I am concerned with the injection of 
political ideology--the focus on the political popularity of 
the results of a case--instead of judicial philosophy, the 
focus on the integrity of the process. I agree with President 
Clinton's White House Counsel, Lloyd Cutler, that the use of 
ideology could politicize our independent judiciary.
    Mr. Chairman, we did have a lot of ACLU lawyers that 
President Clinton nominated to the bench, for example. At one 
period, I think, before you came to the Senate we had three or 
four in a month, so I had someone check the positions of the 
ACLU. Of course, they favor legalization of drugs. They believe 
the Constitution bars any control of pornography, even child 
pornography.
    So I took to asking the witnesses, do you agree with this, 
if they were a member of the ACLU. They would all say, oh, no, 
they didn't agree with that, and I would usually say, then why 
did you join this group? That is their position. Why did you 
join it? But I voted to confirm most of those judges, and I 
think most of us on our side moved forward with a lot of 
nominees that had very liberal backgrounds.
    I believe most of those, it struck me, were committed to 
enforcing the law as written, even if they may disagree with me 
in what it should be, and I think many of them will make great 
judges. I think just because some of these nominees that 
President Bush sends forth have views that are consistent with 
his political views does not mean they can't be able and 
competent judges, and it would be a shame to have them held up, 
as is occurring today.
    Thank you.
    Chairman Schumer. Thank you, Senator Sessions.
    We are now going to proceed to the witnesses. I will 
introduce everyone and then let them testify.
    Our first witness is Jorge Rangel. He is currently an 
attorney in private practice in Corpus Christi, Texas. He was 
nominated to the U.S. Court of Appeals for the Fifth Circuit by 
President Clinton in 1997, but Mr. Rangel was never granted a 
hearing by the Republican-controlled Judiciary Committee, never 
granted a hearing.
    A graduate of the University of Houston and the Harvard Law 
School, Jorge Rangel went on to a distinguished career of 20 
years in private practice in a Corpus Christi firm. In 1983, he 
was appointed to a judgeship on the Texas State District Court, 
where he served before returning to private practice.
    Judge Rangel has also been active in legal and community 
associations over the years, including time as an officer of 
the Board of Governors of the Bar Association of the Fifth 
Circuit and of the American Board of Trial Advocates. He served 
on the Advisory Council of the Texas Center for Legal Ethics 
and Professionalism, on the Board of Directors of the Texas-
Mexico Bar Association, as Chair of the Texas Board of Legal 
Specialization, as Chair of the Antitrust and Business 
Litigation Section of the State Bar of Texas, on the Advisory 
Board of the Food Bank of Corpus Christi, on the Executive 
Board of the Boys Scouts of America, Southern Region, and 
President of the Board of the United Way of the Coastal Bend, 
among many, many others.
    A look through Judge Rangel's life and career shows both 
have been distinguished. He has dedicated himself to the 
betterment of his profession and his community, all the while 
working hard to represent clients in a variety of legal 
matters. He has written no so-called controversial writings. He 
has been affiliated with no so-called liberal groups, and gave 
no one any reason whatsoever to question his credentials and 
fitness for the bench. He was rated ``well qualified'' by the 
ABA.
    Yet, for reasons that many have characterized as totally 
political, Jorge Rangel's nomination was help up for more than 
a year, from July 1997 until the end of the 1998 congressional 
session, a total of more than 15 months, with no explanation or 
hint of opposition to him.
    Judge Rangel, it is an honor to have you here and you may 
proceed. We will try to limit each witness to the 5-minute 
rule.

      STATEMENT OF JORGE C. RANGEL, CORPUS CHRISTI, TEXAS

    Mr. Rangel. Thank you, Mr. Chairman and members of the 
subcommittee.
    On July 24, 1997, President Clinton nominated me to the 
U.S. Court of Appeals for the Fifth Circuit. Almost 5 years 
later, I welcome this opportunity to appear before a committee 
of the U.S. Senate to discuss that nomination.
    I must confess that this hearing is not exactly what I 
envisioned when my nomination was announced. At the time, I 
fully expected that in due course the Senate Judiciary 
Committee, in discharging its advise and consent 
responsibilities under the Constitution, would conduct a 
hearing to review my background and qualifications. I was sadly 
mistaken, because the hearing never materialized.
    My nomination died the following year, when the Senate 
adjourned on October 21, 1998. The next day, I wrote the 
President requesting that my nomination not be resubmitted in 
the next session of Congress because personally and 
professionally I could not continue to place my life on hold 
while waiting to see if the political forces at play would 
favor me with a hearing. The delay had taken its toll and it 
was time to move on.
    The confirmation process was grueling and time-consuming, 
but I did everything that was asked of me. I invested almost 2 
years of my life in the process, starting early in 1997 when my 
name first surfaced as a possible nominee to fill a vacancy 
that exists to this day.
    I underwent extensive background checks by the FBI, the 
Justice Department, and the White House. After the ABA 
committee completed its investigation into my professional 
qualifications, I received a ``well qualified'' rating. I 
filled out countless forms containing every conceivable 
question concerning every aspect of my adult life, including 
detailed financial information.
    After my nomination was forwarded to the Senate, a cross-
section of the Texas legal community, including Democrats and 
Republicans, sent dozens of letters to Senator Gramm and 
Hutchison urging my confirmation. In September 1997, I met with 
the Senators' statewide advisory committee of lawyers which 
advised them on judicial nominations. The committee asked 
numerous questions about my legal experience and about my views 
of the role of the judiciary in our society.
    In May 1998, at my request, I met privately and separately 
with Senator Gramm and Senator Hutchison to discuss the status 
of my nomination and to answer their individual questions. 
During those meetings, I made a personal plea for a hearing. 
They stated that they were still considering my nomination and 
would let me know if I needed to submit any additional 
information.
    As the weeks of delay turned into months, nothing seemed to 
bring me closer to a hearing. Each letter of support triggered 
a form response acknowledging receipt and stating that my 
background and credentials were under review.
    While my nomination was pending, I was inducted as a Fellow 
of the American College of Trial Lawyers, one of the legal 
profession's most prestigious organizations whose membership is 
limited to lawyers who have distinguished themselves in the 
courtroom. The president of the group, the late Ed Brodsky from 
New York, asked me to give the response speech on behalf of all 
of the inductees at the induction ceremonies. I duly reported 
the news to those reviewing my nomination, but it was of no 
apparent consequence.
    When the 1-year anniversary of my nomination passed without 
a hearing, it became clear that there was nothing that I could 
do to open the doors to the hearing room of the Senate 
Judiciary Committee. The doors remained closed until the end. I 
was never given a reason why my nomination did not merit a 
hearing.
    Even with the passage of time, I find it difficult to 
reconcile my experience in the confirmation process with the 
basic notions of fair play, justice, and due process that have 
guided me in my career. Moving from the past to the present, I 
am somewhat troubled at the ease with which some are now 
attacking the pace of judicial confirmations, while choosing to 
ignore or forget what happened to so many of President 
Clinton's judicial nominees. We have become mere historical 
statistics in a never-ending numbers game.
    With all due respect, Mr. Chairman, I would like to raise 
my voice to underscore the point that those statistics 
represent real human beings with real families and real careers 
that suffered at the hands of those who, for political reasons, 
set out to prevent many of us from being confirmed. Hopefully, 
our presence here today will, in fact, set the record straight 
so that other judicial nominees, regardless of their party 
affiliation, will not suffer the same fate. They and the 
American people deserve better.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Rangel follows:]

        Statement of Hon. Jorge C. Rangel, Corpus Christi, Texas

    Mr. Chairman, Members of the Subcommittee: On July 24, 1997, 
President Clinton nominated me to the United States Court of Appeals 
for the Fifth Circuit. Almost 5 years later, I welcome this opportunity 
to appear before a committee of the U.S. Senate to discuss that 
nomination. I must confess that this hearing is not exactly what I 
envisioned when my nomination was announced. At the time, I fully 
expected that, in due course, the Senate Judiciary Committee, in 
discharging its advice and consent responsibilities under the 
Constitution, would conduct a hearing to review my background and 
qualifications.
    I was sadly mistaken, because the hearing never materialized. My 
nomination died the following year when the Senate adjourned on October 
21, 1998. The next day I wrote the President, requesting that my 
nomination not be resubmitted in the next session of Congress, because, 
personally and professionally, I could not continue to place my life on 
hold while waiting to see if the political forces at play would favor 
me with a hearing. The delay had taken its toll and it was time to move 
on.
    The confirmation process was grueling and time-consuming, but I did 
everything that was asked of me. I invested almost 2 years of my life 
in the process, starting in early 1997 when my name first surfaced as a 
possible nominee to fill a vacancy that exists to this day. I underwent 
extensive background checks by the FBI, the Justice Department and the 
White House. After the ABA Committee completed its investigation into 
my professional qualifications, I received a well qualified rating. I 
filled out countless forms containing every conceivable question 
concerning every aspect of my adult life, including detailed financial 
information.
    After my nomination was forwarded to the Senate, a cross section of 
the Texas legal community, including Democrats and Republicans, sent 
dozens of letters to Senators Gramm and Hutchison urging my 
confirmation. In September 1997, I met with the Senators' state-wide 
advisory committee of lawyers which advised them on judicial 
nominations. The committee asked numerous questions about my legal 
experience and about my views on the role of the judiciary in our 
society. In May 1998, at my request, I met privately and separately 
with Senator Gramm and Senator Hutchison to discuss the status of my 
nomination and to answer their individual questions. During those 
meetings, I made a personal plea for a hearing. They stated that they 
were still considering my nomination and would let me know if l needed 
to submit any additional information.
    As the weeks of delay turned into months, nothing seemed to bring 
me closer to a hearing. Each letter of support triggered a form 
response acknowledging receipt and stating that my background and 
credentials were under review. While my nomination was pending, I was 
inducted as a Fellow of the American College of Trial Lawyers, one of 
the legal profession's most prestigious organizations, whose membership 
is limited to lawyers who have distinguished themselves in the 
courtroom. The president of the group, the late Ed Brodsky from New 
York, asked me to give the response speech on behalf of all the 
inductees at the induction ceremonies. I duly reported the news to 
those reviewing my nomination, but it was of no apparent consequence.
    When the 1-year anniversary of my nomination passed without a 
hearing, it became clear that there was nothing that I could do to open 
the doors to the hearing room of the Senate Judiciary Committee. The 
doors remained closed until the end. I was never given areas on why my 
nomination did not merit a hearing.
    Even with the passage of time, I find it difficult to reconcile my 
experience in the confirmation process with the basic notions of fair 
play, justice and due process that have guided me in my career. Moving 
from the past to the present, I am somewhat troubled at the ease with 
which some are now attacking the pace of judicial confirmations while 
choosing to ignore or forget what happened to so many of President 
Clinton's judicial nominees. We have become mere historical statistics 
in a never ending numbers games. With all due respect, I would like to 
raise my voice to underscore the point that those statistics represent 
real human beings with real families and real careers that suffered at 
the hands of those who, for political reasons, set out to prevent many 
of us from being confirmed. Hopefully, our presence here today will in 
fact set the record straight so that other judicial nominees, 
regardless of their party affiliation, will not suffer the same fate. 
They and the American people deserve better.
    Thank you Mr. Chairman.

    Chairman Schumer. Thank you, Mr. Rangel.
    Our next witness is Kent Markus. He is the Director of the 
Dave Thomas Center for Adoption Law at Capital University Law 
School in Columbus, Ohio. A graduate of Northwestern University 
and the Harvard Law School, Professor Markus was nominated by 
President Clinton to serve on the U.S. Court of Appeals for the 
Sixth Circuit in February of 2000, and quickly received the 
approval of both of his home State Senators, two Republicans, 
Mike DeWine and George Voinovich.
    Despite this bipartisan support, a ``qualified'' rating 
from the ABA, and an excellent record of achievement and 
service, Professor Markus was never afforded the courtesy of a 
hearing before the Judiciary Committee and his nomination was 
returned to the President at the close of the 106th Congress.
    Professor Markus previously served as Deputy Chief of Staff 
at the U.S. Justice Department and as the highest-ranking 
adviser to Attorney General Janet Reno. During his 
approximately 5 years at Justice, Professor Markus was 
responsible for national implementation of the 1994 Crime Act 
and was the first Director of the Community-Oriented Policing 
Services Office, the COPS Office, responsible for putting 
100,000 new community police officers on the streets. He 
managed the Department's dealings with Congress and was the 
point person for the Department on crime policy, in general, 
with special attention to juvenile crime and gun violence.
    Prior to his service at the Justice Department, Professor 
Markus was the Chief of Staff at the Democratic National 
Committee, and before that Chief of Staff for a former Ohio 
Attorney General. Early in his career, Professor Markus, a 
Cleveland native, worked at law firms in Australia, Alaska, and 
Washington, D.C., held a clerkship with a Federal judge, 
practiced law, and taught at Cleveland State Law School. On 
Capitol Hill, Markus worked for former U.S. Speakers Carl 
Albert and Tip O'Neill, and House Rules Committee Chairman 
Richard Bolling.
    Mr. Markus, you may proceed.

  STATEMENT OF KENT MARKUS, PROFESSOR, CAPITAL UNIVERSITY LAW 
                     SCHOOL, COLUMBUS, OHIO

    Mr. Markus. Thank you, Mr. Chairman, Senator Sessions, 
members of the subcommittee. In the past when I have testified 
at congressional hearings, I have always thanked the Chair for 
inviting me, and while I am grateful for the opportunity to 
talk with you about the confirmation process for Federal 
judges, as Mr. Rangel said, this isn't quite the Senate 
Judiciary hearing that I had once longed for.
    I am here today because I concur with President Bush that 
we need to find a way to consider Federal judicial nominations 
without undue delay. But I am also here today because I believe 
that the history regarding the current vacancy backlog is being 
obscured by some, and I believe that this historical 
revisionism is exacerbating the negative political dynamics 
surrounding judicial confirmations.
    I don't think we will ever stop the retaliatory cycle of 
judicial nomination delay unless both political parties agree 
to compromise, a topic I will address at the end of my 
testimony.
    Chairman Schumer. Mr. Markus, your entire statement--it is 
rather lengthy--will be read in the record, so if you can 
highlight the key points.
    Mr. Markus. I am going to try and be selective, Mr. 
Chairman.
    Chairman Schumer. Great.
    Mr. Markus. In the summer of 1999, I was contacted by 
friends at the Justice Department who informed me that Judge 
David Nelson of the Sixth Circuit had notified the White House 
that he would take senior status in October of that year. They 
asked me if I wanted to be considered for the seat and I told 
them that I most assuredly did. I immediately confirmed my 
interest with a letter to the White House Counsel.
    Throughout that fall, the White House reviewed possible 
nominees for Judge Nelson's seat, and as a result of a strong 
and cordial working relationship with Senator DeWine, I was 
able to represent to the White House that I was confident 
Senator DeWine would advise them that he had no objection to my 
nomination.
    Shortly thereafter, the White House nominations counsel 
informed me that he had indeed conferred with Senator DeWine 
and reported that he had been pleased by the Senator's 
decidedly favorable response. In December, I was informed that 
the President had tentatively selected me as the nominee for 
the vacancy and began the documentation and background process 
described by Mr. Rangel.
    Since I had left the Justice Department with a high-level 
security clearance a little more than a year before, the FBI 
was able to complete its update check relatively easily. The 
ABA also moved swiftly, and on February 9 of 2000 I was the 
President's first judicial nominee in that calendar year, and 
then the waiting began.
    On the day of my nomination, in an interview with the 
Cleveland Plain Dealer Senator DeWine declared me to be well 
qualified for the position. Not long after, both Senators 
DeWine and Voinovich returned their blue slips, indicating they 
had no objection to my nomination receiving a hearing. I 
believe I was the only circuit nominee in the country awaiting 
a hearing with blue slips returned by two Republican home State 
Senators.
    At the time, the Sixth Circuit was operating at three-
quarters strength, with 4 of its 16 seats vacant. It was 
apparent that the Sixth Circuit nominees from Michigan were 
being held up, and it seemed that if there were any chance for 
relief for the circuit, it would come from my confirmation.
    While my nomination was pending, my confirmation was 
supported by, among others, 14 past presidents of the Ohio 
State Bar Association, representing every political stripe; 
more than 80 Ohio law school deans and professors, again coming 
from every point on the political spectrum; prominent 
Republicans in Ohio, including the Chief Justice of the Ohio 
Supreme Court, another Justice of the Ohio Supreme Court, 
Justice Evelyn Stratton, Congresswoman Deborah Pryce, and 
Congressman David Hobson. I also had support from the National 
District Attorneys Association, the Fraternal Order of Police, 
and had endorsements from virtually every major newspaper in 
the State of Ohio, including two editorials from the generally 
conservative Columbus Dispatch.
    As a result of the vacancies on the court, the Sixth 
Circuit had become the slowest appellate court in the Nation. 
It was also evident at the time that more Sixth Circuit 
vacancies were on the way. Of the 12 members of the court at 
the time, 5 were eligible for senior status in the years 2000 
and 2001.
    At the time my nomination was pending, despite the lower 
vacancy rates than the Sixth Circuit, the Senate confirmed 
circuit nominees to the Third, Ninth, and Federal Circuits, and 
afforded hearings to nominees from the Eighth and D.C. 
Circuits. No Sixth Circuit nominees had been afforded a hearing 
in the prior 2 years. Of the nominees awaiting a Judiciary 
Committee hearing, there was no circuit with more nominees 
pending than the Sixth Circuit.
    Yet, with the high vacancies already impacting the Sixth 
Circuit's performance and more vacancies on the way, why did my 
nomination expire without a hearing? To their credit, Senator 
DeWine and his staff, and Senator Hatch's staff and others 
close to him were very straight with me. Over and over again, 
they told me two things. No. 1, there will be no more 
confirmations to the Sixth Circuit during the Clinton 
administration. No. 2, this has nothing to do with you; don't 
take it personally. It doesn't matter who the nominee is, what 
credentials they may have or what support they may have. See 
item No. 1.
    While I never had the opportunity to discuss the matter 
personally with Senator Hatch, with whom I had an excellent 
relationship during my tenure at the Justice Department, it was 
my strong sense that he and Senator DeWine were not at all 
comfortable with this state of affairs. On one occasion, 
Senator DeWine told me, this is bigger than you and it is 
bigger than me.
    Senator Kohl, who had kindly agreed to champion my 
nomination within the Judiciary Committee, encountered a 
similar brick wall. The fact was a decision had been made to 
hold the vacancies and see who won the presidential election. 
With a Bush win, all those seats could go to Bush rather than 
Clinton nominees.
    I see my time has expired, Mr. Chairman, and I know my full 
statement is in the record. I am happy to discuss with the 
committee any thoughts on how we might remove ourselves from 
this downward cycle in the future.
    [The prepared statement of Mr. Markus follows:]

   Statement of Kent Markus, Professor, Capital University Law School

    Good morning Mr. Chairman, Sen. Sessions and members of the 
Subcommittee. My name is Kent Markus. I'm a professor at Capital 
University Law School in Columbus, Ohio where I also serve as the 
Director of the Dave Thomas Center for Adoption Law, a nationally 
unique institution aimed at improving child welfare and adoption 
systems.
    In the past when I've testified at Congressional Hearings, I've 
always thanked the Chair for inviting me. And while I am grateful for 
the opportunity to talk with you about the confirmation process for 
Federal judges, this isn't quite the Senate Judiciary Committee hearing 
that I had once longed for.
    I'm here today because I concur with President Bush that we need to 
find a way to consider Federal judicial nominations without undue 
delay. But I'm also here today because I believe that the history 
regarding the current vacancy backlog is being obscured by some--and I 
believe that this historical revisionism is exacerbating the negative 
political dynamic surrounding judicial confirmations. I don't think 
that we'll ever stop the retaliatory, tit-for-tat cycle of judicial 
confirmation delay unless both political parties agree to compromises--
a topic I'll address at the end of my testimony.

              My Experience as a Federal Judicial Nominee

    In the summer of 1999, I was contacted by friends at the Department 
of Justice. They informed me that Judge David Nelson of the 6th Circuit 
had notified the White House that he would take senior status on 
October 1st of that year. They asked if I wanted to be considered for 
the seat. I told them that I most assuredly did.
    To confirm my interest, I immediately wrote to the then White House 
Counsel Chuck Ruff. My letter, in part, stated as follows:

          I write to express my deep interest in appointment to the 
        vacancy on the 6th Circuit resulting from Judge David Nelson's 
        decision to leave active status. I believe that the range and 
        breadth of my professional experience have prepared me for such 
        a position and I am confident that I would serve in a manner 
        that would bring credit to the President and others involved in 
        selecting me.
          At different points in my professional life, I have worked in 
        the legislative, executive and judicial branches of the Federal 
        Government. I am presently a law professor and have also been a 
        private practice litigator and the manager of two private, non-
        profit organizations. I have been consistently involved in 
        making, implementing and interpreting Federal (as well as 
        state) law. If appointed, I believe that the unusual breadth of 
        my career would help me to decide cases through a blending of 
        rigorous legal analysis with common sense practicality.
          In addition to intellect, I believe that a key aspect of 
        performing well as a judge is attitude. I believe in the 
        importance of presenting timely, clear and cogent rulings. I 
        believe that judges should interpret the law and that 
        legislators should make the law. I believe that government 
        service--and particularly service in the judiciary--is a public 
        trust that requires a commitment to show neither bias nor 
        prejudice to any party. As an appeals court judge, I would 
        expect to live by these principles and bring energy, 
        commitment, common sense, good humor and humility to the 
        courthouse everyday.

    Throughout that fall, the White House reviewed possible nominees 
for Judge Nelson's seat. As the result of a strong and cordial working 
relationship with Senator DeWine, I was able to represent to the White 
House that I was confident Senator DeWine would advise them that he 
would have no objection to my nomination. Shortly thereafter, the White 
House nominations counsel informed me that he had conferred with 
Senator DeWine about my possible nomination. He reported to me that he 
had been pleased by the Senator's decidedly favorable response.
    In December, I was informed that the President had tentatively 
selected me as the nominee for the vacancy. I was instructed to provide 
the voluminous documentation required of nominees by the White House, 
the Justice Department, the FBI, the Senate, and the Administrative 
Office of the Courts so that ABA and FBI background checks could 
commence.
    Since I had left the Justice Department with a high level security 
clearance just a little more than a year before, the FBI was able to 
complete its update check relatively easily. The ABA also moved 
swiftly. On February 9, 2000, I was the President's first judicial 
nominee in that calendar year.
    And then the waiting began.
    On the day of my nomination, in an interview with the Cleveland 
Plain Dealer, Senator DeWine declared me to be ``well-qualified'' for 
the position. Not long after, both Senators DeWine and Voinovich 
returned their ``blue-slips'' indicating that they had no objection to 
my nomination receiving a hearing.
    At the time, the 6th Circuit was operating at three-quarters 
strength, with 4 of its 16 seats vacant. It was apparent that the 6th 
Circuit nominees from Michigan were being held up and it seemed that if 
there were any chance for relief for the Circuit, it would come from my 
confirmation.
    While my nomination was pending, my confirmation was supported by, 
among others:
     Fourteen past presidents of the Ohio State Bar 
Association--representing individuals of every political stripe.
     More than 80 Ohio law school deans and professors, again, 
coming from every point on the political and ideological spectrum.
     Prominent Ohio Republicans, including Ohio Supreme Court 
Chief Justice Thomas Moyer, Ohio Supreme Court Justice Evelyn Stratton, 
Congresswoman Deborah Pryce, Congressman David Hobson, State Auditor 
Jim Petro, former Columbus Mayor Greg Lashutka, and former Franklin 
County Prosecutor Mike Miller.
     The National District Attorneys Association and the 
National Fraternal Order of Police.
     Virtually every major newspaper in the state, including 
two editorials by the generally conservative Columbus Dispatch.
    As a result of the vacancies on the court--one stemming back to 
1995 that is still open today--the 6th Circuit became the slowest 
appellate court in the Nation. Then Chief Judge Martin told me that the 
average time for a case to move from filing to decision was 2 years--a 
period 5\1/2\ to 6 months slower than the next slowest circuit.
    Friends of mine on the District Court informed me that a request 
for them to sit by assignment on the Circuit Court--traditionally an 
honor for District Court judges--had become so routine and onerous 
given busy dockets of their own that some district judges had begun to 
refuse the previously prestigious assignment.
    It was also evident at that time that more 6th Circuit vacancies 
were on the way--of the 12 members of the court at that time, 5 were to 
be eligible for senior status in 2000 or 2001. The possibility that the 
court would be half-empty before any reinforcements arrived is the 
reality we face today.
    At the time my nomination was pending, despite lower vacancy rates 
than the 6th Circuit, in calendar year 2000, the Senate confirmed 
circuit nominees to the 3rd, 9th, and Federal Circuits and afforded 
hearings to nominees from the 8th and DC Circuits. No 6th Circuit 
nominee had been afforded a hearing in the prior 2 years. Of the 
nominees awaiting a Judiciary Committee hearing, there was no circuit 
with more nominees than the 6th Circuit.
    With high vacancies already impacting the 6th Circuit's 
performance, and more vacancies on the way, why, then, did my 
nomination expire without even a hearing? To their credit, Senator 
DeWine and his staff and Senator Hatch's staff and others close to him 
were straight with me. Over and over again they told me two things:
    (1) There will be no more confirmations to the 6th Circuit during 
the Clinton Administration, and
    (2) This has nothing to do with you; don't take it personally--it 
doesn't matter who the nominee is, what credentials they may have or 
what support they may have--see item number 1.
    While I never had the opportunity to discuss the matter personally 
with Senator Hatch, with whom I had an excellent relationship during my 
tenure at the Justice Department, it was my strong sense that he and 
Senator DeWine were not at all comfortable with this State of affairs. 
On one occasion, Senator DeWine told me ``This is bigger than you and 
it's bigger than me.'' Senator Kohl, who had kindly agreed to champion 
my nomination within the Judiciary Committee, encountered a similar 
brick wall.
    The fact was, a decision had been made to hold the vacancies and 
see who won the Presidential election. With a Bush win, all those seats 
could go to Bush rather than Clinton nominees.
    Although I had hoped to be serving on the Federal Bench over the 
course of the last several years, I have certainly enjoyed the teaching 
career the Senate's inaction has afforded me. I do talk a little bit 
about my experience in my Legislation class and greatly enjoy my 
Adoption Center work on behalf of kids--especially kids who have been 
abused or neglected--in need of a safe, permanent home. I'm 
particularly grateful to Senator DeWine for his continued leadership in 
the area and was proud that my Center recognized him with our highest 
award this year, The Dave Thomas Award.
    Still, it's my sincere hope that we can find a way to allow Federal 
judicial nominees to receive timely consideration without undue delay. 
The current system is simply unfair to good and talented people from 
across the political and legal spectrum who are eager to lend their 
talents to the nation's well-being as members of the Federal judiciary.

                              A Solution?

    Since I teach Legislation to law students, I've tried to apply some 
of the lessons I discuss with my students to looking for a resolution 
to this problem. As an academic, here's how I see things.
    A great many pending vacancies stem from the refusal of the 
Republican-controlled Senate to confirm, or even provide a hearing to, 
well-qualified Clinton nominees. Other vacancies stem from the normal 
course of judicial retirements that have occurred during the Bush 
Administration.
    It seems clear that as long as the Democrats control the Senate, 
they will seek to ensure that their Republican colleagues do not 
benefit from their failure to process Clinton nominees and are denied 
the ill-gotten gain of a super-abundance of judicial appointments. 
Senate Democrats will insist that the White House should not be able to 
put conservative judges in seats that the Democrats believe would not 
be vacant but for stall tactics employed for several years by their 
Republican colleagues.
    Ironically, Republican Senators, on the other hand, will now insist 
that whatever the reasons for the vacancy, the courts are 
problematically backlogged and nominees are being ill-treated. They 
will insist that as long as a nominee is intellectually, 
temperamentally, and experientially well-prepared for service on the 
bench, confirmation hearings should be scheduled, post haste, with the 
treatment of Clinton nominees forgotten and forgiven.
    One promising development with respect to the consideration of 
judicial nominees is greater transparency in the process. Anonymous 
holds are gone. More candid and open discussion about nominees--at 
timely nomination hearings--will reflect well on the entire Senate and 
will remove the frustrating mystery confronted by past nominees.
    If the two parties wish to break the judicial nominations logjam, 
each will have to pay some deference to the other side's view. The 
Democrats will have to acknowledge that, in the end, the country is not 
well-served if the judicial branch is forced to operate at a level 
substantially less than full strength. The Republicans will have to 
accept that it is particularly galling to their Democratic colleagues 
to allow an extremely conservative individual fill a seat for which a 
Clinton nominee was left languishing without even a hearing. And the 
White House will simply have to confer more earnestly and completely 
with Democrats in the Senate about the acceptability of nominees and 
may need to withdraw some that are pending in the spirit of that 
increased consultation.
    If both parties will take the first step together, it's possible 
that we can stop the downward spiral plaguing the consideration of 
Federal judicial nominations. I'm eager to see what happens and discuss 
it with my class--and of course I'd be pleased to answer any questions 
members of the Subcommittee may have.

    Chairman Schumer. Well, I thank you, Mr. Markus, and your 
solution is a thoughtful one and if we have a chance, I will 
try to ask you a question or two on it, which we appreciate.
    Our next witness is Bonnie Campbell. She is now a partner 
at the distinguished Washington law firm of Arent Fox, where 
she acts as an adviser, negotiator, advocate, and litigator 
representing employers in personnel, labor relations, 
employment discrimination benefits, and other employment-
related matters.
    A graduate of Drake University and Drake's Law School, Ms. 
Campbell has an outstanding record of public service. She was 
nominated by President Clinton early in 2000 to serve on the 
U.S. Court of Appeals for the Eighth Circuit. She was supported 
by both of her Senators, Democrat Tom Harkin and Republican 
Chuck Grassley, given a ``qualified'' rating by the ABA, and 
afforded a hearing before the Judiciary Committee a few months 
later, in May of 2000.
    However, despite a non-controversial, rather unremarkable 
hearing, Ms. Campbell was never scheduled for a committee vote. 
No explanation for this failure to grant her due process was 
ever given and her nomination was eventually returned at the 
end of the 106th Congress. In January of 2001, President 
Clinton renominated Ms. Campbell, but President Bush failed to 
seize the opportunity and withdrew her nomination shortly 
thereafter.
    At the time of her nomination, Ms. Campbell was nearing the 
end of a distinguished term at the U.S. Department of Justice, 
where she served as Director of the Violence Against Women 
Office, a position to which she had been appointed by President 
Clinton in 1995. In that capacity, she oversaw a $1.6 billion 
program to provide funding to States to strengthen their 
efforts in the areas of domestic violence and sexual abuse.
    She also directed the Federal Government's efforts to 
implement the new criminal statutes created by the 1994 
Violence Against Women Act. Ms. Campbell oversaw the Justice 
Department's efforts to combine tough new Federal laws with 
assistance to States and localities to fight against violence 
against women. She also served for Secretary Madeline Albright 
as U.S. representative to the international negotiations on the 
creation of an international criminal court.
    Before coming to Washington, Ms. Campbell served as the 
Attorney General of Iowa, the first woman ever elected to that 
position. During her tenure in office, she was instrumental in 
pushing the State legislature to strengthen Iowa's domestic 
abuse statute, and in 1992 she authored one of the Nation's 
first anti-stalking laws.
    In 1997, Bonnie Campbell was named by Time magazine as one 
of the 25 most influential people in America. Ms. Campbell's 
record of distinguished public service and her experience in 
private practice combined to make an excellent nominee to the 
Court of Appeals for the Eighth Circuit, a fact with which both 
of her Senators obviously agreed.
    Given the chance at her hearing to raise questions about 
her or her work, members of the Senate Judiciary Committee 
voiced no objections at all, and no opposition from any quarter 
surfaced on any issue. Yet, once afforded a hearing, Bonnie 
Campbell was left to linger in limbo. She was not granted a 
committee vote, but neither was she confronted with any 
objection to her nomination proceeding.
    Ms. Campbell, you may proceed. Your entire statement will 
be read into the record. We thank you for being here.

       STATEMENT OF BONNIE J. CAMPBELL, WASHINGTON, D.C.

    Ms. Campbell. Thank you, Mr. Chairman. Good morning, 
members of the subcommittee. It is indeed a pleasure to be here 
today.
    In 1999, I learned that one of the Iowa judges serving on 
the Eighth Circuit had announced his pending retirement. I 
informed the White House of my interest in applying for that 
position, and I commenced the rather laborious paperwork so 
well described by Judge Rangel.
    President Clinton nominated me for the U.S. Court of 
Appeals for the Eighth Circuit on March 2 of 2000. I was 
pleased and proud to have been nominated, and had the support 
of both my Senators, Senator Grassley and Senator Harkin, with 
whom I had worked for years. Indeed, Iowa's two Senators have 
had a history of bipartisan support for judicial nominees for 
Iowa and Eighth Circuit vacancies.
    The Senate Judiciary Committee scheduled my confirmation 
hearing for May 25, and I felt privileged to have the 
opportunity to appear before the committee to answer any 
questions. Now, hearing from my colleagues, I realize how truly 
privileged I was. Both Senator Harkin and Senator Grassley took 
time from their very busy schedules to attend my hearing, make 
introductory remarks, and express their support for my 
nomination.
    From my own experience at the hearing and the observation 
of more astute observers than I, it seemed that my confirmation 
hearing was cordial, even friendly. Certainly, there was no 
hint that my nomination was viewed as controversial or 
contentious in any fashion.
    After the hearing, I received written follow-up questions 
from a number of Senators and I responded to those questions as 
quickly as possible. I continued to receive further written 
questions until late June. I answered each Senator's questions 
as completely and honestly as I could, and then I waited.
    By roughly July of 2000, after my confirmation hearing and 
after I had answered many follow-up questions, there was no 
indication that the Senate Judiciary Committee intended to 
schedule my nomination for a vote. The Senate leadership began 
publicly stating that the White House had submitted some 
nominations so late in the session that the committee would not 
be able to schedule further hearings or votes on those 
nominees, especially those nominated for the appellate courts.
    However, this ``it is too late'' excuse turned out not to 
be a hard and fast rule. A nominee for the Ninth Circuit and 
two district court nominees were all nominated on July 21, 
2000, more than 4 months after I was nominated, provided a 
hearing 4 days later, voted out of committee 2 days later, and 
confirmed by the Senate on October 3. These confirmations are 
evidence that the Senate had the capacity to move nominations 
through the process quickly when there was a determination to 
do so.
    Despite the fact that Senator Harkin went to the floor 
nearly everyday pleading with the Senate leadership to schedule 
a vote on my nomination, I never got a vote out of the 
committee or of the full Senate.
    At that time, any individual Senator could put an anonymous 
hold on a nominee, and I heard rumors that various Senators had 
indeed a hold on my nomination. There were other rumors 
floating around. One suggested the possibility that because the 
President had recess-appointed a Justice Department official, 
there would be no further confirmation votes for nominees as a 
kind of payback against the President.
    The more common theory was the one so capably described by 
my colleague, Kent Markus, which was that it was simply too 
late and there were not going to be any additional votes. To 
say that I was disappointed is obviously an understatement.
    Last week, President Bush declared a vacancy crisis in the 
Federal courts and suggested that the slowness of the process 
is ``endangering the administration of justice in America.'' In 
my view, President Bush could have simultaneously underscored 
his deep concern for the vacancy level in the Federal judiciary 
and demonstrated a bipartisan approach to filling those 
vacancies simply by renominating a number of individuals who 
had already been through the most time-consuming aspects of 
this process, rather than withdrawing their names when his new 
administration came to office.
    Considering the context of that moment--as you described, a 
sharply and narrowly divided electorate; the President assumed 
office after receiving less than 50 percent of the popular 
vote; a divided Congress so competitive that the switch of one 
person changed control of the Senate; a divided Supreme Court--
most key decisions are 5 to 4--such a wonderful show of 
bipartisanship would not only have reduced the vacancy level 
within the Federal judiciary, but also set a positive, 
constructive tone for filling future vacancies, one that in the 
end would have served the new President well.
    I know it is naive to say that even today President Bush 
could make a bipartisan gesture of goodwill by renominating 
some of those individuals who were never given the opportunity 
for a hearing or for a vote.
    I will stop there because I am trying to be respectful of 
the time constraints.
    [The prepared statement of Ms. Campbell follows:]

            Statement of Bonnie J. Campbell, Washington, DC.

    Mr. Chairman and Committee Members. Good morning. It is a pleasure 
for me to be here today to discuss the Federal judicial selection 
process and to share a little about my own experience as a nominee 
within that process.
    By way of introduction, let me discuss briefly the salient aspects 
of my background. I was born and raised in upstate New York but spent 
most of my adult life in Iowa. I attended Drake University and Drake 
Law School. After law school, I joined a law firm in Des Moines and 
engaged in the general practice of law. In 1991, I was sworn in as 
Iowa's Attorney General and began a legal career in the public sector. 
In 1995, I was appointed by President Clinton as the first Director of 
the Violence Against Women Office in the U.S. Department of Justice, 
where I also served as Counsel to the Attorney General. After my tenure 
at the Department of Justice, I joined the Arent Fox Law Firm here in 
the District of Columbia.
    In 1999, I learned that one of the Iowa Judges serving on the 
Eighth Circuit had announced his pending retirement, thus creating a 
vacancy on the Court. Believing that my experience as an attorney in 
private practice, as Iowa Attorney General, and as Director of the 
Violence Against Women Office and Counsel to the Attorney General had 
prepared me well for a position as an appellate judge, I informed the 
White House of my interest in applying for the position. I commenced 
the paperwork to begin the vetting process for the FBI, the American 
Bar Association, the Department of Justice, and this Committee.
    President Clinton nominated me for the United States Court of 
Appeals for the Eighth Circuit on March 2, 2000. I was pleased and 
proud to have been nominated and to have the support of both of my 
Senators--Senator Grassley and Senator Harkin. Indeed, Iowa's two 
Senators have had a history of bipartisan support for judicial nominees 
for Iowa and Eighth Circuit vacancies.
    The Senate Judiciary Committee scheduled my confirmation hearing 
for May 25, 2000, and I felt privileged to have the opportunity to 
appear before the Committee to answer any questions the Senators might 
have of me. Both Senator Harkin and Senator Grassley took time from 
their busy schedules to attend my hearing, make introductory remarks, 
and express their support for my nomination. From my own experience and 
the observation of more astute observers than I, it seemed that my 
confirmation hearing was cordial, even friendly; certainly there was no 
hint that my nomination was controversial or contentious in any 
fashion.
    After the hearing, I received written follow-up questions from a 
number of Senators, and I responded to those questions as quickly as 
possible. I received further written questions until late June. I 
answered each Senator's question as completely and honestly as I could. 
And, then I waited.
    By roughly July, 2000, after my confirmation hearing and after I 
had answered many follow-up questions from various Senators, there was 
no indication that the Senate Judiciary Committee intended to schedule 
my nomination for a vote. The Senate leadership began publicly stating 
that the White House had submitted some nominations so late in the 
session that the Committee would not be able to schedule further 
hearings or votes on nominees, especially those nominated for the 
appellate courts. However, this ``It's too late'' excuse turned out not 
to be a hard and fast rule. A nominee for the Ninth Circuit and two 
district court nominees were all nominated on July 21, 2000 (more than 
4 months after I was nominated), provided a hearing 4 days later (July 
25, 2000), voted out of committee 2 days later (July 27, 2000), and 
confirmed by the Senate on October 3, 2000 These confirmations are 
evidence that the Senate had the capacity to move nominees through the 
process quickly when there was a determination to do so.
    Despite the fact that Senator Harkin went to the Senate floor 
nearly every day pleading with the Senate leadership to schedule a vote 
on my nomination, I never got a vote in the Senate Judiciary Committee; 
consequently, I never got a vote of the full Senate. And, of course, I 
was never told why there was no vote on my nomination. At that time, an 
individual Senator could put an anonymous hold on a nominee, and I 
heard rumors that various Senators had put a hold on my nomination. 
There were other rumors: one offered the possibility that the 
President's recess appointment of a Justice Department official so 
angered certain Senators that the Senate retaliated by not confirming 
any more circuit court nominees; another speculated that the Majority 
Leader had simply decided to stop the judicial selection process 
completely until after the November election, hoping to avoid 
confirming any more Clinton nominees to the courts. This latter theory 
is, of course, the most likely explanation for the refusal to confirm 
judicial nominees, and, certainly, the one to which I ascribe.
    To say that I was disappointed is an understatement. My own 
circumstance aside, I always appreciated that, compared to others whose 
nominations similarly landed in limbo, I was probably relatively better 
positioned. I was caught up in the process for nearly 2 years. However, 
at least I did not have a private legal practice to worry about while I 
was shuttled along an emotional rollercoaster for those many months. 
For those nominees who were in private practice or the private sector, 
I wondered often whether their businesses stayed afloat through the ups 
and downs of a long and painful judicial selection process.
    Last week, President Bush declared a vacancy ``crisis'' in the 
Federal courts and suggested that the slowness of the process is 
``endangering the administration of justice in America.'' In my view, 
President Bush could have simultaneously underscored his deep concern 
for the vacancy level in the Federal judiciary and demonstrated a 
bipartisan approach to filling those vacancies by re-nominating a 
number of individuals who had already been through the most time-
consuming aspects of the process, rather than withdrawing their names 
when his new Administration came to office.
    Considering the context of that moment--a sharply and narrowly 
divided electorate (the President assumed office after receiving less 
than fifty percent of the popular vote), a divided Congress (so 
competitive that the switch of one person changed control of the 
Senate), a divided Supreme Court (most key decisions are 5 to 4)--such 
a wonderful show of bipartisanship would not only have reduced the 
vacancy level within the Federal judiciary but also set a positive, 
constructive tone for filling future vacancies, one that, in the end, 
would have served the new President well.
    I say today in earnest that, even now, President Bush could make a 
bipartisan gesture of good will by re-nominating some of those 
individuals who were never given the opportunity for a hearing or a 
vote. Just to assure that no one views this particular comment as self-
serving, let me point out that the vacancy for which I was nominated 
has been filled now by a capable and decent man whom I consider a 
friend.
    Recently, President Bush said that every nominee for the Federal 
bench should be given a vote of the Senate, and I agree with him. There 
may have been Senators who opposed my nomination for one reason or 
another--certainly, I suspect that to be the case--but I will never 
know, because, like so many others, my nomination died in Committee.
    Much has been said about whether it is appropriate for Senators to 
consider a nominee's ``ideology'' in the performance of their 
constitutionally mandated duty of advise and consent. Again, given the 
divisions within our society and its governmental institutions, common 
sense suggests that it would behoove the President to consult with the 
Senate on potential nominees in an honest attempt to assure that the 
candidates under consideration are within the mainstream of American 
thinking.
    Any discussion of the judicial nominating process would be 
incomplete without at least a passing comment addressing the massive, 
duplicative paperwork which is required of potential nominees. For me 
these forms included: the ABA Personal Data Questionnaire; the Senate 
Judiciary Committee Questionnaire; two Justice Department 
questionnaires dealing with my family's financial affairs and my 
medical condition; and the FBI Background Investigation Forms. I 
certainly appreciate that anyone seeking a life-time appointment to the 
bench should be carefully vetted, but a consolidation of the various 
forms designed to eliminate duplication is definitely in order.
    I close by expressing again my appreciation for the opportunity to 
appear on this panel discussing the Federal judicial selection process. 
I wish you well in your deliberations of this very important topic.
    Thank you.

    Chairman Schumer. Thank you, Ms. Campbell. We very much 
appreciate it.
    Our fourth witness is Enrique Moreno. He is 47. He is an 
attorney in private practice in El Paso, Texas. A native of 
Mexico, Mr. Moreno is a graduate of Harvard University and the 
Harvard Law School.
    Nominated by President Clinton in September of 1999 to 
serve on the U.S. Court of Appeals for the Fifth Circuit, Mr. 
Moreno was given the highest rating of ``well qualified'' by 
the ABA, and received significant support from community 
groups. He waited 15 months, but was never given the courtesy 
of a hearing before the Senate Judiciary Committee. President 
Clinton renominated him at the beginning of 2001, but President 
Bush withdrew the nomination after a short time.
    Mr. Moreno has been extensively involved in his community, 
serving as Chairman of the United Way of El Paso County, 
Chairman of the Hispanic Leadership Institute, and President of 
the Board of the El Paso Cancer Treatment Center and the El 
Paso Legal Assistance Center, and his service to many other 
organizations.
    He has been listed among the best lawyers in America, the 
top lawyers in El Paso, and has been given prestigious awards 
by the El Paso Chapter of the NAACP, the Hispanic Leadership 
Institute, and the El Paso Hispanic Chamber of Commerce.
    The El Paso Bar Association, the Mexican American Bar 
Association of El Paso, and the Hispanic National Bar 
Association are just a few of the organizations which endorsed 
his nomination, as did the local district attorney, county 
attorney, police chief, sheriff, the El Paso Chamber of 
Commerce, and the U.S. Hispanic Chamber of Commerce.
    Despite all of this support, his public service, and his 
sterling legal credentials, Mr. Moreno was subjected to perhaps 
the worst treatment of any of President Clinton's nominees, 
although there are certainly many terrible stories to choose 
from.
    In an unquestionably partisan political move, Enrique 
Moreno was insulted and demeaned by some Senators. Eight months 
after his nomination, the Senators from Texas announced their 
opposition to his confirmation on the clearly manufactured 
basis that he lacked the necessary experience. Seven of the 14 
judges sitting on the Fifth Circuit at the time has no prior 
judicial experience when appointed, and 6 of those 7 were 
appointed by Republican Presidents.
    Relying on the opinion of 10 of the 31 members of the hand-
picked, unelected, partisan ``advisory committee,'' the 
Senators denied Mr. Moreno the opportunity to defend himself 
and his record in front of the Judiciary Committee. Outrage in 
the community over this action, described by the Texas Monthly 
as ``a paroxysm of civic anger,'' was so strong that a folk 
ballad, called a correa, usually written about legendary 
heroes, was composed about Mr. Moreno's treatment.
    The San Antonio Express News, the El Paso Times, the 
Houston Chronicle, the Austin American Statesman, and the 
Dallas Morning News all editorialized against the Senators' 
rejection of Moreno, a rejection which can only be explained in 
not very nice and very partisan terms.
    Senator Sessions. Mr. Chairman, I would just note that my 
concerns that this panel would take up the time and there would 
be very little time for questions or the second panel before we 
vote are confirmed. I appreciate your introductions, but, in 
fact, they are more arguments than introductions. It has 
created a misimpression, frankly, into the problems that these 
nominees had. There is another side of this story. Obviously, 
we are not going to have much time to discuss it.
    I just wanted to share that because I think you have taken 
full advantage of the Chair to make your points.
    Chairman Schumer. I don't do it often, but once in a while 
it is fun. More than fun, I think it is important to do.
    Let me try to limit Mr. Moreno to 5 minutes. The vote will 
begin at 11:30, but maybe we can keep going for another 10 or 
15 minutes after. I will not ask questions and give you a 
chance, Senator Sessions, to ask some questions, as well as 
Senator Kyl.
    Senator Kyl. Mr. Chairman, might I just note I am not a 
member of this subcommittee, but I am a member of the full 
committee and I have been here for the full hearing and I would 
hope that prior to the time we have to go to vote, I would at 
least have some opportunity to make a comment or two.
    Chairman Schumer. Well, we were going to just limit it to 
subcommittee members because of the time. But after Senator 
Sessions is finished with his questions, I again will forgo 
questioning, unless I feel the need in response to one of 
Senator Sessions' questions, and let you make a brief 
statement. So let us have Mr. Moreno make his statement.
    Mr. Moreno, your entire statement will be read into the 
record, and if you could proceed in 5 minutes so we can get to 
the questions.

          STATEMENT OF ENRIQUE MORENO, EL PASO, TEXAS

    Mr. Moreno. Thank you, Mr. Chairman. I want to thank the 
subcommittee for the opportunity to appear before you. I 
greatly appreciate being given an opportunity to share my 
experience and to express a few personal viewpoints concerning 
the nomination process.
    Although I have been asked on a variety of occasions, this 
is the first time that I have agreed to speak publicly about my 
nomination experience. I do so today at the invitation of this 
committee, with the sincere hope that in some way my experience 
will lead to constructive dialogue that will improve the 
process for future nominees.
    Let me talk briefly about my background. I was not born in 
this country. My family emigrated to this country from Mexico 
when I was a young child. My father, a carpenter, and my 
mother, seamstress, came to this country with their children 
and their hope. Specifically, they hoped that their children 
could receive an education and succeed on their merits. My 
parents' hopes were realized.
    My dad always joked that he had sent his dumbest son to 
Harvard. I have been privileged and fortunate to live the 
American dream. I have practiced law in El Paso for 21 years. 
My practice has included a wide spectrum of litigation. I have 
practiced both civil and criminal law. In the civil area, I 
have represented both plaintiffs and defendants. I have 
represented large business clients, and also advocated for 
individuals on behalf of their civil rights. My work has been 
recognized by my colleagues and by my community. I am 
especially proud of the recognition I have received from State 
district judges who are in a unique position to observe 
performance and professionalism.
    I was nominated by President Clinton for a vacancy on the 
U.S. Court of Appeals for the Fifth Circuit on September 16, 
1999. Even before my nomination, I went through a thorough 
vetting process by the White House Counsel's office, the 
Justice Department, the FBI, and the American Bar Association. 
I am proud to say that I received unanimously the highest 
rating given by the ABA to judicial nominees. I was the first 
person from El Paso to be nominated to the Fifth Circuit. No 
one from El Paso has ever served on this important court.
    My nomination was received with great excitement. 
Certainly, my family and I felt that excitement. Certainly, my 
community felt that excitement. Perhaps because of my 
background, I came to realize that a lot of people identified 
with my nomination.
    I will always remember being stopped on the street by an 
elderly woman whom I had never met. I will never forget her 
telling me in Spanish that she had heard about my nomination, 
that it was important, that she was praying for me, and that 
she would be lighting candles for me on my behalf. I was 
touched by that experience, but I was overwhelmed by the 
support that I received from others.
    I received support from friends and colleagues, but also 
from strangers and non-lawyers. I received support from 
Democrats and Republicans. This support came from my community, 
from throughout the State of Texas and throughout the Nation. 
For those that I have not personally thanked, I would like to 
take this opportunity to express my gratitude for their support 
and encouragement.
    I was a nominee for 14 months. I was nominated again by 
President Clinton on January 3, 2001, and became a nominee for 
another 3 months. In those 14 or 17 months, I waited and I 
waited. I was never offered a hearing before this committee. I 
would have welcomed the opportunity to appear, to answer your 
questions, to address your concerns, to submit my 
qualifications and experience to open and candid debate. I was 
never offered that opportunity.
    That I am aware, there was no public opposition to my 
nomination. I was never publicly criticized for a specific 
position or a specific matter about my background. I don't 
recall being called controversial. If there were any specific 
concerns about me, they were never publicly debated.
    Six months into my nomination, I was invited by my State 
Senators to interview with an advisory group. This was a 
private interview, the specific results of which are not known 
even to members of the advisory group. I was later advised 
that, of the 31 members of the advisory group, 10 members 
recommended against my confirmation, 5 recommended in favor of 
my confirmation, and 16 either abstained or did not express an 
opinion. The Senators from my State wrote a letter stating that 
because of this vote, they would not support my confirmation.
    I do not think it is constructive for me to editorialize on 
that conclusion or that process. I think it is fair to observe, 
however, that an advisory group should not substitute for the 
U.S. Senate. I think it is also fair to observe that private 
deliberations are not a substitute for public debate. There is 
nothing in my background or my experience that I would shield 
from public debate.
    Let me close by anticipating a question. I am often asked 
if I am personally disappointed or bitter about my experience. 
Let me say that I am not. You see, I have received such 
encouragement, support, goodwill, and kindness from so many 
sources that it would be an extreme act of selfishness for 
anyone who has experienced what I have experienced to say that 
they have a right to be personally disappointed.
    I am not personally disappointed. I am disappointed for my 
community, for the people that supported my nomination, for the 
people that identified themselves with my nomination. With all 
due respect, I believe that they deserved better.
    Thank you again for this opportunity.
    [The prepared statement of Mr. Moreno follows:]

              Statement of Enrique Moreno, El Paso, Texas

    Good morning. I would like to thank the Committee for giving me the 
opportunity to appear before you. I greatly appreciate being given the 
opportunity to share my experiences and to express a few personal 
viewpoints concerning the nomination process. Although I have been 
asked to do so on a variety of occasions, this is the first time that I 
have agreed to speak publicly about my nomination experience. I do so 
today, at the invitation of the Committee, with the sincere hope, that, 
in some way, my experience will lead to a constructive dialog that will 
improve the process for future nominees.
    Let me talk briefly about my background. I was not born in this 
country. My family immigrated to this country from Mexico when I was a 
young child. My father, a carpenter, and my mother, a seamstress, came 
to this country with their children and their hope. Specifically, they 
hoped that their children could receive an education and succeed on 
their merits. My parents' hopes were realized. My Dad always joked that 
he had sent his dumbest son to Harvard. I have been privileged and 
fortunate to live the American dream.
    I have practiced law in El Paso, Texas for 21 years. My practice 
has included a wide spectrum of litigation. I have practiced both civil 
and criminal law. In the civil area I have represented both plaintiffs 
and defendants. I have represented large business clients and also 
individuals advocating for their civil rights. My work has been 
recognized by my colleagues and by my community. In one survey of State 
judges, I was rated as one of the three top trial attorneys in El Paso. 
I am especially proud of that recognition, coming as it did from the 
State District Judges who are in a unique position to observe 
performance and professionalism. I am proud of my career, my legal and 
non-legal experience, and the tradition that my career represents.
    I was nominated by President Clinton for a vacancy on the United 
States Court of Appeals for the Fifth Circuit on September 16, 1999. 
Even before my nomination, I went through a very thorough vetting 
process by the White House Counsel's Office, the Justice Department, 
the FBI, and the American Bar Association. I am proud to say that I 
received, unanimously, the highest rating given by the ABA to judicial 
nominees. I was the first person from El Paso, Texas to be nominated to 
the Fifth Circuit. No one from El Paso has ever served on this 
important court.
    My nomination was received with great excitement. Certainly, my 
family and I felt that excitement. Certainly, my community felt that 
excitement. Perhaps because of my background, I came to realize that a 
lot of people identified with my nomination. I will always remember 
being stopped on a street by an elderly woman whom I had never met. I 
will never forget her telling me in Spanish that she had heard about my 
nomination and that she was praying for me and lighting candles on my 
behalf.
    I was overwhelmed by the outpouring of support that I received from 
her and so many others. I received the support from friends and 
colleagues, but also from strangers and nonlawyers. I received the 
support from Democrats and from Republicans. This support came from my 
community, from my home State of Texas, and throughout the Nation. For 
those that I have not thanked personally, I would like to take this 
opportunity to express my gratitude for the support and encouragement.
    I was a nominee for 14 months. I was nominated again by President 
Clinton on January 3, 2001 and I became a nominee for another 3 months. 
In these 14 or 17 months, I waited and waited. I was never offered a 
hearing before this Committee. I would have welcomed the opportunity to 
appear, to answer questions, to address your concerns, to submit my 
qualifications and experience to open and candid debate. I was never 
offered that opportunity.
    That I am aware, there was no public opposition to mynomination. I 
was never publicly criticized for a specific position or a specific 
matter about my background. I don't recall being called 
``controversial.'' If there were specific concerns about me, they were 
never publicly debated.
    Six months into my nomination, I was invited by my State's Senators 
to interview with an advisory group. This was a private interview, the 
specific results of which are not known even to members of the advisory 
group. I was later advised that of the thirty-one members of this 
advisory group, ten members recommended against my confirmation, five 
recommended in favor of my confirmation, and 16 either abstained or did 
not express an opinion. The Senators from my State wrote a letter 
stating that because of this vote they would not support my 
confirmation. The only stated basis for the opposition was the apparent 
view of ten members of the Advisory Group that I ``had not achieved the 
level of experience necessary to be fully engaged and effective'' on 
the Fifth Circuit. I do not think it's constructive for me to 
editorialize on that conclusion or that process. I do think it is fair 
to observe, however, that an advisory group should not substitute for 
the U.S. Senate. I also think it's fair to observe that private 
deliberations are not a substitute for public debate. There is nothing 
about my background or experience that I would shield from public 
debate.
    I respect the Senate, its traditions and its customs. I continue to 
respect the nomination process. With all due respect, I have a simple 
and unoriginal observation about the nomination process. Nominees 
should get a hearing, hopefully a timely hearing. A nominee should 
receive an open public debate about the merits of his or her 
nomination.
    Let me close by anticipating a question. I am often asked if I am 
personally disappointed or bitter about my experience. Let me say that 
I am not. You see, I have received so much encouragement, support, good 
will, and kindness from so many sources. It would be an act of 
selfishness for anyone who has experienced what I have experienced to 
say that they have a right to be personally disappointed. I am not 
personally disappointed. I am disappointed for my community, for the 
many people that supported my nomination, and for the many people that 
identified with my nomination. With all due respect, I believe that 
they deserved better.
    Being nominated by the President of the United States for an 
important position is a source of great pride. Being recognized by my 
colleagues as well qualified for that position is also a source of 
great pride. Finally, appearing before this Committee is a source of 
great pride. While I would have preferred to appear before you earlier 
and under different circumstances, I hope that my comments and my 
experience can be used constructively.
    Thank you again for this opportunity.

    Chairman Schumer. Thank you, Mr. Moreno.
    Now, I am going to let Senator Sessions do the first 5 
minutes of questions.
    Senator Sessions. Well, thank you, Mr. Chairman. Let me 
just say I appreciate these individuals who have testified. One 
thing I would say is you have not been subject to intensive 
probing in to your backgrounds to see what kind of 
subscriptions to magazines you might have, or been attacked 
personally or ethically, or had your ethics challenged in any 
way. I think that is something you can be proud of.
    The system confirms a lot of people. We confirmed 377 for 
President Clinton. Only one was voted down and 41 were left 
unconfirmed. You were part of that 41, but I just want to say 
to you there is life after non-confirmation. I am sure you are 
finding that to be so. I wish you the best.
    Mr. Chairman, if it would be all right if Senator Kyl could 
go first and then I could follow him.
    Chairman Schumer. We are going to vote pretty soon, but, 
yes, I will be happy to give Senator Kyl--I would just the 
Senator to try and limit his comments to 5 minutes, no more.
    Senator Kyl. I will do it in less than 5 minutes, Mr. 
Chairman.
    Chairman Schumer. Thank you, Senator.
    Senator Kyl. I have just two quick points. I would like 
unanimous consent to submit a statement for the record.
    Chairman Schumer. Without objection.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Here are my two points, and let me begin by 
just quoting statements from two of the witnesses in the 
interests of time. From the last witness, this comment: ``I 
have a simple and unoriginal observation about the nomination 
process. Nominees should get a hearing, hopefully a timely 
hearing. A nominee should receive an open public debate about 
the merits of his or her nomination.''
    To one of the other witnesses this concluding two 
sentences: ``Hopefully, our presence here today will, in fact, 
set the record straight so that other judicial nominees, 
regardless of their party affiliation, will not suffer the same 
fate. They and the American people deserve better.''
    Mr. Chairman, I agree, and I think that if this hearing 
establishes anything, it is that nominees should get a 
hearing--precisely the point that we and President Bush have 
been making. If it is wrong for three of these witnesses to 
have been denied a hearing, it is wrong for this committee now 
to deny a hearing to current nominees.
    The second point I would like to make is to quibble a bit 
with the new standard that you discussed in your opening 
statement about the Senate's responsibility to ensure balance 
on the courts, especially because of the view that the Senator 
from New York can objectively define that balance when speaking 
of the Bush nominees as being ``out-of-mainstream conservative 
idealogues.'' That is a direct quotation from you, I think.
    I would just like to say that I suspect that neither the 
Senator from New York nor the Senator from Arizona, myself, can 
objectively define what is a conservative idealogue, as well 
perhaps as the President, who represents all of the country, 
who is elected by all of the citizens of the country, not just 
the citizens of a particular State with a particular relative 
ideology, a President that now has an approval rating of over 
70 percent.
    I would suggest that that kind of broad characterization 
has to be brought down to specific names. Is John Roberts an 
out-of-the-mainstream conservative idealogue? Is Miguel Estrada 
an out-of-the-mainstream conservative idealogue?
    I will conclude this point by taking up the challenge of 
the chairman of the subcommittee, who said ``I challenge you to 
present any of the four nominees of the eight circuit court 
nominees that the President made exactly a year ago today and 
stack them up against these nominees, and you will find that 
they are equally qualified.''
    Now, without denigrating any of the qualifications of these 
four witnesses, all of whom, I suspect, have very fine legal 
backgrounds, one of the four before us here has a unanimous 
``well qualified'' background. Four of the nominees currently 
pending--Miguel Estrada, John Roberts, Priscilla Owen, and 
Terry Boyle--four of the nominees that have been pending now 
for over a year and haven't been given a hearing have ``well 
qualified'' unanimous recommendations from the American Bar 
Association.
    My point again is not to suggest that any of these nominees 
would not have been qualified to serve on the Federal 
judiciary, but to make the point that the nominees that 
President Bush has made who have been languishing now for over 
a year without a hearing have received unanimous ``well 
qualified'' recommendations from the American Bar Association, 
your gold standard. So there can be no reason for these 
nominees not having a hearing, and as these witnesses have 
said, every one of these nominees deserves to have a hearing.
    I appreciate your holding this hearing today, Mr. Chairman, 
because I think it makes the point that we have been making all 
along.
    Thank you.
    Chairman Schumer. Thank you, and I would just, before I 
call on my colleague from Alabama, say a couple of points.
    No. 1, I think the Bar standard goes to one of the criteria 
I have had for nominating judges, and that is excellence. I 
think all four of these nominees, or former nominees, merit 
that standard of excellence. I think that the two you have 
mentioned, Estrada and Roberts, meet that excellence criteria.
    I go beyond that; I have made no bones about it. I believe 
that moderation ought to be a standard, not moderation of each 
particular nominee, but moderation of the bench. The President 
has said it himself. The President has said that he wants 
nominees in the guise of Scalia and Thomas. Those are the two 
most conservative members on the Supreme Court, a Supreme Court 
that doesn't have anybody in the Brennan or the Hugo Black 
tradition. The most objective observers believe that both 
Ginsburg and Breyer, the two Clinton nominees, are fairly 
moderate.
    Senator Kyl. It is all in the eye of the beholder, Mr. 
Chairman.
    Chairman Schumer. It is, it is. You know what? You and I 
will never agree, but it is sort of like what the Supreme Court 
said. I think it was Potter Stewart who said it about 
pornography: you know it when you see it, and I think most 
people know it and they see it.
    We are not fools here. We know what the administration's 
plan has been here. They have stated it--thank God for their 
candor--and that is to recapture the judiciary and move it way 
over. Now, you may say that is mainstream. I don't think many 
people do.
    If you look at what the opinions of Scalia and Thomas have 
stood for and then just look at polls and see where the 
American people stand on most of these issues, Scalia and 
Thomas, I would argue, are way out of the mainstream, far more 
out of the mainstream than Breyer and Ginsburg. But that is for 
another day, that is for another day.
    I would just that ``well qualified'' by the Bar Association 
is a wonderful standard, but it is not my sole criteria. As you 
know, I have labored mightily that we do debate judicial 
ideology. I think that is fair. I just saw a survey. If you ask 
the American people if judicial ideology should be one of the 
things debated in choosing judges, 57 percent said yes, 30-
some-odd percent said no.
    It is not the only criteria. I have voted for many, many 
judges who are to the right to me and I have voted for some who 
are to the left of me, but it should be part of it, I think. 
That is what I am laboring to do here. This hearing is a little 
different. We have heard such indignation. I agree with you 
that everyone should have a hearing, but we have heard such 
indignation from the other side about judges being held up, 
when the same thing was done a year or two ago.
    I don't understand that. I can understand saying that was 
wrong and this is wrong, but to be on such a high horse when 
just in a short time, not in distant historical memory, the 
same thing was done, that bothers me. That bothers me because 
that is saying that something else is at work here. If someone 
felt so strongly that every judge should have a hearing, then 
why didn't that happen 2 years ago?
    By the way, I do believe that Senator Hatch tried to make 
that happen, as one of the witnesses said. I do. I have to say 
this, that I think both Senator Kyl and Senator Sessions were 
very fair and have been fair in all of this. But we all know 
what happened. Somehow, somewhere, at a higher place, the 
signal came down ``stop,'' and it did.
    So let's get off the high dudgeon here that, oh, this is 
the most horrible thing. Well, if it was horrible in 2001 and 
2002, it was also horrible in 1999 and 2000, and I would like 
to see the debate shift from that and go to the place where we 
are really all debating, which is judicial philosophy. We know 
that, we know that.
    Hate the ``gotcha'' business, and it got many more 
conservative judges than liberal judges, unfortunately, but it 
was sort of strange to me when somebody was accused of a minor 
peccadillo back in their early, early days, a minor infraction, 
that somehow, if it was a liberal judge, all the Republicans 
said, that is a horrible infraction, I have to vote no, but all 
the Democrats said that is venial and forgivable. The opposite: 
when it was a conservative judge, all the Republicans would say 
that is venial, we can leave live with it, but all the 
Democrats were in high dudgeon.
    Everyone knew what was going on. Everyone knew, because if 
it was really that we were just judging the merits of that 
minor impropriety back then, then the votes should have been 
scattered equally among Democrats, Republicans, liberals, 
conservatives. It wasn't.
    So I have been pretty clear and pretty consistent here, as 
you know, and you have said that, to your credit. But let's 
debate what we are really debating here. Let's not put up 
subterfuges, and I would say that the slowness of the process 
again is not really what we are talking about here. It is not 
really what we are talking about. We are talking about 
something else, just as looking at minor improprieties, which 
seemed to be the rage 5 or 6 years ago--and both sides did it; 
I do not claim that this was a Republican or Democratic thing--
was also a subterfuge. That is the point I wish to make here.
    I apologize, Senator Sessions.
    Senator Sessions. Well, Mr. Chairman, I don't agree. I 
think the ground rules have been changed. I think this is an 
unprecedented slow-down of judicial nominations, as the chart 
Senator Hatch put up there displays and shows. Overwhelmingly, 
President Clinton got the nominations he wanted confirmed.
    This Senate is not a perfect body, and for these good 
people, there is no perfect consistency in this body. I mean, I 
guess you can count, well, Lord, how did I ever even get as far 
as I got? That is what I consoled myself with. I am amazed I 
even got to the U.S. Senate. Yet, I am not entitled to be a 
Federal judge.
    The Senate does have responsibilities here, but we have got 
to discipline ourselves. We have got to have some sort of 
integrity in the process, and I believe we are looking at a 
historic slow-down of some of the finest nominees that any 
President has ever submitted.
    I know, Ms. Campbell, you mentioned that the President 
should nominate maybe some of the nominees that were not 
confirmed. It did nominate, as you know, two former Clinton 
nominees, Roger Gregory and Legrome Davis, both of whom were 
confirmed. He didn't renominate every nominee that President 
Clinton had submitted, but he did that.
    You served in the Department of Justice. Did President 
Clinton ever nominate any of the 54 unconfirmed nominees under 
former President Bush? Did he renominate any of those when he 
took office?
    Ms. Campbell. Unfortunately, I don't know the answer to 
that, and I was conceding that that sounded naive.
    Senator Sessions. Well, the current President Bush has 
renominated a few of President Clinton's nominees. President 
Clinton renominated a few of the fine nominees that the first 
President Bush had submitted, and that is the way life is. So I 
think the current President Bush reached out significantly 
there, and I believe that is important.
    Let me just mention a few things. I don't know how people 
make it sometimes and others don't make it. I am sure you have 
wrestled with that personally and you realize that it is not a 
reflection on you personally that you did not make it through 
this process.
    I would point out that 377 were confirmed; 41 were left 
pending when President Clinton left office. Only one was voted 
down on the floor of the Senate. Only one was voted down, so I 
think that is a pretty good record. We would like to see the 
Democratic leadership provide the same respect to the Bush 
nominees that the Clinton nominees received.
    You know, Mr. Markus and Ms. Campbell, I suspect you would 
have been good judges. I don't know, but this is a political 
environment. You were being nominated, I guess all of you were, 
to the courts one step below the U.S. Supreme Court, important 
courts. I know the two of you had been close to the 
administration, had been involved in the Department of Justice, 
but had not been active in the practice of law and had not 
tried any lawsuits, to my knowledge. I think neither one of you 
at the time of your nominations had actually tried a jury 
trial. Is that correct?
    Ms. Campbell. That is correct in my case, but I would argue 
that serving as a public sector lawyer is indeed the practice 
of law, far more akin to being an appellate judge.
    Senator Sessions. Well, I respect that, but all I am 
telling you is all these factors come together. To me, it is a 
factor. I mean, I practiced law full-time in Federal court for 
15 years before Federal judges, so I have some appreciation for 
that. That was a valuable experience to me. Serving in the 
Department of Justice was also a valuable experience.
    But I think it was a lack in your record, so you come at it 
from a political process at the last of an administration and 
things may not have moved as fast as you felt like you were 
entitled to have them move. I mean, that is just the way the 
Senate works sometimes.
    Mr. Markus. Senator, I think merely all we are saying is 
that had there been an opportunity for a hearing, we might have 
had an opportunity to discuss what factors were relevant, what 
our backgrounds were, what qualifications we had, and whether 
we ought to have been confirmed.
    Senator Sessions. Well, I understand that and I would just 
say this to you, that is part of the process--senatorial 
courtesy, the blue slip policy that is historically part of 
this process.
    I know, Mr. Moreno and Judge Rangel, you fell afoul of 
that, but Senator Schumer wants to enhance it. He has advocated 
an enhanced power of the blue slip policy and he wants even 
more consultation than President Clinton ever gave to 
Republican Senators. So there is some inconsistency there, it 
seems to me.
    I know our time is running out. Mr. Moreno, you have got a 
lot of fine supporters and I appreciate that, but this 
commission there that Senator Gramm had, I know, did not 
support your nomination. That was factor obviously, I guess, in 
the blue slip factor or the objection that occurred. So all 
these things are frustrating.
    The vote is about over, Mr. Chairman. I have talked too 
long.
    Chairman Schumer. I will let you have the last word.
    Senator Kyl. Mr. Chairman, might I just thank the panel of 
witnesses here? I especially appreciated just the tone, Mr. 
Moreno, of your comments. Not that I didn't appreciate the 
others, but I especially yours and I appreciate your being 
here.
    Chairman Schumer. We have a second panel. We have four 
votes. We will resume in approximately one hour. The hearing is 
temporarily recessed.
    [The subcommittee stood in recess from 11:45 a.m. to 12:50 
p.m.]
    Chairman Schumer. The hearing will resume. First, let me 
apologize to the witnesses and thank them for their patience. 
It is very rare that we get a block of four votes together that 
delays us so long, but unfortunately that happened. You might 
be happy to know that it was four judges we voted for. Anyway, 
it is something we can probably agree on.
    Also, my colleague and friend, Jeff Sessions, is on his way 
over, but has given us the okay to start. So I am going to 
introduce the first witness, C. Boyden Gray. I have always 
wondered what the ``C'' stands for.
    Mr. Gray. Clayland.
    Chairman Schumer. Clayland.
    Mr. Gray. I didn't want to be known as Clay Gray.
    Chairman Schumer. Clay Gray, yes, that is true. I thought 
it might be Charles, but a lot of Charleses don't want the 
Charles and do a ``C'' also.
    C. Boyden Gray is a graduate of Harvard University and the 
University of North Carolina Law School, where he served as 
Editor-in-Chief of the UNC Law Review. He clerked for Chief 
Justice Earl Warren, of the U.S. Supreme Court, for a year. Mr. 
Gray joined the Washington, D.C., law firm of Wilmer, Cutler 
and Pickering in 1969 and became a partner in 1976.
    In 1981, he left the firm to serve as legal counsel to Vice 
President George Bush. He served as counsel to the Presidential 
Task Force on Regulatory Relief, chaired by Vice President 
Bush. Mr. Gray later served as Director of the Office of 
Transition Counsel for the Bush transition team and as counsel 
to President Bush from 1989 to 1993. He returned to Wilmer 
Cutler in 1993.
    Mr. Gray currently serves as Chairman of the Citizens for a 
Sound Economy. In addition, he is a member of Harvard 
University's Committee on University Development, the Board of 
Trustees of the Washington Scholarship Fund, St. Mark's School, 
and the National Cathedral School. He recently served on the 
Bush-Cheney Transition Department of Justice Advisory 
Committee.
    Mr. Gray, your entire statement will be read into the 
record. You are an old hand here. You know the rules. You have 
5 minutes and may proceed as you wish.

   STATEMENT OF C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL, 
                        WASHINGTON, D.C.

    Mr. Gray. Thank you very much, Mr. Chairman. In light of 
the testimony this morning, I thought I could probably best 
summarize my testimony with just two points.
    First, we faced in 1989 a Democratic Senate with a larger 
majority than you have now.
    Chairman Schumer. It couldn't be smaller. Excuse me. I am 
sorry.
    Mr. Gray. Yet, we were able to work out agreements with or 
consultations with the home State delegations and eventually 
get most of our nominees confirmed, even though many of them, I 
think, would be classified under your rubric as too 
conservative. This was not a factor, at least officially.
    I therefore would submit that what is going on now is a 
change in the way judicial nominations have proceeded in the 
past. I think it is a fundamental change and if this is what 
the Senate can achieve, I suppose that is fair game. But it is, 
I want to again repeat, a fundamental change in the way I think 
this has operated in the past.
    The second point that I want to make is that, 
notwithstanding that, it is true that in the last year of a 
presidency there is a slow-down, especially if it is thought 
that there might be a change in the White House. This is a 
tradition that may not be a pleasant one, but it goes back 
many, many years and it is quite bipartisan. Therefore, I think 
it is unfair to compare the confirmation rate, Mr. Chairman, of 
the last year of the Clinton administration with the first 2 
years of the Bush 43 administration.
    If you take the four witnesses, the fine men and women who 
were here earlier this morning, two of them had home State 
problems, and the other two were not last-minute, but last-year 
nominees, when traditionally the confirmation rate goes way, 
way down.
    I have some personal experience with this, having been 
involved peripherally with the Judiciary Committee on some 
legislative battles in the late 1970s. In 1980, the 
Republicans, in the minority, slowed down the nominations of 
President Carter quite dramatically. Two did, however, get 
through--Justices Ginsburg and Breyer, one to the D.C. Circuit 
and one to the First Circuit. But this is a long, long 
tradition of slow-down and the comparisons just don't wash, in 
my opinion.
    As I said, we were able in the Bush 41 administration to 
get consultations enough to not get expeditious treatment, 
necessarily, but to get many of our nominees through. 
Nevertheless, we still were left with 54 not getting confirmed 
and 97 vacancies, as compared to the number of 41 and 67 from 
the past administration.
    As for the current nominees of the Bush administration, I 
believe that, in addition to being well qualified, they are 
accepted and they are mainstream. They have, by and large, the 
support of their home State delegations and I don't know how 
anyone can say--to pick two examples of gentlemen that I know 
well myself, Roberts and Estrada, how they can be considered to 
put any court that they might be confirmed to out of whack. 
They are both very, very fine individuals.
    I think John Roberts, who was a casualty of being nominated 
in the last year of Bush 41 and didn't make it, perhaps 
understandably, has argued more cases in the Supreme Court than 
any living appellate advocate, and I think has got the absolute 
support of anyone who has ever heard him or dealt with him.
    If you go through some of the others who have not had 
hearings, I think you would see that there is really no basis 
for holding them up: Levinsky Smith, African American nominee 
to the Eighth Circuit, supported by both Arkansas Senators, not 
yet confirmed; Priscilla Owen, rated ``well qualified'' by the 
ABA, support of both Texas Senators, not yet confirmed; Jeff 
Sutton, former Solicitor General of Ohio, ``well qualified'' by 
the ABA, Sixth Circuit, home State Senate support, not yet 
confirmed; Deborah Cook, Ohio Supreme Court Justice, support of 
both Ohio Senators, not yet received a hearing; and, finally, 
Professor Michael McConnell, an old colleague of mine, a former 
Brennan clerk, rated ``well qualified,'' supported by many of 
your supporters here, including Professor Cass Sunstein, 
support of both Utah Senators, but not yet confirmed.
    I really believe that there is a change in the way this 
confirmation process has operated in the past. I believe the 
President of the United States is elected to make these 
judgments. I for one would like the power to say that balance 
is being affected one way or the other, but I believe that is 
for the President to decide, with the full Senate making vote, 
not for the Judiciary Committee to screen in isolation.
    Thank you very much.
    [The prepared statement of Mr. Gray follows:]

       Statement of C. Boyden Gray, Former White House Counsel, 
                            Washington, DC.

                            I. Introduction

    Good morning, Mr. Chairman. Thank you for this opportunity to 
appear today. The topic of this hearing, ``The Ghosts of Nominations 
Past: Setting the Record Straight,'' is of particular interest to me: 
As White House Counsel during the first Bush Administration from 1989 
to 1993, I dealt directly with the selection of nominees and their 
confirmation.

                          II. Bush I Nominees

    Our practice under President Bush was to consult home-state 
Senators in advance of nomination regarding nominees for the District 
and Circuit Court. In all but a small handful of cases, the 
Administration was able to secure the support or non-opposition of both 
home-state Senators. On this score, we and the Senators operated under 
generally accepted rules of engagement that a Senator's disagreement 
with a potential nominee on a legal or political question was not a 
sufficient basis for that Senator to oppose the nominee.
    Our determined efforts not to surprise home-state Senators and to 
address any legitimate concerns in advance of nomination may have 
helped us avoid the multi-year delays experienced by some of President 
Clinton's nominees. Even though we nominated some individuals who 
Members of this Committee might view as more conservative than they 
would have preferred, generally speaking we had good faith on both 
sides and were able to secure home-state Senator support.
    We were, of course, disappointed that outstanding nominees like 
Terry Boyle from North Carolina for the Fourth Circuit, Frederico 
Moreno from Florida for the 11th Circuit, Lillian Bevier from Virginia 
for the 4th Circuit, and John Roberts from Maryland for the D.C. 
Circuit did not get confirmed. In all, 54 of our nominees did not get 
confirmed at the end of the 102d Congress, and we were left with 97 
vacancies on the Federal bench.

                         III. Clinton Nominees

    My understanding is that many of the Clinton nominees who were 
delayed for long periods of time and not confirmed had home-state 
Senator problems. For example, I am advised that Helene White, Kathleen 
McCree Lewis, Jorge Rangel, Enrique Moreno, James Beaty, and James Wynn 
all lacked support from one or both of their home-state Senators. Not 
knowing the particulars of all these instances, I cannot speak as to 
whether these issues were all of the kind we would have recognized and 
endeavored to address, but from my knowledge of the Senators involved, 
I would guess that the Clinton Administration must have been partially 
to blame in at least several of these instances.
    Nonetheless, President Clinton was able to have 377 of his nominees 
confirmed--5 short of the all-time record. He lost one floor vote for a 
nominee to the district court. And when the Senate adjourned for the 
last time under his presidency, there were only 67 vacancies and only 
41 nominations expired without action. Overall, that is a very good 
record.

                          IV. Bush II Nominees

    Of course, the context of this hearing clearly relates the ``Ghost 
of Nominations Past'' to the present nominees. Currently, of the 21 
circuit court nominees pending, only 5 appear to have support issues 
with their home-state Senators. Thus, over 75 percent of these circuit 
nominees have no support issues from home-state Senators, but have 
still not been confirmed.
    For example, John Roberts was nominated in Bush I, but his 
nomination expired through delay in 1992. There is widespread agreement 
that he is one of the top appellate attorneys in the Nation. He was 
renominated 1 year ago today by President George W. Bush, but still has 
not received a hearing. It has been 10 years--or 3,755 days--since his 
first nomination and he has spent over 1.5 years/620 days during which 
his nomination has actually been pending without a hearing.
    Miguel Estrada, who will be the first Hispanic judge on the D.C, 
Circuit, was rated ``well qualified'' by the ABA. He is a former 
Supreme Court clerk, an alumnus of the Solicitor General's office, and 
a partner at a major D.C. firm. His professional qualifications are 
impeccable. A year after his nomination, he still has not received a 
hearing.
    Levinsky Smith, an outstanding African American nominee to the 8th 
Circuit, is supported by both Arkansas Senators, but has not yet been 
confirmed.
    Priscilla Owen, a justice on the Texas Supreme Court, has been 
rated ``well qualified'' by the ABA, is supported by both Texas 
Senators, but has not been confirmed.
    Jeff Sutton, the former Solicitor General of Ohio, an excellent 
nominee to the 6th Circuit, is supported by both home-state Senators, 
but has not yet been confirmed.
    Deborah Cook, a justice on the Ohio Supreme Court and an 
outstanding nominee to the 6th Circuit, is supported by both Ohio 
Senators, but has yet to receive a hearing.
    And Professor Michael McConnell, who clerked for Justice William 
Brennan, was rated ``well qualified'' by the ABA, is supported by 
numerous professors, including Cass Sunstein, and has the support of 
both Utah Senators, but has not been confirmed.

                             IV. Conclusion

    In sum, I believe that the President and the Senate should work 
together, with good faith on both sides, to keep the courts staffed 
with a sufficient complement of judges to conduct the Nation's judicial 
business in a timely manner. This said, rarely will a President of one 
party nominate a person from the other party. But the President of one 
party should consult with Senators of the other party in good faith. 
And, I believe that home-state Senators should, in turn, act in good 
faith toward the President.
    As Lloyd Cutler and I stated at a hearing on the judicial selection 
process hearing last year, the Senate should confirm a President's 
nominees if they are qualified, even if the Senate might not share a 
particular nominee's ideology. I also believe that is generally what 
the Senate has done, including under President Clinton. For example, 
Ruth Bader Ginsburg, former General Counsel to the ACLU, was confirmed 
by a 96-3 vote despite the fact that most Republican Senators disagreed 
with her personal political views. I do not believe either the 
President or the Senate should impose a litmus test with respect to any 
particular issue. And I certainly do not believe the Senate Judiciary 
Committee--which means any individual Senator in an evenly divided 
Senate--should preclude full Senate consideration of a Presidential 
nominee.

    Chairman Schumer. Thank you, Mr. Gray. We appreciate your 
testimony.
    Now, we are going to hear from Judge Carlos Bea. The 
Honorable Carlos Bea is a superior court judge in San 
Francisco, California. A nominee to the Federal bench during 
the first Bush administration, Judge Bea is a native of Spain 
and a graduate of Stanford College and Stanford Law School.
    Judge Bea was in private practice from 1959 to 1990. He was 
also involved in family businesses during that time, including 
as vice president and general counsel for the American Pacific 
Concrete Pipe Company. Since 1990, he has served on the local 
bench in San Francisco.
    Judge Bea, your entire testimony will be read into the 
record and you may proceed as you wish for 5 minutes.

STATEMENT OF CARLOS BEA, JUDGE, CALIFORNIA SUPERIOR COURT, SAN 
                     FRANCISCO, CALIFORNIA

    Judge Bea. Thank you very much. I was born in Spain, but of 
Cuban parents, and was born a Cuban and went to school in 
Havana. Neither my family nor I had any contact with the Cuban 
government either then or now, except I was sent as part of the 
Cuban Olympic basketball team to Helsinki in 1952, and that is 
the only time I traveled on government money.
    Chairman Schumer. Were you a forward or a guard?
    Judge Bea. I was the tallest man on the team, at 6 foot 4 
inches, so I was the center.
    Chairman Schumer. I was a forward on my high school team--6 
foot, 1 inch.
    Judge Bea. When I went back to Stanford, I was a forward. I 
wasn't a center.
    So, anyway, I was nominated. I was nominated by President 
Bush in November of 1991. Senator Seymour tried to help as much 
as he could. He was in the Senate a very short time, as you 
will remember. Senator Cranston received me very kindly and 
said that he was not going to pull the blue slip. I never got 
that straight, whether pulling is good or pulling is bad, but 
the blue slip wasn't a problem.
    I am here really to address something that hasn't been 
talked about today, which is how some Hispanic or minority 
candidates are seen differently in this process than others. I 
am a Republican. A long time ago, 30 years ago, I was a member 
of the Republican State Central Committee, so I have done my 
time in the pits.
    Some people say that I am conservative. Some of my pals who 
think that way since I got on the superior court don't really 
see me as that conservative anymore, and from time to time I 
have strayed off the reservation and supported Willie Brown and 
John Burton. On second thought, maybe in San Francisco they are 
conservatives.
    I don't think that racial and ethnic make-up kept me off 
the bench, nor do I think that is happening to the Clinton 
appointees or to the Bush appointees. But I am suspicious of 
how certain minority candidates who are not liberals 
politically are treated, and it motivated me to find out a 
little bit about why I didn't get a hearing.
    Unlike anybody else I have heard today, I actually made a 
Freedom of Information Act request and got my FBI file, and I 
went through it and it was very interesting. I wondered if 
there were some hard feelings left over because of my 1990 
campaign. In my 1990 campaign, I had been run against by a 
candidate who described herself as liberal, progressive, and 
lesbian. I wondered if there were some hard feelings left over 
from that and that is why I tried to get my FBI file.
    I also got some letters, copies of which I have here, in 
case you are interested, from gay and lesbian judges in San 
Francisco backing me to this committee. But what I found was 
that some hearsay statements--and I won't go into the subject 
matter--some hearsay statements that had been relayed to the 
committee in August of 1991 were not followed up on and asked 
to be investigated until September of 1992, 13 months later. 
Once they were investigated, the accusers recanted. But by that 
time, it was September 14, 1992, and there were no more 
hearings to be had.
    I can't help but be suspicious that because I was a 
Republican and not allied with liberal interest groups that I 
was dealt with a little bit differently, like perhaps Justice 
Thomas and Mr. Estrada are being dealt with now. The delay in 
that case was tantamount to a denial.
    I am not here to get the hearing I didn't get 10 years ago. 
Life moves on. As somebody said, there is life after a failed 
Federal appointment. But I am here to ask you respectfully to 
leave the politics of the nomination process to President Bush, 
President Clinton, or President Bush, or whoever is going to be 
our President from now on, because in committee, and because of 
the staff situation that we have, very busy, decisions are made 
and the decisions are made by delay and they are made in back-
room deals and behind the backs of the persons affected, and 
with that no opportunity to come forward.
    All I wanted when I was interviewed the second time by the 
FBI was that they call the people who had said whatever they 
had said against me and have them come here and let me examine 
them. When they were examined, they said, well, we got it 
wrong, it wasn't what we thought, and good-bye. But by that 
time, it was too late.
    I have no hard feelings toward the Democratic leadership. I 
have a fine family. I have got four strapping sons, and here 
allow me a commercial. My oldest one won a silver medal for the 
United States in the 2000 Olympic Games in the men's pairs. He 
did a lot better than his dad.
    Chairman Schumer. Congratulations. That is great.
    Judge Bea. Well, I will accept that all day. I am having a 
wonderful time as a superior court judge in San Francisco--
great attorneys and good cases.
    I thank you very much for giving me this opportunity to put 
in my two cents' worth, even though I haven't used up all the 
time. If you have any questions, I will be glad to answer them.
    [The prepared statement of Judge Bea follows:]

       Statement of Carlos Bea, Judge, Clifornia Superior Court, 
                       San Francisco, California

    My name is Carlos Bea; I am a California Superior Court Judge 
sitting in San Francisco.
    As you can tell from my name, I am Hispanic. I was born a Cuban 
citizen, went to school in Havana and came to live in this country when 
still a child. Neither my family nor I ever had anything to do with the 
Cuban government, present or past, except that I once played on the 
Cuban Olympic basketball team, in the Helsinki Games.
    I was one of the 54 Bush I nominees whose nomination expired due to 
lack of Senate action. I was nominated by President Bush in November, 
1991 and received New Judges' training. in January 1992. I never got a 
hearing date, and it was not for lack of trying. Senator Seymour tried 
very hard to get me a hearing. Senator Alan Cranston told me that he 
would not pull the Blue Slip on my nomination. Other Appointees, 
nominated after I was, did receive hearings that Spring and Summer of 
1992.
    I would like to address the race or ethnic issue which inevitably 
comes up at these hearings.
    I am a Hispanic, a Republican--and former member of the State 
Central Committee--and a naturalized American. I think it is fair to 
State that my political views are generally Conservative, although from 
time to time I stray off the reservation and support candidates not 
thought to be Conservative--such as Willie Brown and John Burton. Well, 
I know what you are thinking: maybe in San Francisco they are thought 
to be Conservative.
    I do not think the 1992 Senate held up action on my nomination 
because of my ethnic background. Nor do I think any Clinton nominations 
were held up on that account.
    But I can't help but be suspicious of how Conservative minority 
candidates find their nominations vigorously contested: It happened to 
Clarence Thomas, Gerry Reynolds and Miguel Estrada.
    I think it happened to me. As I say, I was nominated by Pres. Bush 
in November, 1991. Fall entered Winter, no hearings were scheduled for 
my nomination. Winter into Spring no hearings. Spring into Summer--and 
I became suspicious that someone had said something derogatory about me 
that I didn't know about. I wondered what it could be and speculated 
that it had to do with the 1990 election campaign.
    After my appointment to the Superior Court by Gov. Deukmejian in 
1990, I had been challenged in the confirmation election by a female 
attorney who described herself in the campaign as a liberal-progressive 
Lesbian. I had won that San Francisco-wide election 59 percent-41 
percent. Just in case some hard feelings remained from the election, I 
asked and received letters of support from Gay and Lesbian judges on 
the San Francisco Superior Court. They were sent to this Committee.
    What I didn't know, and what I found out years later when I got my 
FBI file through the Freedom of Information Act, was that in August 
1991 BEFORE my nomination, some totally hearsay derogatory statements 
had been made about my campaign and about me. The Committee did not 
launch a followup investigation of those charges until September, 1992, 
over 13 months after the information was in the investigatory files. 
The follow-up investigation resulted in the accuser withdrawing the 
remarks and any opposition to my nomination. But by that time it was 
too late. No further hearings were scheduled.
    The whole purpose of hearings is to air out spurious charges. 
Committee and committee staff can, and in this case did, avoid a 
clearing of a person's name by inaction. I doubt it would have happened 
had I not had conservative political views.
    There are organizations--some would call them pressure groups--that 
advocate ``Diversity'' in everything except political views for 
minority candidates. One is ``Diverse'' if an ethnic and Liberal. One 
is not a real member of a minority group if one is politically 
Conservative.
    There have been Press reports that confirm this result: Professor 
Lawrence Tribe, a member in good standing of the Liberal view, has been 
quoted as saying that a Hispanic nominee to the Supreme Court of the 
United States might have to be defeated if he or she were conservative.
    This August body does itself and the Nation a great disservice when 
it adopts a political litmus test to judicial nominees. First, the 
politics held before reaching the Bench don't always play out in 
decisions. Look at Chief Justice Earl Warren, on the one hand; Justice 
Byron White, on the other.
    But more importantly, the independence of the Judiciary as a co-
equal branch of Government is imperiled. The Senate ought to pause and 
think what is the effect on the institution of the Judiciary when it is 
politicized.
    The Judiciary has no arms with which to defend itself against such 
politicization. Much less do nominees before they become Judges.
    Last, I hope no one has got the impression that anything I have 
said here is a result of sour feelings toward the Democratic leadership 
of the Senate. There is life after a failed Federal nomination.
    First, I have been blessed with a wonderful wife and family of four 
boys--which I can't mention without pointing out that our boy Sebastian 
won a Silver Medal in the Mens' Pair for the United States in the 2000 
Olympic Games.
    Second, I have greatly enjoyed. my service in the Superior Court, 
with very interesting cases presented by superb counsel. And, time 
heals all wounds--and perhaps, vice versa.
    Thank you for giving me the opportunity to address you. I will take 
any questions you or your counsel might have for me.

    Chairman Schumer. Thank you, Judge Bea, and we very much 
appreciate your coming all the way across country and 
congratulations on your son. What was he in?
    Judge Bea. The men's pair, the coxless men's pair, rowing. 
He and Ted Murphy from Dartmouth College were the two----
    Chairman Schumer. Excellent, so it was a bi-coastal winning 
team.
    Judge Bea. Right. They are warming up to go again in 2004, 
God willing.
    Chairman Schumer. Great. Well, maybe he will even come to 
the 2012 Olympics, which we hope will be in New York City.
    Judge Bea. Well, we hope it is going to be in San 
Francisco.
    Chairman Schumer. Yes, that is right; you are one of the 
competing cities.
    Mr. Gray. We hope it is going to be here.
    Chairman Schumer. Well, let's just hope it is in America. 
Well, thank you. Let me ask a couple of questions of Mr. Gray, 
and then I have one of Mr. Bea.
    Mr. Gray, I remember you came before us, and you are an 
eloquent and extremely intelligent witness, and I think you 
came in 1999 and talked about how ideology should not be part 
of the process. Your basic view was just what Judge Bea said as 
well; he sort of said it: leave the politics to the President. 
You might say don't leave the politics to anybody, but that 
ideology shouldn't be part.
    Is that right?
    Mr. Gray. That is correct, yes, sir.
    Chairman Schumer. Here is what I would like to ask you, 
because this is how some of us feel that when we bring up these 
things, they say leave out ideology, and I am sure you will be 
able to reconcile this.
    You were part of a group. In May of 1997, you and some 
others of like political mind, conservatives, created the 
Project on the Judiciary. As I understand it, the purpose there 
was to investigate the judicial philosophy of nominees to the 
Federal bench for signs of what the Project called 
``activism.''
    Maybe it is a coincidence that the Project only existed 
during the Clinton administration, 1997 to 2000. You were on 
the board, and William Bennett, Ed Meese, Dick Thornburgh. 
Previous Attorney General Thornburgh called the Project ``a 
counterpoise to the American Bar Association.'' Then-Chairman 
Hatch had said the Judiciary Committee shouldn't take into 
account the Bar.
    Now, I wasn't aware of it until recently, but it seems the 
Project on the Judiciary was sponsored by a group called the 
Ethics and Public Policy Center, which was established to 
``reinforce the bond between the Judeo-Christian moral 
tradition and the public debate over domestic and foreign 
policy issues.'' Yet, as I said, they didn't evaluate President 
Bush's nominees.
    Now, I have no objection to that, but it does seem to me 
that that group was evaluating nominees on the basis not of the 
excellence or lack thereof of their legal qualifications--all 
the nominees you mentioned would meet my standard of excellence 
that way--but rather to look at views and ideology.
    So just answer for me two questions. That seems to be the 
case. Why isn't it? And, second, why did this group stop after 
the presidency changed?
    Mr. Gray. Let me see if I can answer that in two ways. 
First, I am not sure it lasted even very long after it started. 
Maybe in Republican circles, as opposed to Democratic, when you 
get into these issues it is not easy to find money the way some 
of the liberal groups seem to be able to do.
    But the purpose was not to influence directly the 
nomination process, but rather to tee up generally the 
question--using potential judges as a way of putting some flesh 
on the bones, raising a flag about judicial activism. It wasn't 
designed to deal with a specific set of nominees. It was 
designed rather to deal with the bigger question of judicial 
activism.
    This is, of course, a question of judicial philosophy: what 
is the role of a judge? Should it be to legislate or to 
interpret the law as passed by the legislature. That was the 
focus of this group.
    Chairman Schumer. So you didn't evaluate any nominees?
    Mr. Gray. I don't recall getting involved directly in the 
nomination process and being part of the nomination fights over 
any of the nominees that came through during that period. I was 
not involved, certainly.
    Chairman Schumer. But it just seems to me if the group that 
you worked for believed that it was important to ``reinforce 
the bonds between the Judeo-Christian moral tradition and the 
public debate over domestic and foreign policy issues,'' again 
that is fine with me, but----
    Mr. Gray. Well, that is a broad description of the----
    Chairman Schumer. That is sort of ideology, ``public debate 
over domestic and foreign policy issues.'' That is not looking 
at what law school the judge went to, what the temperament of 
the potential judge was, how good they are in court. It is 
looking at their views on issues.
    Mr. Gray. But, Senator Schumer, I think you are mixing two 
things.
    Chairman Schumer. I like a nice, robust debate, so don't 
hold back.
    Mr. Gray. This effort was housed in this group called--I 
can't remember the name of it exactly. You are taking what was 
the general charter of the Ethics and Public Policy Center and 
reading that into this Judiciary Project, which I don't think 
is fair. I don't think the Judiciary Project was worrying about 
foreign policy or the Judeo-Christian ethic. I think they were 
worried about, as I said, the question of what is judicial 
activism and when does a judge exceed his or her role to 
interpret the law and instead fall over into making law. That 
was the focus of that effort. It had nothing to do with foreign 
policy.
    Chairman Schumer. Why wouldn't it continue, then? I have 
said this repeatedly: Judge way off the mainstream, far left, 
far right, like to make law. I have seen in New York City a lot 
of judges to the far left just love to sort of prescribe what 
they want. It doesn't matter how much it costs the city or the 
State, or whatever, and I think that is a bad way, in general, 
to make policy. It is a little bit anti-democratic.
    But why would it stop, if that was its view, the minute the 
presidency changed hands?
    Mr. Gray. That is a good question. I don't know that it 
continued up to the end of the--maybe it did; I just don't 
recall. But by and large--and this is where I think the parties 
do differ--Republicans don't tend to nominate judges who have 
an expansive view of their role.
    Every President that I have watched on the Republican side, 
and certainly the one that I served, campaigned on the 
principle that he would look for judges who would interpret and 
not make law. I think President Bush 43 has said virtually the 
same thing as his father, which was very close to what 
President Reagan campaigned on. Judicial activism is something 
I think is legitimate fair game; political ideology, no.
    Chairman Schumer. So you could be a judicial activist on 
the right as well?
    Mr. Gray. Well, I suppose you could.
    Chairman Schumer. You don't think Justice Scalia is an 
activist in terms of changing 30, 40, 50 years of law?
    Mr. Gray. I think he is stuck with precedent the way most 
judges are.
    Chairman Schumer. I think he is less stuck with it than 
many others.
    Mr. Gray. Well, I suppose you could debate that, but I 
think he respects precedent as much as any.
    Chairman Schumer. Let me continue here. One of the main 
articles of the Project on the Judiciary--this was the group 
you were part of, not the larger group--was an op ed called 
``In 2000 Supreme Court Is at Stake Too,'' and this was 
published in the Wall Street Journal. It discussed the close 
decisions of the Supreme Court in cases involving federalism, 
anti-discrimination law, prayer in the public schools, and 
abortion--some of the questions that I have tried to say are 
legitimate for us to ask judges about here. The publication of 
the Project on the Judiciary noted that many of the decisions 
in these areas came down to one vote and that is why the 
presidential election of 2000 was so important.
    You also told newspaper reporters that ``For the Supreme 
Court, this is the most significant election in my lifetime.'' 
The Project on the Judiciary elaborated on that point. Here is 
what they said: ``A liberal victory in 2000 would give the 
President the opportunity to replace the conservative Chief 
Justice and Justice O'Connor with liberal activists. That would 
give the current four-Justice minority a six-to-three majority 
on the Court. A conservative presidential victory, in contrast, 
would give the President an opportunity to replace Justice 
Stevens with a conservative jurist and increase the 
conservative majority.''
    Now, I am not objecting to someone having those views. In 
fact, that is just what I am saying. But it seems to me that 
somebody who comes before us and says ideology shouldn't matter 
and espouses these views--they seem to contradict one another, 
and you can cloak it in the words ``judicial activism,'' but 
that is not even what they are saying here. They are saying 
``conservative,'' which is a distinct political philosophy.
    Mr. Gray. Well, as I said in my testimony----
    Chairman Schumer. I will let you finish. I apologize, but 
it is part of the warp and woof of what we do.
    Mr. Gray. I agree with you it is part of what we do, but my 
point is that--and we did this; I testified just minutes ago 
that some of the nominees, many of the nominees, if not most of 
the nominees that President Bush 41 nominated would probably 
not pass muster under the litmus test that you are now imposing 
in this committee. But they went through, and I am saying what 
we are seeing now is a big change.
    Chairman Schumer. What is the litmus test you are referring 
to?
    Mr. Gray. Well, you are saying that, in your view or in the 
view of the committee, some of these nominees--and I guess you 
include Roberts and Estrada--are too far to the right. All I am 
saying is we nominated Roberts ourselves and we didn't get him 
because he was a last-year nominee, but I believe that that is 
what the President is entitled to do.
    That is what President Clinton was entitled to do and 
largely did. He got most of his nominees through. He had fewer 
left on the starting blocks than President Bush 41 did, as has 
been amply demonstrated, I think, this morning and at earlier 
hearings before this committee.
    That is what a President is elected to do, and I don't 
believe that the Senate Judiciary Committee, in whoever's hands 
it is, Republican or Democrat, should say, well, we think these 
nominees are too conservative.
    Chairman Schumer. So you are saying the President should 
allow ideology to enter into his nominations, which clearly 
happens. If you look at Democratic Presidents, the ideology and 
judicial philosophy is different than the Republican. But the 
Senate, in its advise and consent role, should not be allowed 
to take this into account. How can you reconcile that?
    Mr. Gray. I frankly believe that the full Senate will take 
into account what the full Senate will take into account, and I 
don't think that anyone can control what the full Senate does. 
My point is more limited that I don't believe the Judiciary 
Committee ought to screen out, based on its view.
    With all due respect, Senator Schumer, you represent New 
York. It is a State with definable characteristics.
    Chairman Schumer. Let's hope.
    Mr. Gray. But those characteristics don't necessarily line 
up with the characteristics of people who come from Georgia or 
come from Alabama or come from Texas or even Oregon or 
Washington State. So, therefore, that is why the system is set 
up that the President nominates.
    The President of one party is very unlikely to make many 
nominations of individuals of the other party. That is to be 
expected. That is not to say that it doesn't happen. It does 
happen, but it is not likely to happen, and the President got 
elected.
    Now, there is an undercurrent--and this is perhaps more 
than what you asked, but there is an undercurrent of, well, 
there was a very close election and therefore, to use perhaps 
your words, he didn't have a mandate. But I don't know that you 
can calibrate it that way. I don't know that you can say, well, 
because there was a recount procedure in Florida, therefore the 
Senate Judiciary Committee has the right to try to balance the 
ideology, as it sees it, of the bench. I think it is up to the 
President and if the full Senate wants to reject nominees, it 
certainly will, regardless of what label is put on any nominee 
by any side.
    Chairman Schumer. Well, I respect your view. I just would 
close, and then I will go to my colleague, Senator Sessions, by 
saying I think the view you have enunciated, which is it is 
okay for Presidents to nominate using ideology as part of the 
criteria--and now you are saying the full Senate can, but the 
Judiciary Committee can't, and that is a little different.
    Mr. Gray. Let me just clarify. You are saying that the 
President is using ideology. I am saying the President can 
nominate--and with the kind of ratings that they are getting 
from the ABA, ``well qualified'' in most cases--that the 
President is entitled to nominate these highly qualified 
people.
    You may label them as ideological. I doubt if President 
Bush would label them as ideological. You may, but that is the 
President's choice. All I am saying is yes, and I don't think 
the Senate should reject, but I certainly don't believe the 
Senate Judiciary Committee should reject, and I don't believe 
the full Senate would.
    Chairman Schumer. Thank you. I thank both witnesses, and 
again congratulations on your son, Mr. Bea.
    Senator Sessions.
    Senator Sessions. Judge Bea, I am sorry that the system did 
not work well for you. I was just recalling when I came up to 
testify at my little fiasco, and the day before I testified I 
read in the newspaper that two Department of Justice 
officials--and I was a member of the Department of Justice--had 
alleged that I had blocked a civil rights investigation in 
Conecuh County. So they asked me about it. I hardly had time to 
prepare and I couldn't believe anybody could be in error about 
that. I mean, surely these people wouldn't say that if 
something hadn't been the basis of it.
    So I said I don't know what that could be. I don't think I 
have done that. I mumbled around there pretty inartfully and 
called back home to find out what was going on, and it later 
turned out, after the news had been dramatic that I had blocked 
this civil rights investigation, that the two career attorneys 
in the Civil Rights Division were in error, that it was a 
different county, and the former Democratic U.S. attorney, not 
me, had blocked this investigation. They recanted sometime 
after the story was all out there.
    So I do think Senator Schumer shares our concern about 
that. He thinks we ought to be better about giving nominees a 
fair shake, and I do believe he is sincere about that.
    Judge Bea. You had at least the pleasure of finding out 
what they were saying about you in time to do something about 
it. I had to scratch my head and say why am I not getting a 
hearing from fall to winter, from winter to spring, from spring 
to summer. I never found out until the Freedom of Information 
Act--God bless the Freedom of Information Act--came through and 
showed me.
    Then for further rancor, it turns out that on further 
investigation the people who were accusing me of these vast 
misdeeds said, well, we may have gotten it wrong and we think 
he would be okay and we withdraw our objection. But that came 
so late, and so then when they finally came to interview me the 
second time and I had some newspaper articles saying my 
nomination had died--and they came to interview me again and I 
remember talking to the FBI people and saying is this a morbid 
joke? I mean, who could have thought this one up? This is 
really rubbing salt in wounds to ask me now. So, bless your 
lucky stars, you got your day in court. I didn't.
    Senator Sessions. Well, let's mention that.
    Chairman Schumer. He is not so happy with his day in court.
    Senator Sessions. Well, all in all, this is a fun place to 
be. I am honored to be on this side of the table. All in all, 
it is better to be on this side than that side.
    But Senator Schumer raises a point that I think I had in my 
mind, and I will ask you if you thought it so with you, that a 
lot of times people who make these statements, and these 
attorneys in the Civil Rights Division who said later they were 
mistaken and also said they felt betrayed that their comments 
had been made public--so my question is if you are at liberty 
to tell in confidence the FBI or anyone in the process 
something bad about a nominee and the nominee not know who said 
it or where it came from, it could encourage people who would 
just like to see your nomination fail to come forward with 
false information, couldn't it?
    Judge Bea. Well, it could, and I am very conscious of the 
necessity to give confidentiality in order to get people to 
speak honestly. I am all for that. Don't get me wrong, but what 
I would suggest to staff and to the Senators is if something 
comes in that is bad about the nominee, the appointee, confront 
him right away.
    You don't have to tell him who it is, but confront him 
right away and tell him this has come up and get the details so 
the man or woman can defend themselves. Don't just let it sit 
there on the back burner and kill the process. That is what I 
am here to say. Give a shake, maybe not the fairest shake, but 
at least give a shake.
    Senator Sessions. Well, thank you for sharing that. We deal 
with a lot of nominations. We ought to reach the highest 
possible level of fairness, and I think for the most part the 
system does, with the FBI and the White House and the Senate 
reviews. Local Senators usually take the matter seriously, so 
it is important that we do that.
    Mr. Gray, a lot of the nominees that did not make it 
through the Clinton years was because they had an objection 
from their home State Senator, the senatorial courtesy, the 
blue slip policy. That is a fact of life historic here.
    Could you share with us how that works and how a wise White 
House can work within that structure from your perspective?
    Mr. Gray. Well, the tradition, as I understand it, going 
back, is it is pretty important to have the assent of the home 
State Senators for appellate nominees. Now, if you look at it 
stepping back, there is a difference in the way home State 
prerogatives are treated between a district court nominee and 
an appellate nominee.
    Senator Sessions. Well, President Reagan, for example, took 
the view that it was his nomination and he did not feel bound 
by the local State Senator. Isn't that correct?
    Mr. Gray. That is correct.
    Senator Sessions. With respect to circuit judges?
    Mr. Gray. Appellate judges. Our view was probably not quite 
the same as that. We tried to get, and I think did in most 
cases get concurrence from the home State Senators, even though 
the individuals would not have been someone that they 
themselves would have proposed. Now, that seems like kind of 
being on both sides of it, but they could pretty well call the 
shots on the district nominees. We wouldn't let them have so 
much leeway on the appellate. But at the same time, we didn't 
want their opposition because that spelled trouble, and in most 
cases we did not have their opposition.
    How do you deal with that? Well, you get on top of the 
curve as fast as you can and you work very, very hard to 
persuade the home State delegation that your nominee, which may 
be the same as theirs but not always is, is acceptable. It 
takes a lot of persuasion and a lot of work. I believe that 
President Clinton fell down on the job in that regard by not, 
in advance of his nominations, getting the political spade work 
done that would have saved him a lot of trouble.
    Senator Sessions. And you have to watch who you nominate if 
you expect support.
    Mr. Gray. Well, of course.
    Senator Sessions. For example, we had two in this previous 
panel, fine people who had been very active politically, had 
served in the Department of Justice, but neither one of them 
had ever tried a lawsuit, good people. In the last days of the 
Clinton administration, he tried to run those through and they 
didn't make it.
    I mean, if you were advising President Bush in the latter 
days of his administration, if you put up that kind of nominee, 
you would probably tell him, wouldn't you, that you are liable 
to run into some difficulties with these nominees?
    Mr. Gray. I think you are liable to run into trouble and 
you are not going to get the kind of ``well qualified'' top 
rating from the ABA for those kinds of nominees and they are 
risky. So there are two problems here, which may be what you 
are getting at.
    One is nominating someone who has the active opposition of 
the home State delegation. That is a very risky proposition. 
Nominating someone who doesn't have the best possible 
credentials in the last year is asking for a little trouble, 
too. That is a risky business, and both of those factors 
operated, I believe, with respect to the whole panel that was 
here this morning. Notwithstanding the fact they are great 
people, they were all risky nominees.
    Senator Sessions. I remember in the last year of President 
Bush's administration he chose to nominate the chief of the 
appellate division of the Alabama Attorney General's office, a 
Democratic person, realizing that he needed a Harvard graduate, 
highly capable. He realized he needed a qualified nominee that 
would have broad support if he expected to get him through in 
the last months of that administration and he barely did. I 
think that is the reality of life.
    Let me ask you about this question of ideology and 
philosophy. Lloyd Cutler, I know, has worked on these issues 
kind of like you have from the White House side over the years. 
He rejected the idea of ideology being a factor, saying it 
would politicize the courts.
    Can you distinguish between political ideology and what 
that means in the confirmation process as opposed to a person's 
judicial philosophy?
    Mr. Gray. I will try, yes, sir. Political ideology to me 
means a person's political views as expressed in any number of 
fora. That person might have been, and often has been in the 
past a Senator who has been nominated to the Supreme Court. 
That person has a political ideology. That is what I think 
Lloyd and I--same law firm, different philosophies, different 
ideologies for sure--both believe is really off limits. That is 
not something that should be used to exclude a presidential 
nominee.
    Now, judicial philosophy within the confines of one's views 
about the courts and the role of the courts is I think 
something that is more legitimately the subject of your 
inquiry; that is, is the nominee someone who is going to 
legislate from the bench. I will oversimplify it by saying 
that.
    Now, you can say that is an aspect of political ideology. I 
will grant that. Yes, you could say that, but I believe that 
judges should stick to the job of judging and should not be 
legislating. I clerked for the Chief Justice, as the chairman 
pointed out, and we always used to say when we had time alone 
with him, which was every Saturday for lunch--he would take us 
to lunch--we would periodically say what a difficult job Brown 
v. Board of Education must have been to decide.
    He said, you know, that is not the decision I am proudest 
of. Obviously, it had to be decided that way, but that was 
really a job for a legislature. Had we had Reynolds v. Sims and 
Baker v. Carr, one man, one vote, fully in place, I am not sure 
we would have had to decide that case. Having been stuck with 
it, we had to decide it the way we had to decide it. But, 
ideally, it wouldn't be for us to decide.
    Here was a man who is regarded as a liberal icon who 
understood, I think, the limits of the role of the judiciary, 
and that is what I talk about when I mention judicial 
philosophy.
    Senator Sessions. Well, you would not say that a person is 
a judicial activist just because in serving on a court they 
conclude that an act of the U.S. Congress violates the 
Constitution of the United States, would you?
    Mr. Gray. No. That is, since John Marshall anyway, probably 
the central job of a Supreme Court nominee. But, luckily, that 
is a job for Supreme Court nominees. It is not generally the 
job of district and appellate judges, although they can and 
they do, but the final say is the Supreme Court, which makes 
the Supreme Court a fairly high-stakes game, of course.
    But I think exercising the right of constitutional judicial 
review is not an act of judicial activism. The kind of judicial 
activism I think of is when a district court judge takes over a 
school system and starts to run it or takes over an industry 
like the telecommunications industry and tries to run it over 
an extended period of time.
    You might be in a situation where in an emergency you have 
to do something temporarily, but to view it as a long-term 
exercise, I think, is the kind of judicial activism that I am 
talking about.
    Senator Sessions. We certainly have court systems, prison 
systems, mental health systems, and school systems all over 
America still being run today by Federal judges, some of them 
10, 15, 20 years ongoing. I am not sure that is democracy. A 
Federal judge is not elected. They are appointed for life. They 
are unaccountable to the public, and so if they are going to 
run a political institution, at some point we need somebody 
accountable to the public, it seems to me. I do think there 
have been abuses there.
    I just strongly believe that a disciplined, responsible, 
non-activist judge can on occasion conclude that the Commerce 
Clause is a part of the U.S. Constitution, and that on some 
occasions the U.S. Congress just might pass a law that too much 
encroaches on the limitations imposed by commerce, or the 
limitations on Federal action limited by commerce, and I don't 
think that is activist.
    Now, Senator Schumer views some of those rulings that have 
cut back on some of the law as activist. I just don't believe 
that is activist. I would point out that a number of the 
conservatives voted on this rather surprising recent Supreme 
Court decision on child pornography, the virtual computerized 
pornography. Some of the conservatives voted on that. Justice 
Scalia voted, amazingly to me, that the act of burning a flag 
is speech, with the liberals, which I don't agree with.
    I do think that the right to take your money and buy a 
television ad in the last 60 days of an election is speech, 
big-time speech, but I don't think the act of burning a flag is 
speech. We all have little disagreements. I just believe that 
if we aren't careful and respect the judges--and the fact that 
one of the witnesses we just had on the previous panel was 
counsel to the Democratic National Committee didn't qualify 
him. He never tried a case. That didn't disqualify him, but in 
the last days of an administration with little other 
compensating basis to justify his nomination, it faltered. I 
think that is probably the way the system works.
    Mr. Chairman, I hope that you and the Democratic leadership 
will reconsider some of the changes in the ground rules that 
you have attempted to move forward here that make the 
confirmation of judges much more difficult. I think we should 
not do that. In the long run, we will be sorry about it.
    What we need to call on judges to do is to go to work 
everyday and to enforce the law as written. A restrained, 
responsible judge is not a threat to our liberties. The judge 
that is the threat is the one that is willing to reinterpret 
the meaning of words and to impose their political views in a 
case when they are not authorized to do so.
    Chairman Schumer. Well, thank you. I thank Senator 
Sessions. We disagree, but he always puts it well and like a 
gentleman, politely, strongly and well.
    I thank the witnesses for really putting up with us here. 
We apologize for that long gap, but your testimony was 
excellent and I will commend it to my colleagues.
    Senator Sessions. Mr. Chairman, I would offer for the 
record several statements--Senator Grassley; a letter from a 
nominee, and a couple of other items.
    Chairman Schumer. The record will be open for other 
statements from others of our colleagues, as well as for what 
Senator Sessions asked.
    Senator Leahy also has a statement for the record.
    With that, the hearing is adjourned.
    [Whereupon, at 1:38 p.m., the subcommittee was adjourned.]
    [Submissions for the record follow.]

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