[Congressional Record Volume 143, Number 83 (Monday, June 16, 1997)]
[Senate]
[Pages S5653-S5655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I have spoken on the floor many, many times 
about the pace of the Senate confirming judicial nominees. The 
distinguished Presiding Officer, my friend, has had to do double duty 
because he has had to listen to me do it in the Judiciary Committee, 
too, on occasion. I commend his equanimity and patience in listening to 
my remarks.
  Mr. President, I urge all Senators, Republican and Democrat alike, to 
move forward on the confirmation of judicial nominees. This weekend, on 
one of the ubiquitous television talk shows, the distinguished majority 
leader said he intended to block action on all nominations except 
military nominees until President Clinton fills four seats on the 
Federal Election Commission. The distinguished majority leader, of 
course, has the right and power to control the calendar of the Senate. 
I have no question about that. But I hope he would reconsider this 
policy for all nominees, but especially for the Federal judiciary.
  The distinguished majority leader has a concern with the President on 
the FEC. I am not going to get in the middle of that issue. Both sides 
claim they are moving forward with nominees. I have to assume the 
majority leader of the U.S. Senate has ways of bringing pressure to 
bear on the President of the United States without having to cripple 
the Federal judiciary or to do things that might appear, whether 
intended or not, to diminish the independence of the Federal judiciary.
  For example, we have four noncontroversial nominees at the moment in 
the Federal circuit and district courts. They should not get delayed in 
this political squabble. They enjoy strong bipartisan support. They 
were unanimously reported to the full Senate by the Judiciary Committee 
with all Democrats and all Republicans on that committee voting for 
them. More importantly, they are desperately needed in the courts which 
they have been nominated.
  Let me give an example. Alan Gold has been nominated to be a U.S. 
district court judge for the southern district of Florida. Now, this is 
a noncontroversial nominee but it is also one desperately needed. He is 
an extremely well qualified nominee. The Judiciary Committee 
unanimously reported his nomination last month, and the Southern 
District Court of Florida desperately needs him to help manage its 
growing backlog of cases. This is in a district that has one of the 
fastest-growing populations in this country. In fact, during his 
confirmation hearing, the distinguished Republican Senator from 
Florida, Senator Mack, told the Judiciary Committee, ``This appointment 
comes at a critical time for south Florida. The Supreme Court's recent 
decision in Lenz versus Mathis has resulted in the early release of 
hundreds of violent criminals back on the streets and brought about a 
crisis of confidence in the safety of our neighborhood. This unsettling 
feeling made it especially critical for South Florida to have a full 
complement of the judges administering the laws to fight violent 
crime.''
  We first received Alan Gold's nomination in February of this year. 
The President nominated him for a vacancy on the district court for the 
southern district of Florida. This vacancy existed since shortly after 
the elections last year. He has the support of both Senator Graham and 
Senator Mack.
  He had a hearing on May 7. The Judiciary Committee reported his 
confirmation to the full Senate on May 22. This is the way the judicial 
confirmation process should work. The position had been open only a few 
months. The Senate was out at the time the vacancy occurred. Shortly 
after the elections, the President moved quickly with a nominee that 
had strong bipartisan support for his home State senators. The 
Judiciary Committee moved very quickly, and the nomination passed out 
unanimously. We know that there is a major need for a judge there. Alan 
Gold's nomination is now pending on the Senate calendar, awaiting 
action on the Senate floor. This process should not become entangled in 
partisan squabbling.

  Instead, we should look at the one branch of our Government that is 
supposed to be nonpartisan--the judiciary--and not allow the Federal 
judiciary to be caught up in partisan squabbling of Senators or with 
the White House. We should move this nomination through the Senate very 
quickly.
  Another example of a judicial nomination that we should move quickly 
is in the northern district of Georgia, where Thomas Thrash, Jr., has 
been nominated to be a U.S. district judge. We unanimously reported his 
nomination to the Senate last month, on May 22. But this is also a 
district--the northern district of Georgia--there in the eleventh 
circuit that desperately needs Thomas Thrash to help manage a growing 
backlog of cases.
  Now, we received his nomination in May 1996--over a year ago. He was 
accorded a hearing last Congress, on July 31, 1996. But his nomination 
got caught in the election year freeze, which said we will not move 
nominations after a certain time in a Presidential election year. The 
President nominated him on the first day of this Congress for the same 
vacancy. That vacancy has existed since March of 1996, for over a year. 
He had a confirmation hearing on May 7. He was supported by both 
Senator Cleland and Senator Coverdell, one Democrat and one Republican 
from Georgia, and was reported to the Senate by the Judiciary Committee 
2 weeks later. Now, this is not a case that should be held up because 
of a partisan squabble.
  Also pending on the calendar is Eric Clay to be a circuit judge for 
the sixth circuit, another noncontroversial, well-qualified nominee. 
The Judiciary Committee unanimously reported his nomination to the 
Senate on May 22 of this year. Now, the sixth circuit desperately needs 
help in managing a growing backlog of cases. They have three vacancies, 
two of which have been designated judicial emergencies by the Judicial 
Conference of the United States. I mention the judicial emergencies, 
Mr. President, because this is not a case of some mere debating point; 
this is the Federal judiciary of this country with emergencies, where 
they need judges, where we could confirm the judges, and, frankly, the 
U.S. Senate is not doing its job.
  We first received Eric Clay's nomination in March 1996. He was 
accorded a hearing on March 26, 1996. He was reported unanimously by 
the Judiciary Committee to the Senate on April 25, 1996. And now, more 
than a year later, we are still waiting for him to be confirmed. Now, 
Eric Clay has the strong support of both Senator Levin and Senator 
Abraham, one Republican and one Democrat. We ought to confirm this 
judge for the sixth circuit.
  We also have Arthur Gajarsa's nomination to be U.S. circuit judge for 
the Federal circuit on the calendar. We first received his nomination 
in April--not April 1997, but April 1996. His nomination was passed 
unanimously by the Judiciary Committee back in June of last year. Now 
he is back here again, passed unanimously again. He ought to be 
confirmed quickly.
  We also have the nomination of Margaret Morrow for the U.S. District 
Court for the Central District of California on the Senate calendar. 
She is another well-qualified nominee. Ms. Morrow is the first woman 
president of the California Bar Association and the Judiciary Committee 
unanimously approved her nomination last year, but

[[Page S5654]]

her confirmation got caught up in the election year stall on judicial 
confirmations. Just last week, the Judiciary Committee again approved 
her nomination. The Senate should quickly take action on the nomination 
of Margaret Morrow.
  We have confirmed less than one judge a month since the start of this 
session in January. We have almost 100 vacancies in the Federal 
judiciary. Many of them are in critical areas, where huge backlogs are 
occurring, where courts are saying that we are benefiting criminals 
because they can't be tried; we can't have speedy trials. Criminals get 
the benefit of this by not having judges to hear the cases. If you have 
a civil case, forget about a speedy trial.

  I just look at some of the headlines we have had recently seen, which 
are shown on this chart. One is by the Washington Post, by Sue Anne 
Pressley: ``Cases Pile Up as Judgeships Remain Vacant; Drug Crackdown, 
Immigration Inundate U.S. Courts in Texas.'' Apparently, you can be on 
the southern border of this country and have drug and immigration cases 
in major courts that can't be heard because you can't get enough judges 
there.
  Bruce Fein is one who has written primarily from a conservative 
viewpoint. His column: ``Judge Not.'' It speaks of the independent 
Federal judiciary. He says, ``The supreme jewel of our Constitution is 
a fiercely independent Federal judiciary, but congressional Republicans 
are attacking this gem.''
  We have a couple of editorials on the Chief Justice--one from the 
Washington Post and one from the New York Times--speaking of the alert 
from the Chief Justice: ``A Reminder From the Chief Justice.'' These 
are the cases where the Chief Justice of this country--another 
conservative Republican--has said, ``We have a crisis situation; let's 
move on it.''
  We have one entitled, ``The GOP Hold on Judgeships; Partisan Politics 
Have Ground Confirmations to a Halt.''
  Now, I say this, Mr. President--I make the same argument now as when 
we have had a Republican President and a Democratically controlled 
Senate. If there is one area where partisan politics should not be 
allowed, it is in the area of the Federal judiciary.
  One thing that sets our country apart from virtually all others is 
the independence of our Federal judiciary. Every country that in this 
century has moved toward democracy has sent observers to the United 
States of America to look at our Federal judiciary and they say, ``How 
do you have such an independent judiciary?'' Look what is happening in 
countries that are sometimes lurching into democracy. They say the one 
thing that holds them back, that allows crime to continue, that allows 
an economic system to break down, that allows graft and corruption to 
occur in each of those countries is because their judiciary cannot be 
truly independent. In our country, our Federal judiciary is truly 
independent.
  Now, each one of us, I would gather, on this floor at some time or 
another has disagreed with a decision of a Federal judge, for different 
reasons. Each one of us, I would be willing to guess, has to thank God 
we have an independent Federal judiciary and that we can't stand up and 
tell the judge how to rule. I know that when I argued cases before 
Federal courts, I used to sit there knowing they were going to be 
independent, knowing that I might win and I might lose. I would make my 
best argument, and it would go from there. That is the way it should 
be.
  What I worry about, Mr. President, is that if we allow the Federal 
judiciary to be caught up in partisan moves, where one side tries to 
get advantage over the other, while one side or the other might win in 
the short term, all of us as Americans are damaged because our Federal 
judiciary is damaged. Every one of us--Republican or Democrat--should 
know if we look at history, read history, and if we understand history, 
that one of the reasons we are the greatest democracy history has ever 
known is because of our independent Federal judiciary. We should never 
allow anything to happen to cut back on that independence.
  I have never seen anything like this current stall in the judicial 
confirmation process in almost 23 years in the U.S. Senate. I came here 
in 1974, in one of the largest classes of this Senate. In fact, I today 
stand here as the only one who has not announced retirement or left. 
But I think all the way through that, working with some of the finest 
men and women I have ever known in both parties--and we have had 
fights, partisan fights, saying that we should do this farm bill this 
way or this farm bill that way, or this highway bill this way or that 
way, or the crime bill this way or that way--we fought it out and we 
have had the votes and one side or the other wins, and the President 
either signs it or not. We have done this on foreign policy issues and 
on all others. But the one area that we have tried to protect from 
partisan squabbles has been the area of the Federal judiciary.

  We know that whoever is President is going to have the greatest 
influence of all of us on who is going to be a Federal judge. President 
Reagan made it very clear when he ran for President, for example, who 
he would appoint as Federal judges. A lot of these Federal judges are 
not the men and women I would have appointed from that circuit or that 
district. But I voted for all of them because they were honest people, 
people of integrity, people of confidence, and people I could look at 
and say, although I might have disagreed with their political 
background, I know that, as a litigant, if I came before his or her 
court, I could expect an honest treatment.
  President Bush had other ideas who should be there, as President 
Carter and President Ford did. These are all Presidents I have served 
with. President Clinton now has his ideas.
  Now, the interesting thing, President Ford was appointed, but these 
others, in every election, at some point during the campaign, it became 
an issue as to who will this Presidential candidate appoint to the 
Federal judiciary. And the American people examined their views and 
they elected President Carter, President Reagan, President Ford, and 
President Clinton.
  A President should be given a great deal of latitude on who he 
nominates to the Federal court. If we disagree with a nomination, then 
we can vote against it. But, frankly, Mr. President, not only does it 
damage the integrity and the independence of the Federal judiciary by 
just holding judicial nominations hostage where nobody ever even votes 
on them, but I think it damages the integrity of the U.S. Senate.
  I have said many times that the U.S. Senate should be the conscience 
of the Nation. On occasion, it has been. But it does not reflect the 
conscience of a great nation when we take a third and independent 
branch of our Government, a truly independent branch of our Government, 
and try to whittle away its independence and try to whittle away its 
efficacy, and do it unwilling to stand on the floor of the U.S. Senate 
and vote one way or the other.
  If President Clinton sends a nominee to the Senate that any Senator--
Democrat or Republican--doesn't like, vote against him or her. That is 
your right as a U.S. Senator. But don't say, well, they look like 
pretty good people, but we can't even allow a vote on their nomination. 
And don't say, if you are, for example, in Texas, that it is terrible 
that drug and illegal immigrant cases are not being heard, what is the 
court doing? People in Texas should say, what is the U.S. Senate doing? 
Why aren't they acting? If you are a civil litigant in the sixth 
circuit or ninth circuit, or a number of others that have emergency 
vacancies, and you have one of your rights to be protected, what do you 
do? You say, why aren't those judges hearing these cases? No. Say, why 
isn't the U.S. Senate confirming people.
  Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senator should be advised that under the 
previous order, at 12:30, the Senate was to begin consideration of S. 
903. Neither of the floor managers for that legislation are present; 
therefore, a request to continue would be in order.
  Mr. LEAHY. I thank the Chair. I ask unanimous consent to continue for 
another 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, we live, unfortunately, in a partisan time. 
I have never seen either the U.S. Senate

[[Page S5655]]

or the House of Representatives tied up in such partisan knots. I find 
that it is personally distressing to me. I have enormous respect for 
the U.S. Senate and enormous respect for the House of Representatives.
  I have felt it a great privilege to serve with distinguished 
Republican and Democrat leaders of both the House and the Senate. I 
think I have been a personal friend of nearly every leader in the House 
and the Senate in both parties. And I have considered that as one of 
the great joys of serving in the U.S. Senate. I can think of a number 
of times I have joined with Members of both parties to push difficult 
legislation through. The last farm bill was an example when it was 
completely tied up. Then it became the Lugar-Leahy-Dole farm bill and 
passed this Senate with the highest number of votes which I believe a 
farm bill had ever passed before. The next closest one was probably the 
Lugar-Leahy farm bill of 5 years before.
  I am not suggesting that the two parties hold hands on every issue by 
any means. I don't think that would serve the country well. But there 
are certain issues where we come together for the country. We have done 
this on major foreign policy issues. We have done it at times when this 
country desperately needed it. We did it recently on the budget 
agreement.
  Mr. President, each one of us should search our souls and ask whether 
the country is well served by the bitterness that has gone on in some 
of the partisanship, by the personal attacks against each other and 
against the institution that we should be proud to serve, or the 
attacks against the President that have become so personal.
  We should ask ourselves if we benefit this great Nation that we are 
privileged to serve if we diminish and chip away and even destroy some 
of the independence of our Federal judiciary because, if we do that, 
Mr. President, some day we will no longer be here. Nobody holds a seat 
in the U.S. Senate. The distinguished Presiding Officer will leave 
sometime, and the Senator from Vermont will leave the U.S. Senate 
sometime. All of us will.
  But when we leave, we should look back, and ask, ``What did we do 
here? What mark in history did we leave?'' If we have left as our mark 
that we made the Government better, that we made the Senate better, 
that we made the Congress better, that we protected the institutions of 
our Government, that we protected the people of our democracy, then we 
can go home knowing that we served our Nation well.
  But we should ask ourselves, each and every one, if we leave here and 
say that as a result of our partisanship on either side of the aisle 
that the Federal judiciary was diminished--one of the great 
institutions of this country, one of the reasons we have remained a 
democracy, one of the things which guaranteed our diversity, which 
allows the most powerful nation that history has ever known to be a 
democracy and not a dictatorship--then we cannot feel that we have 
served our Nation well. We cannot feel that we can be proud of our time 
in the U.S. Senate.
  So I urge Senators to think about this story. I realize that we are 
in a different time--and I am reminded that I have spoken before on the 
floor of the Senate about the experience my father had in Vermont in 
1937, 3 years before I was born. Vermont was one of the most Republican 
States back in 1936 in the Roosevelt great landslide. Alf Landon--the 
distinguished father of our distinguished former colleague, Senator 
Kassebaum--Alf Landon carried two States: Maine and Vermont.
  And the head of our largest insurance company, the National Life 
Insurance Co., basically the titular head of the Republican Party, was 
standing next to my father on State Street in Montpelier, VT, as 
President Roosevelt was making a visit to Vermont and went by in an 
open car. The president of the National Life Insurance Co. stood at 
attention and took off his hat--all men wore hats at that time--and he 
held it over his heart as President Roosevelt's car went by. My dad 
said, ``I can't believe you took off your hat for Franklin Roosevelt.'' 
He looked with arched concern at my father and said, ``Howard, I took 
off my hat for the President of the United States, not for Franklin 
Roosevelt.''
  I have disagreed with Presidents of both parties since I have been 
here. I have agreed with President Ford, President Carter, President 
Reagan, President Bush, and President Clinton. I have voted with each 
of these President's on occasions. I have voted against them on 
occasions. I felt it a privilege to meet with them and argue with them. 
I stated my position as clearly as I could, but always respectfully 
because of the office that they held--the same way those of us who have 
been lawyers, who have practiced, know the respect that we hold for the 
courts that we enter. We all rise. We say ``Your Honor,'' and so forth. 
We have done this not because we felt that every judge that ever 
appeared before us was the most brilliant person we have ever known, 
but we have done it because we know this is an institution that must be 
protected for the sake of our country. Our State courts must be 
protected for the sake of our States because without an independent 
judiciary, then our system of government all breaks down.
  We looked, following the tragedy of Oklahoma City, at the trial that 
has just been completed, looked at a judge who commanded the respect of 
that courtroom. Both sides--the prosecution and the defense--knew the 
judge who ran that case. I contrast that to a case of a year ago where 
a judge allowed the case to just fall apart, and how much that damaged 
our judicial system. Then we go back to the Federal court and see a 
judge who knows that both sides will have their opportunity and their 
rights protected, and they will try this case. The lawyers on both 
sides knew and respected the Federal court. They knew that this was a 
case that would be handled under our judicial system, even one 
involving one of the most horrible acts, certainly the most horrible 
domestic act of my lifetime, and one of the most horrible domestic acts 
of this Nation's history. But because we can count on the Federal 
court, the whole Nation could watch, the whole Nation feeling the 
anguish that we all felt that terrible day in Oklahoma City. We could 
watch that court and know that our system works, that we could trust 
that system, because all of us--the distinguished Presiding Officer, 
myself, and every one of us who--have always protected the integrity of 
our courts.
  Let us not do anything as Senators, for whatever short-term political 
gain, to tear apart the integrity of our courts. Let us work together 
and call on the distinguished majority leader, and those who make the 
decision of when these judges can come up, to work with all of us, not 
as Democrats nor as Republicans but as U.S. Senators, doing what is 
best for this Nation, what is best for our judiciary, what is best for 
our democracy, and what is best for the independence of our judiciary 
that has made us the great Nation that we are.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HELMS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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