[Congressional Record Volume 143, Number 130 (Thursday, September 25, 1997)]
[Senate]
[Pages S9957-S9959]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


       STATEMENT ON NOMINATION OF JUDGE KATHERINE SWEENEY HAYDEN

  Mr. LEAHY. Mr. President, today is the 40th anniversary of the 
beginning of the end of racial segregation in the public schools in 
Little Rock, AR. As we turn to reflect on Little Rock and the aftermath 
of the Supreme Court's landmark decision on public school segregation, 
we should consider the important lessons those times still hold for us 
today. Little Rock was a testing point in our history when the rule of 
law and respect for our courts and Constitution prevailed.
  Three years earlier, the Supreme Court's unanimous Brown versus Board 
of Education decision prompted a concerted assault on the judiciary. On 
March 12, 1956, 81 Members of Congress signed a resolution condemning 
that ruling as a ``clear abuse of judicial power'' and part of a 
``trend in the Federal judiciary to legislate, in derogation of the 
authority of Congress, and

[[Page S9958]]

to encroach upon the reserved rights of the people.'' Billboards 
sprouted around the country demanding the impeachment of Chief Justice 
Earl Warren. Justice Clarence Thomas recalls that as a young man his 
``most vivid childhood memory of the Supreme Court was the `Impeach 
Earl Warren' signs that lined Highway 17 near Savannah. I didn't 
understand who this Earl Warren fellow was, but I knew he was in some 
kind of trouble.''
  It should concern all of us that a pattern resembling that which 
followed the Supreme Court's decision in Brown is being repeated. It 
has once again become fashionable in some quarters to sloganeer about 
impeaching Federal judges. This year's continuing attack on the 
judicial branch, the slowdown in the processing of the scores of good 
women and men the President has nominated to fill vacancies on the 
Federal courts, and widespread threats of impeachment are all part of a 
partisan, ideological effort to intimidate the judiciary. Extremist 
elements have turned their fire on the branch of Government most 
protective of our freedoms but the least equipped to protect itself 
from political attacks.
  We are hearing from some Members of Congress a clamor for impeachment 
when a judge renders a decision that irritates them. We are hearing 
demands that Congress destroy the orderly process of appellate court 
and Supreme Court review and, instead, assume the role of a supercourt 
that would legislatively review and veto individual decisions. We are 
seeing proposals to amend the Constitution, to eliminate the 
independence and lifetime tenure of judges. Extreme rhetoric and 
outlandish proposals have contributed to a poisonous atmosphere in 
which the Federal justice system is overloaded.
  Last week on the 210th anniversary of the signing of the 
Constitution, a newspaper reported that the majority leader of the 
Senate applauded the idea of Republicans plotting to intimidate the 
Federal judiciary, commenting that ``it sounds like a good idea to 
me.'' For the majority leader of the Senate to join an acknowledged 
attack on the independence and integrity of the Federal judiciary is a 
troubling and disappointing development that shows how easily political 
leaders can succumb to such political temptations, even at the expense 
of the checks and balances that are needed to protect our rights.
  It is one thing to criticize the reasoning of an opinion, or the 
result in a case, or to introduce legislation to change the law. It is 
quite another matter to undercut the separation of powers and the 
independence that the Founders created to insulate the judiciary from 
politics. Independent judicial review has been a crucial check on two 
political branches of our Government that has served us so well for 
more than two centuries. This bedrock principle has helped preserve our 
freedoms and helped make this country the model for emerging 
democracies around the world.
  Something that sets our Nation--the world's oldest continuing 
democracy--apart from virtually all others is the independence of our 
Federal judiciary and the respect that the public and that political 
leaders give it. Every fledgling democracy sends observers to the 
United States to study and emulate our independent judiciary, the envy 
of the world. The independence of our third, coequal branch of 
Government gives it the ability to fairly and impartially arbiter 
disputes, to prevent overreaching by the other two branches, and to 
defend our individual rights and freedoms that are so susceptible to 
the gusting political winds of the moment.

  In the 23 years that I have been privileged to serve in the U.S. 
Senate I have never known a time when the Senate's leadership, 
Republican or Democratic, would tolerate partisan and ideological 
politics to so divert the institution from its constitutional 
responsibilities to the third, coequal branch of Government.
  The Nation needs to move forward, as we did after President 
Eisenhower acted to restore the rule of law. The citizens of Little 
Rock and other cities throughout the country accepted the 
constitutional imperative to end segregated schools. A few years later 
Congress acted to pass the historic Civil Rights Act of 1964 and the 
Voting Rights Act of 1965. In 1997, can anyone say that we are not a 
better and stronger nation for having honored the Supreme Court's Brown 
decision by enforcing it in Little Rock?
  The American people know that a fair and impartial judiciary is key 
to maintaining our democracy and our rights. The continuing partisan 
campaign against qualified and fair judicial nominees has to come to an 
end. If the judiciary is to retain its ability to protect our rights 
and freedoms as we move into a new century of American history, if it 
is to serve as a check on the political branches, it must have the 
judges and resources necessary to the task. Vacant courtrooms and empty 
benches cannot hear criminal trials, enforce our environmental 
protection laws, resolve legal claims or uphold the Constitution 
against encroachment.
  I am delighted that the majority leader has decided to take up the 
nomination of Judge Katherine Sweeney Hayden to be a U.S. district 
judge for the District of New Jersey. Judge Sweeney Hayden is a well-
qualified nominee.
  Since 1991, the nominee has been a judge on the superior court in 
Newark, NJ. The ABA has unanimously found her to be well qualified, its 
top rating. She has the support of Senators Lautenberg and Torricelli. 
She had a confirmation hearing on June 25 and was reported by the 
Judiciary Committee on July 10 along with the nomination of Anthony 
Ishii to be a district judge in the Eastern District of California, 
whose nomination remains pending on the Senate Calendar. Her nomination 
has been held up for the last 2\1/2\ months without explanation and I 
am glad to see it finally being brought forward. I congratulate Judge 
Sweeney Hayden and her family and look forward to her service on the 
federal court.
  I spoke on September 5 and 11 urging that this nomination and the 
others on the calendar be considered. There are now five other judicial 
nominations ready for Senate consideration. Unfortunately, they are not 
being taken up today and I know of no plan for them to be taken up any 
time soon.
  With Senate confirmation of these district judges, the Senate will 
still be a confirmation short of the dismal total of last year. We 
still have more than 40 nominees among the 68 nominations sent to the 
Senate by the President who are pending before the Judiciary Committee 
and 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. 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 10 nominees who have been pending for more 
than a year, including 5 who have been pending since 1995.
  While I am encouraged that the Senate is today proceeding with the 
nomination of Judge Sweeney Hayden, there is no excuse for the 
committee's delay in considering the nominations of such outstanding 
individuals as Prof. 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 favorably reported 
last year. Judge Paez and Ms. Aiken had hearings last year but have 
been passed over so far this year. Nor is there any explanation or 
excuse for the Senate not immediately proceeding to consider the other 
five judicial nominations pending on the Senate Calendar.
  The Senate continues to lag well behind the pace established by 
Majority Leader Dole and Chairman Hatch in the 104th Congress. By this 
time 2 years ago, the Senate had confirmed 36 Federal judges. With 
today's actions, the Senate will have confirmed less than one-half that 
number, only 16 judges. We still face almost 100 vacancies and have 50 
pending nominees to consider with more arriving each week.

  For purposes of perspective, let us also recall that by August 1992, 
during the last year of President Bush's term, a Democratic majority in 
the Senate had confirmed 53 of the 68 nominees sent to us by a 
Republican President.

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 By the end of August this year, this Senate had acted on only 9 out of 
61 nominees. Indeed, by the end of September in President Bush's final 
year in office, the Senate confirmed 59 of his 72 nominees. This Senate 
is on pace to confirm only 16 out of a comparable number of 
nominations.
  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 try 
the cases and incarcerate the guilty if you do not have judges. The 
mounting backlogs of civil and criminal cases in the dozens of 
emergency districts, in particular, are growing taller by the day. 
National Public Radio has been running a series of reports all this 
week on the judicial crises and quoted the chief judge and U.S. 
attorney from San Diego earlier this week to the effect that criminal 
matters are being affected.
  I have spoken about the crisis being created by the vacancies that 
are being perpetuated on the Federal courts around the country. At the 
rate that we are going, we are not keeping up with attrition. When we 
adjourned last Congress there were 64 vacancies on the federal bench. 
After the confirmation of 16 judges in 9 months, there has been a net 
increase of 32 vacancies. The Chief Justice of the Supreme Court has 
called the rising number of vacancies ``the most immediate problem we 
face in the Federal judiciary.''
  The Judiciary Committee has heard testimony from second circuit, 
ninth circuit and 11th circuit judges 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.
  Judges from the Second Circuit Court of Appeals testified, for 
example, that over 80 percent of its appellate court panels over the 
next 12 months cannot be filled by members of that court but will have 
to be filled by visiting judges. This is wrong.
  We ought to proceed without delay to consider the nomination of Judge 
Sonia Sotomayor to the second circuit and move promptly to fill 
vacancies that are plaguing the second and ninth circuits. We need to 
fill the 5-year-old vacancy in the Northern District of New York and 
move on nominations for over 30 judicial emergency districts.
  In choosing to proceed on this nominee, the Republican leadership has 
chosen for at least the fourth time this month to skip over the 
nomination of Margaret Morrow. I, again, urge the Senate to consider 
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 
1996. 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 15 months 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 three months and has been passed 
over, time and again, without justification or explanation.
  What is this mystery hold all about? In spite of my repeated attempts 
to find out who is holding up consideration of this outstanding 
nominee, and why, I am at a loss.
  Ms. Morrow is a qualified nominee to the district court. I have heard 
no one contend to the contrary. She has been put through the proverbial 
wringer--including at one point being asked her private views, how she 
voted, on 160 California initiatives over the last 10 years.
  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 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.
  The President of the Women 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, Richard Lazzara, 
Christina Snyder and Marjorie Rendell.
  (At the request of Mr. Daschle, the following statement was ordered 
to be printed in the Record.)

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