[Congressional Record Volume 143, Number 115 (Thursday, September 4, 1997)]
[Senate]
[Pages S8819-S8821]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 STATEMENT ON THE NOMINATIONS OF FRANK M. HULL AND HENRY HAROLD KENNEDY

  Mr. LEAHY. I am encouraged that the Senate is taking up two of the 
nine judicial nominations on the Executive Calendar.
  I am delighted that the Senate majority leader has decided to take up 
the nomination of Judge Frank M. Hull to be a U.S. Circuit Judge for 
the Eleventh Circuit Court of Appeals. Since 1994, the nominee has been 
a United States district judge for the Northern District of Georgia and 
prior to that she was a judge for the Superior Court of Fulton, County 
in Georgia. The ABA has unanimously found her to be well-qualified, its 
top rating. With the strong support of Senator Coverdell and Senator 
Cleland, this nomination has moved expeditiously through the committee 
and is being confirmed by the Senate. I congratulate Judge Hull and her 
family and look forward to her service on the Court of Appeals.
  I am also delighted that the Senate majority leader has decided to 
take up the nomination of Judge Henry Harold Kennedy, Jr. to be a U.S. 
district judge for the District of Columbia. Since 1979, the nominee 
has been an associate judge for the District of Columbia and prior to 
that he was a U.S. magistrate. The ABA has unanimously found him to be 
well-qualified, its top rating. With the strong support of Senator 
Thurmond and Delegate Eleanor Holmes Norton, this nomination has moved 
expeditiously through the committee and is being confirmed by the 
Senate. I congratulate Judge Kennedy and his family and look forward to 
his service on the district court.
  With these confirmations the Senate will raise to 11 the number of 
Federal judges confirmed this year and exceed, for the first time this 
year, the snail-like pace of confirming one judge per month. The Senate 
pace will rise to an anemic 1.2 judges per month. Meanwhile, vacancies 
have continued to mount and the delays in filling vacancies continue to 
grow.

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  It is discouraging to once again have to call attention to the fact 
that of the 61 nominations sent to the Senate by the President some 40 
nominees are pending before the Judiciary Committee--nominees who have 
yet to be accorded even a hearing during this Congress. Many of these 
nominations have been pending since the very first day of this session, 
having been renominated by the President after having been held up 
during last year's partisan stall.
  The committee has not yet worked through the backlog of nominees left 
pending from last year. Several of those pending before the committee 
had hearings or were reported favorably last Congress but have been 
passed over so far this year, while the vacancies for which they were 
nominated over 2 years ago persist. The committee has 12 nominees who 
have been pending without action for more than a year, including 7 who 
have been pending since 1995.
  There is no excuse for the committee's delay in considering the 
nominations of such outstanding individuals as Professor William A. 
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, Ms. M. 
Margaret McKeown, Ms. Ann L. Aiken, and Ms. Susan Oki Mollway, to name 
just a few of the outstanding nominees who have all been pending all 
year without so much as a hearing. Professor Fletcher and Ms. Mollway 
had both been reported last year. Judge Paez and Ms. Aiken had hearings 
last year but have been passed over so far this year.
  We continue to fall farther and farther behind the pace established 
by the 104th Congress. By this time 2 years ago, Senator Hatch had held 
8 confirmation hearings involving 36 judicial nominees, and the Senate 
had proceeded to confirm 35 Federal judges.
  Those who delay or prevent the filling of these vacancies must 
understand that they are delaying or preventing the administration of 
justice. We can pass all the crime bills we want, but you cannot lock 
up criminals if you do not have judges. The mounting backlogs of civil 
and criminal cases in the emergency districts, in particular, are 
growing taller by the day.
  I have spoken often about the crisis being created by the 103 
vacancies that are being perpetuated on the Federal courts around the 
country. At the rate that we are currently going this year, more and 
more vacancies are continuing to mount over longer and longer times to 
the detriment of greater numbers of Americans and the national cause of 
prompt justice. We are not even keeping up with attrition.
  Chief Justice Rehnquist has repeatedly acknowledged the crisis being 
posed for the Federal judiciary and, I believe, for all Americans. The 
Chief Justice has called the rising number of vacancies ``the most 
immediate problem we face in the federal judiciary.'' The Courts 
Subcommittee heard on Thursday afternoon from judges from the second 
and eighth circuits about the adverse impact of vacancies on the 
ability of the Federal courts to do justice. The effect is seen in 
extended delay in the hearing and determination of cases and the 
frustration that litigants are forced to endure. The crushing caseload 
will force Federal courts to rely more and more on senior judges, 
visiting judges and court staff.
  The Attorney General spoke recently about the ``vacancy crisis that 
has left so many Americans waiting for justice'' noting that vacancies 
are up at a time that filings are up, caseloads are increasing, 
backlogs are increasing, and we are experiencing an ``unprecedented 
slowdown in the confirmation process'' that has ``very real and very 
detrimental impacts on all parts of our justice system. She spoke about 
the hundreds of appellate arguments being canceled, the Federal judges 
who go for entire years without hearing a single civil case. She said: 
``Quite simply without enough judges, our laws will become empty 
promises and `swift justice' will become an oxymoron, and without the 
independence they need to uphold those laws, our judges will become 
hostages to politics instead of being the guardians of our 
principles.''
  In July I received a copy of a letter sent to President Clinton and 
the Republican leader of the Senate by seven presidents of national 
legal associations. These presidents note the ``looming crisis in the 
Nation brought on by the extraordinary number of vacant federal 
judicial positions'' and the ``injustice of this situation for all of 
society.'' They point to ``[d]angerously crowded dockets, suspended 
civil case dockets, burgeoning criminal caseloads, overburdened judges, 
and chronically undermanned courts'' as circumstances that ``undermine 
our democracy and respect for the supremacy of law.'' I agree with 
these distinguished leaders that we must without further delay ``devote 
the time and resources necessary to expedite the selection and 
confirmation process for federal judicial nominees.'' The President is 
doing his part, having sent us 61 nominations so far this year with 
more on the way. The Senate should start doing its part.
  In choosing to proceed on these two nominees, the Republican 
leadership has chosen once again to skip over the nomination of 
Margaret Morrow and to delay action on six other outstanding nominees 
who were reported at the same time as those fortunate enough to be 
selected for consideration by the Senate this week.
  I want to turn briefly to the long-pending nomination of Margaret 
Morrow to be a district court judge for the Central District of 
California. Ms. Morrow was first nominated on May 9, 1996--not this 
year but May 1966. She had a confirmation hearing and was unanimously 
reported to the Senate by the Judiciary Committee in June 1996. Her 
nomination was, thus, first pending before the Senate more than a year 
ago. This was one of a number of nominations caught in the election 
year shutdown.
  She was renominated on the first day of this session. She had her 
second confirmation hearing in March. She was then held off the 
Judiciary agenda while she underwent rounds of written questions. When 
she was finally considered on June 12, she was again favorably reported 
with the support of Chairman Hatch. She has been left pending on the 
Senate Executive Calendar for more 3 months and has been passed over, 
again.
  This is an outstanding nominee to the District Court. She is 
exceptionally well qualified to be a Federal judge. I have heard no one 
contend to the contrary. She has been put through the proverbial 
ringer--including at one point being asked her private views, how she 
voted, on 160 California initiatives over the last 10 years.
  She has been forced to respond to questions about particular judicial 
decisions. I find this especially ironic in light of the Judiciary 
Committee's questionnaire in which we ask whether anyone involved in 
the process of selecting the nominee discussed with her ``any specific 
case, legal issue or question in a manner that could reasonably be 
interpreted as asking how you would rule on such case, issue, or 
question.'' We try to ensure that the administration imposes no litmus 
tests and does not ask about specific cases.
  The committee insisted that she do a homework project on Robert 
Bork's writings and on the jurisprudence of original intent. Is that 
what is required to be confirmed to the district court in this 
Congress?
  With respect to the issue of ``judicial activism,'' we have the 
nominee's views. She told the committee: ``The specific role of a trial 
judge is to apply the law as enacted by Congress and interpreted by the 
Supreme Court and Courts of Appeals. His or her role is not to `make 
law.' '' She also noted: ``Given the restrictions of the case and 
controversy requirement, and the limited nature of legal remedies 
available, the courts are ill equipped to resolve the broad problems 
facing our society, and should not undertake to do so. That is the job 
of the legislative and executive branches in our constitutional 
structure.''
  Margaret Morrow was the first woman president of the California Bar 
Association and also a past president of the Los Angeles County Bar 
Association. She is an exceptionally well-qualified nominee who is 
currently a partner at Arnold & Porter and has practiced for 23 years. 
She is supported by Los Angeles' Republican Mayor Richard Riordan and 
by Robert Bonner, the former head of DEA under a Republican 
administration. Representative James Rogan attended her second 
confirmation hearing to endorse her.
  Margaret Morrow has devoted her career to the law, to getting women 
involved in the practice of law and to

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making lawyers more responsive and responsible. Her good works should 
not be punished but commended. Her public service ought not be grounds 
for delay. She does not deserve this treatment. This type of treatment 
will drive good people away from government service.
  The president of the Woman Lawyers Association of Los Angeles, the 
president of the Women's Legal Defense Fund, the president of the Los 
Angeles County Bar Association, the president of the National 
Conference of Women's Bar Association and other distinguished attorneys 
from the Los Angeles area have all written the Senate in support of the 
nomination of Margaret Morrow. They write that: ``Margaret Morrow is 
widely respected by attorneys, judges and community leaders of both 
parties'' and she ``is exactly the kind of person who should be 
appointed to such a position and held up as an example to young women 
across the country.'' I could not agree more.
  Mr. President, the Senate should move expeditiously to consider and 
confirm Margaret Morrow, along with Anthony Ishii, Katherine Hayden 
Sweeney, Robert F. Droney, Janet C. Hall, Joseph F. Bataillon, and 
Robert C. Chambers to be district court judges.

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