[Congressional Record Volume 143, Number 36 (Wednesday, March 19, 1997)]
[Senate]
[Pages S2538-S2541]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          SETTING THE RECORD STRAIGHT ON JUDICIAL NOMINATIONS

  Mr. BIDEN. Madam President, I have not spoken on judges this year, 
but having worked on it for so many years with my friend from Utah, 
having either been the ranking member or chairman of that committee. 
But let me make one point.
  It is one thing to say that we are going to disagree on judges. We 
did that when we were in control. We did that. And we said that all the 
judges that have been nominated here by two successive Republican 
Presidents--we picked seven out of a total of over 500--we said we 
disagree with these judges. The most celebrated case was Judge Bork, 
and less celebrated cases were people who have gone beyond being 
judges. Some are Senators. But the bottom line was that we understand 
that.
  But what I do not understand is this notion and all of the talk about 
activist judges without any identification of who the activist judges 
are. It is one thing for the Republicans to say that we are not going 
to vote for or allow activist judges. We understand that. We are big 
folks. We understand baseball, hardball. We got that part. No problem.
  But what I do not understand is saying we are not going to allow 
activist judges and then not identifying who those activist judges are. 
This is kind of what is going on here, and no one wants to say it. But 
since I have the reputation of saying what no one wants to say, I am 
going to say it.
  Part of what is going on here is, and in the Republican caucus there 
are some who say, No. We want to change the rules. We want to make 
sure, of all the people nominated for the Federal bench, that the 
Republican Senators should be able to nominate half of them, or 40 
percent of them, or 30 percent of them. That is malarkey. That is flat-
out malarkey. That is blackmail. That has nothing to do with activist 
judges.
  I do not doubt the sincerity of my friend from Utah. We have worked 
together for 22 years. But here is my challenge. Any judge nominated by 
the President of the United States, if you have a problem with his or 
her activism, name it. Tell us what it is. Define it like we did. You 
disagreed. You disagreed with the definition. But we said straight up, 
``Bang. I do not want Bork for the following reasons.'' People 
understand that. But do not try to change 200 years of precedent and 
tell us that we are not letting judges up because we want the 
Republican Senator to be able to name the judge. Don't do that, or else 
do it and do it in the open. Let's have a little bit of legislating in 
the sunshine here. Do it flat in the open.
  I see my colleagues nodding and smiling. I am sort of breaching the 
unspoken rule here not to talk about what is really happening. But that 
is what is really happening. I will not name certain Senators. But I 
have had Senators come up to me and say, Joe, here is the deal. We will 
let the following judges through in my State if you agree to get the 
President to say that I get to name three of them. Now folks, that is a 
change of a deal. That is changing precedent. That isn't how it works. 
The President nominates. We dispose one way or another of that 
nomination. And the historical practice has been--and while I was 
chairman we never once did that--that never once that I am aware of did 
we ever say, ``By the way, we are not letting Judge A through unless 
you give me Judges B and C.''
  Now, let me set the record totally straight here. There are States 
where precedents were set years ago. The Republican and Democratic 
Senator, when it was a split delegation, have made a deal up front in 
the open. In New York, Senator Javits and Senator Moynihan said: Look. 
In the State of New York, the way we are going to do this is that 
whomever is the Senator representing the party of the President--I 
believe they broke it down to 60--for every two people that Senator 
gets to name, the Senator in the party other than the President gets to 
name one. OK, fine. Jacob Javits did not go to Pat Moynihan and demand 
that he was going to do that. Moynihan made the offer, as I understand 
it, to Jacob Javits. That is not a bad way to proceed.
  But now to come along and say, ``By the way, in the name of activist 
judges, we are not going to move judges'' is not what this is about.
  I might point out that all the talk last election that started off--
it all fizzled because it did not go anywhere--about how there is going 
to be an issue about activism on the courts, we pointed out that of all 
the judges that came up in Clinton's first term, almost all of them 
were voted unanimously out of this body by Democrats and Republicans, 
including the former majority leader. He only voted against three of 
all the nominees, then he argued, by the way, that Clinton nominated 
too many activist judges. And then it kind of fizzled when I held a 
little press conference, and said, ``By the way. You voted for all of 
them.'' It kind of made it hard to make this case that they were so 
activist.
  So look. Let me say that I will not take any more time, but I will 
come back to the floor with all of the numbers and the details. But 
here is the deal.
  If the Republican majority in the Senate says, ``Look, the following 
2, 5, 10, 12, 20 judges are activist for the following reasons, and we 
are against them,'' we understand that. We will fight it. If we 
disagree, we will fight it. But if they come along and say, ``We are 
just not letting these judges come up because really what is happening 
is they are coming to guys like me and saying, `Hey, I will make you a 
deal. You give me 50 percent of judges, and I will let these other 
judges go through.' '' Then that isn't part of the deal.
  Look, I have a message to the Court. I know the Court never reads the 
Congressional Record, and Justice Scalia said that we should not 
consider the Record for legislative history because everybody knows 
that all the Congressional Record is is what Senators' staff say and 
not what Senators know. He is wrong. But that is what he said. Maybe 
they don't read it. But I want to send a message.
  Madam President, when I was chairman of the committee and there was a 
Republican President named Reagan and a Republican President named 
Bush, the Judicial Conference on a monthly basis would write to me and 
say, ``Why aren't you passing more judges?'' They have been strangely 
silent about the vacancies that exist. Now, I agree that the 
administration has been slow in pulling the trigger here. They have not 
sent enough nominees up in a timely fashion. And I have been critical 
of them for the last 2 years, Madam President. But that is not the case 
now. All I am saying to you is, as they say in parts of my State, ``I 
smell a rat here.'' What I think is happening--and I hope I am wrong--
is that this is not about activism.
  This is about trying to keep the President of the United States of 
America from being able to appoint judges, particularly as it relates 
to the courts of appeals.
  Now, what is happening is what happened today. Merrick Garland was

[[Page S2539]]

around for years. Now, what is going to happen is they are going to say 
we reported out a circuit court of appeals judge. Aren't we doing 
something. The truth of the matter is the proof will be in the pudding 
several months from now when we find out whether or not we are really 
going to move on these judges.
  Let me point out one other thing. And I see my friend from Maryland 
in the Chamber, and I will yield particularly since I had not intended 
speaking at this moment.
  Mr. SARBANES. I want to ask the Senator a couple questions when he 
finishes his statement.
  Mr. BIDEN. The point I wish to make is this. When I was chairman of 
the committee and a Republican was President, we held, on average, a 
hearing for judges once every 2 weeks and had usually five judges, 
circuit court and district court, who we heard.
  Last year we essentially had one hearing every other month and we had 
to fight to get three to four on the agenda to be heard.
  Mr. SARBANES. Will the Senator yield for a question.
  Mr. BIDEN. I will be happy to.
  Mr. SARBANES. This is a chart that Senator Leahy, now the ranking 
member on the Judiciary Committee, used today in the course of the 
Merrick Garland debate which I think is enormously instructive. It is 
the number of judges confirmed during second Senate sessions in 
Presidential election years.
  Mr. BIDEN. I got it.
  Mr. SARBANES. Now, in 1996, with a Democratic President, President 
Clinton, and a Republican Senate, the Senate confirmed no judges for 
the court of appeals, none whatsoever, and 17 judges for the district 
court. Now, in 1992, the previous election year--that was when Mr. Bush 
was President----
  Mr. BIDEN. And I was chairman.
  Mr. SARBANES. And if I am not mistaken, the distinguished Senator 
from Delaware was the very able chairman of the Judiciary Committee.
  Mr. BIDEN. I did not say ``able.'' I was chairman.
  Mr. SARBANES. I am suggesting the Senator is able. I am prepared to 
make that statement. We confirmed 11 court of appeals judges and 55--I 
repeat, 55--district judges in an election year. Now, that gives you 
some sense of how the Democratic majority in the Senate, led at the 
time by the able Judiciary Committee chairman, was dealing with this 
matter, essentially in a nonpolitical way.
  In 1988, when I think, again, the Senator from Delaware was still the 
chairman of the Committee----
  Mr. BIDEN. That is correct.
  Mr. SARBANES. With President Reagan, a Republican President--again, 
in an election year--we confirmed 7 court of appeals judges and 35 
district court judges. Actually, the 35 that we confirmed in that 
election year was better than the Republican Senate did for President 
Reagan in 1984 when they only confirmed 33 judges. In any event, 
clearly this performance in these years is in marked contrast to what 
happened in 1996 and what apparently is continuing now in 1997. Merrick 
Garland was the first judge approved this year.
  Mr. BIDEN. If I may respond to the Senator, obviously the facts are 
correct, but I think it worth elaborating a little bit more on the 
facts. I saw my very able colleague, the present chairman of the 
Judiciary Committee, on television the other day, and he was talking 
about the number of judges that were ``left hanging,'' who were not 
confirmed and sent back to the administration at the end of 1992, the 
Bush administration. And he cited an accurate number. But as my very 
distinguished friend, who is, as well, a scholar, knows, there is an 
old expression attributed to Benjamin Disraeli, who said there are 
three kinds of lies: lies, damn lies, and statistics.
  What my able friend from Utah did not mention is that just like 
President Carter--Carter's judges is a separate charge we can go back 
to, but just like President Clinton, President Bush did not get his 
nominees up here until the end of the process.
  In other words, they were late getting here. Notwithstanding the fact 
that he was late in getting his nominees up, the Senator may remember 
in the caucus over the objection of some Democrats who said the 
Republicans would never do this, I insisted we confirm judges up to the 
day we adjourned the Senate. During the last week the Senate was in 
that year, we confirmed seven judges. I could have easily just sneezed 
and they would not have been confirmed. And the fact is the reason why 
we did not confirm more is because we did not have time to hold the 
hearings and we were holding hearings on 20 or more a month.
  Mr. SARBANES. If the Senator will yield, I can recall the Senator was 
holding hearings right up into the fall of the election year and judges 
were being brought to the floor of the Senate and being confirmed. And 
he is absolutely correct; there were some----
  Mr. BIDEN. Republican judges.
  Mr. SARBANES. Yes, Republican judges. And there were some Members on 
the Democratic side who said, why are you doing this? We are about to 
have an election and the result may give us control of the White House. 
And the Senator from Delaware said, look, we ought not to have politics 
play a heavy hand in the judicial confirmation process.
  One of the worst things that is happening in the Senate is what 
amounts to a heavy politicizing of the judicial confirmation process 
that is taking place in this body, and that was reflected in the 
performance in 1996 as compared with the performance in 1992 when the 
Senator from Delaware did his very best to keep politics out of the 
process, to fill judicial posts and to let the judiciary function as an 
independent branch of our Government. What is happening here is 
extremely serious. And of course, the Senator, with his candor, came to 
the floor and sort of stripped away the veneer and laid out what is 
going on behind the scenes, which is a complete departure from past 
practices. When there were Republican Presidents, I did not play a role 
in whom the Presidents sent up to the Senate to be nominated and 
confirmed in the job----
  Mr. BIDEN. If the Senator will yield, I was chairman or ranking 
member of that committee for 14 years. My distinguished colleague from 
Delaware is Senator Roth, who is my close friend. Every single Federal 
judge in the last 24 years who has been appointed in the district of 
Delaware or the third circuit has been appointed by Senator Roth. I did 
not expect, did not ask, and not once was ever consulted about who he 
would appoint, and I supported every one that he sent up. Not one 
single time was I made aware of anything other than after the fact, 
which is OK. I am not complaining about that.
  Mr. SARBANES. That was the system.
  Mr. BIDEN. That was the system. Not one single time. And I was 
chairman of the committee.
  Now, I would point out one other thing to my friend. I want to have 
complete candor. If one considers taking judges based on their ideology 
and call that political, yes, we Democrats were political, as well. I 
am not complaining about that. I am not complaining about anybody who 
stands up and says I do not want Judge Smith, the President's nominee, 
because I think he will be bad on the court for the following reasons 
and comes to the floor and makes the case. I do not quarrel with that 
because I think that is the prerogative of the Senate and any Senator. 
What I am quarreling with is a different kind of politicizing, and that 
is drawing the conclusion that because I now control the Senate, I am 
not going to let the President of the United States have nominees 
whether or not I have an ideological problem with them.
  Mr. SARBANES. Will the Senator yield. It is worse than that. It is 
not whether you let the President have his nominees confirmed. You will 
not even let them be considered by the Senate for an up-or-down vote. 
That is the problem today. In other words, the other side will not let 
the process work so these nominees can come before the Senate for 
judgment. Some may come before the Senate for judgment and be rejected 
by the Senate. That is OK.

  Mr. BIDEN. Fair enough.
  Mr. SARBANES. But at least let the process work so the nominees have 
an opportunity and the judiciary has an opportunity to have these 
vacant positions filled so the court system does not begin to break 
down because of the failure to confirm new judges.
  Mr. BIDEN. If the Senator will yield, let me give an example of what 
you just said. I know you know, but it is important for the Record.

[[Page S2540]]

  I meet every year--I will not now because I am not the top Democrat 
on the committee. But every year for, I don't know, 14 or 15 years, I 
meet with what is called the Judicial Conference --a legislatively 
organized body where the Congress says the court can have such a 
function, where we look for recommendations.
  I might add, by the way, you may remember when there was a Republican 
President named Reagan, the Senator from Delaware introduced a bill to 
increase the number of Federal judgeships by 84. Why did I do that? I 
did that because the Federal court came to us, the Judicial Conference, 
and said, ``Here is our problem. We don't have enough judges to 
administer justice in a timely fashion in this country. And there is a 
backlog on all these criminal cases.''
  I must admit to the Senator, when they came to me with that request, 
I knew the problem I was going to have. I was going to go into a 
Democratic caucus and say, by the way, a Republican President, who is a 
fine man but the most ideological guy we had in a long time, who 
announced he was going to appoint only very conservative judges, I was 
now going to give him 84 more than he had.
  I realized that was not a politically wise thing for me to do. But, 
listening to the court, I did just that. My recollection is the Senator 
from Maryland stood with me and said, ``I don't like it. I admit, I am 
not crazy about 84 more judges being appointed by Ronald Reagan. But 
the court needs to be filled.''
  Now we have the strange happening, the courts come back to us and 
say--and they do this in a very scientific way--we not only need the 
vacancies filled, we need more judges than we have. They cite, as the 
Senator is very familiar with, they cite the backlog, they give the 
rationale that cases are being backed up. Guess what? The idea that we 
will even get a chance to discuss a judgeship bill, I predict to my 
friend from Maryland, on this floor is zero--zero. Not only that, to 
further make the point, this is the first time in the 24 years that I 
have been a Senator, in 24 years, the first time I have ever heard 
anybody come to the floor and say: You know, we should basically 
decommission judgeships.
  The ninth circuit is the busiest circuit in America, out in 
California. One of our colleagues, a very wonderful guy, a nice guy, 
says, ``I am not going to let any other judge be in the ninth 
circuit''--notwithstanding they have five vacancies, if I am not 
mistaken, and they are up to their ears in work. This started last year 
when I was in charge of the Democratic side. He said, ``I am not going 
to let anybody go through until the ninth circuit splits into two 
circuits.''
  I said, ``Why do you want it to split?''
  He said, ``The reason I want it to split is I don't like the fact 
that California judges are making decisions that affect my State.''
  The distinguished Senator from Idaho is shaking his head. He agrees. 
He is in that circuit. It is painful to point this out, but the reason 
why there is a Federal court is so there is not Illinois, Indiana, 
Idaho, California justice. There is one uniform interpretation of the 
Constitution. That is the reason we have a Federal circuit court of 
appeals.
  Now, this is quite unusual. We have--and I was not referring to the 
distinguished Senator from Idaho, who is on the floor, when I said, 
``there was a Senator.'' That is not to whom I am referring. But 
another one of our colleagues said he is not going to let anybody go 
through until there is a split, because he does not like the idea that 
decisions relating to his State are being made by judges who are not 
from his State or are not from States of similar size. That is, 
interestingly, an effectively rewrite of the Constitution of the United 
States of America. I do not think the Senator thought it in those 
terms, but that is literally what it is.

  Now I am being told, OK, unless we, in fact, split the circuit--and 
by the way, I am not opposed to splitting the circuit. We split the 
fifth circuit because when we got to the point where Florida grew so 
big--Florida and Mississippi and Alabama and Louisiana, they are all in 
the same circuit--but they got so big, because of population growth, we 
said--the court recommended, we agreed--that it should be split into 
two circuits. We understand that. I am not opposed to that. I am not 
arguing about that. But the idea that someone says, ``Until you do it 
my way, until you can assure me I am not going to be associated with 
that State of California, I am not going to let any vacancies be 
filled''----
  Mr. SARBANES. If the Senator will yield, in effect what is happening 
is the court system is being held hostage, so it is not able to 
function properly as a court system should. I submit that is an 
irresponsible tactic to use. As Members of the Congress, the first 
branch of Government, we have a responsibility to see that the court 
system can function in a proper fashion.
  The Senator from Delaware, when he was chairman of the committee, 
always measured up to that responsibility, I think often taking a lot 
of political heat for doing it. But he was out to make sure the system 
could function. He had Republican Presidents nominating judges. He 
processed their nominations. He brought them to the floor of the 
Senate. He gave the Senate a chance to vote on them up or down for 
those people to get confirmed. That process is breaking down.
  Mr. BIDEN. I voted for all of them but seven, I might add. There were 
only seven times that I voted against any of those nominees.
  Mr. SARBANES. That process, I repeat, is now breaking down.
  The other thing that is happening, as he says, instead of disagreeing 
with the qualifications of a nominee, the other side says, ``We don't 
really need the position.''
  Mr. BIDEN. That is right.
  Mr. SARBANES. And that is what we heard on Merrick Garland. In fact, 
when he first came up here, he was nominated for the 12th position on 
the D.C. circuit. They said, ``We don't need that position. We have 
nothing against Merrick. He is a wonderful fellow, of course. We just 
don't think we need that 12th position.'' Of course, that does a lot 
for Merrick Garland. He's sitting, waiting to join the court. Then 
someone already on the court took senior status, and then they had two 
vacant positions, the 11th and 12th. Merrick Garland is nominated. He's 
now up for the 11th position; not the 12th position, the 11th position. 
The majority is right back here on the floor and it says, ``We don't 
need this position.'' This is the 11th position. They never made that 
argument last year when he was going for the 12th position. Then they 
said we need the 11th, we don't need the 12th. Now they are back, some, 
today--fortunately, they did not prevail--saying we do not need either 
the 11th or the 12th position.
  Mr. BIDEN. If the Senator will yield on that point, it is probably 
going to get him in trouble, but I want to compliment the chairman of 
the committee. The chairman of the committee did not buy into that 
argument. The chairman of the committee took the position on this that 
we should act, and he had been pushing this for some time.
  Again, I see my distinguished friend, who now I work with in another 
capacity, as the minority--the euphemism we use is ranking member--of 
the Foreign Relations Committee. We have much less disagreement than we 
have on some issues relating to judges. But, with him here, I can 
remember that during the last days when the Senator from Delaware was 
trying to push through judges--on October 8, 1992, the last day of the 
session, with President Bush as President of the United States, the 
Senator from Delaware pushed through seven Republican judges--the last 
day.

  I will bet you that has not happened very often in this place with 
Democrats or Republicans: The last day, seven.
  The reason I mention that is one of my distinguished colleagues--we 
have very different views, but I like him a lot--walked up to me and he 
was from a State where there were two Republican Senators, and two of 
those judges were his. He walked up and shook my hand. This will not go 
in the Record--it will go in the Record, but his name won't, but my 
colleagues will know who he is. He shook my hand and said, ``Joe, 
you're a nice guy. I really appreciated it.'' He says, ``Of course, you 
know I would never do this for you.''
  I like him because he is straightforward and honest. He meant it, and 
that's why we get along so well. I am

[[Page S2541]]

not referring to the Senator from North Carolina. He said, ``I'd never 
do this for you.'' The point being, not that Biden is a good guy or 
Biden is a stupid guy, the point being that the court is in desperate 
trouble in a number of jurisdictions. In southern California and south 
Florida, and in a number of places where there are drug cases that are 
backed up, a number of places where there are significant civil case 
backlogs, a number of places where population growth is straining the 
court, they need these vacancies filled.
  I respectfully suggest that it is a rare--it is a rare--district 
court nominee by a Republican President or a Democratic President who, 
if you first believe they are honest and have integrity, have any 
reason to vote against them. I voted for Judge Bork, for example, on 
the circuit court, because Judge Bork I believed to be an honest and 
decent man, a brilliant constitutional scholar with whom I disagreed, 
but who stood there and had to, as a circuit court judge, swear to 
uphold the law of the land, which also meant follow Supreme Court 
decisions. A circuit court cannot overrule the Supreme Court.
  So any member who is nominated for the district or circuit court who, 
in fact, any Senator believes will be a person of their word and follow 
stare decisis, it does not matter to me what their ideology is, as long 
as they are in a position where they are in the general mainstream of 
American political life and they have not committed crimes of moral 
turpitude, and have not, in fact, acted in a way that would shed a 
negative light on the court.
  So what I want to say, and I will yield because I see my friend from 
South Carolina--North Carolina, I beg your pardon. I am used to dealing 
with our close friend in the Judiciary Committee who is from South 
Carolina. I seem to have the luck of getting Carolinians to deal with, 
and I enjoy them. I will yield the floor by saying, I will come back to 
the floor at an appropriate time in the near term, immediately when we 
get back from the recess, and I will, as they say, Madam President, 
fill in the blanks in terms of what the absolute detail and each of the 
numbers are, because I have tried to recall some of them off the top of 
my head, not having intended to speak to this issue when I walked 
across the floor earlier.
  Let it suffice to say at the moment, at least for me, that it is 
totally appropriate for any U.S. Senator to voice his or her opposition 
to any nominee for the Court, and they have a full right to do that. In 
my study of and teaching of constitutional law and separation of powers 
issues, there is nothing in the Constitution that sets the standard any 
Senator has to apply, whether they vote for or against a judge.
  But I also respectfully suggest that everyone who is nominated is 
entitled to have a shot, to have a hearing and to have a shot to be 
heard on the floor and have a vote on the floor.
  We had a tie vote in the committee, Madam President, on one of the 
Supreme Court nominees. I was urged by those who opposed him--and I 
opposed this particular nominee--to not report it to the floor. My 
reading of the Constitution, though, is the Judiciary Committee is not 
mentioned in the Constitution. The Judiciary Committee is not 
mentioned. The Senate is. We only in the Judiciary Committee have the 
right to give advice to the Senate, but it is the Senate that gives its 
advice and consent on judicial nominations.
  I sincerely hope, and I have urged the administration to confer with 
Republican Senators before they nominate anyone from that Senator's 
State. I think that is totally appropriate. I think it is appropriate, 
as well, that Republican Senators, with a Democratic President, have 
some input, which Democrats never had with the last two Republican 
Presidents. I think that is appropriate.
  But I do not think it is appropriate, if this is the case--and I do 
not know for certain, it just appears to be--if the real hangup here is 
wanting to reach an informal agreement that for every one person the 
President of the United States gets to nominate, the Republican Party 
will get to nominate someone, the Republican Party in the Senate. Or 
for every two persons that the President nominates, the Republicans get 
to nominate one.
  It is totally appropriate for Republicans to reject every single 
nominee if they want to. That is within their right. But it is not, I 
will respectfully request, Madam President, appropriate not to have 
hearings on them, not to bring them to the floor and not to allow a 
vote, and it is not appropriate to insist that we, the Senators--we, 
the Senators--get to tell the President who he must nominate if it is 
not in line with the last 200 years of tradition.

  Again, I did not intend speaking at all on this, other than the fact 
I walked through and it was brought up, and since I was in that other 
capacity for so long, I felt obliged to speak up.
  I see my friend from North Carolina is here. I do not know if he 
wishes to speak on judges or foreign policy matters, but whichever he 
wishes to speak on, I am sure it will be informative. I yield the 
floor.
  Mr. HELMS addressed the Chair.
  The PRESIDING OFFICER (Mr. Brownback). The Senator from North 
Carolina is recognized.
  Mr. HELMS. Mr. President, let me say that I always enjoy my friend, 
Senator Biden--all of it. You have to wait awhile sometimes, but the 
enjoyment is nonetheless sincere.

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