[Congressional Record Volume 143, Number 155 (Friday, November 7, 1997)]
[Senate]
[Pages S11938-S11940]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF CHRISTINA A. SNYDER, OF CALIFORNIA, TO BE U.S. DISTRICT 
              JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the nomination of Christina A. 
Snyder, which the clerk will report.
  The legislative clerk read the nomination of Christina A. Snyder, of 
California, to be U.S. district judge for the central district of 
California.
  Mr. THOMAS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LEAHY. Mr. President, I am glad to see that the Senate is finally 
turning its attention to the nomination of Christina Snyder. She was 
first nominated in May 1996, over 17 months ago. Her hearing was 
finally held in July of this year and after another 2-month delay, she 
was reported by the Judiciary Committee without objection. She has been 
pending on the Senate Calendar without action and without any 
explanation for the 2-month delay that has since ensued.
  It seems that the delay in considering her nomination had nothing to 
do with her outstanding qualifications or temperament or ability to 
serve as a Federal judge. Rather, it seems that some opposed this fine 
woman and held up her nomination to a very busy court because she had 
encouraged lawyers to be involved in pro bono activities.
  Ms. Snyder has been held up anonymously for months and months. When 
the Judiciary Committee finally met to consider her nomination, I was 
curious to learn who and what had delayed her confirmation for over a 
year. But no one spoke against her and no one voted against her.
  Ms. Snyder has been an outstanding lawyer, a member of the American 
Law Institute, and someone who contributes to the community and has 
lived the ethical consideration under Canon 2 of the Code of 
Professional Responsibility. I congratulate her on her outstanding 
career.
  When she was being interrogated about her membership on the boards of 
Public Counsel and the Western Center on Law and Public Interest, 
Senator Feingold properly observed:

       [I]t is kind of an irony when we get to the day where if 
     you don't participate in pro bono activities, you are somehow 
     in a situation where your record is a little safer vis a vis 
     being appointed to a Federal judgeship. And then when you get 
     involved in pro bono activity, that might actually cause you 
     to get a few more questions. . . . [T]hat can't be an 
     encouragement for lawyers to get involved in pro bono 
     activities on behalf of people who don't have the ability to 
     go to court very easily.

  After all these months, I was please to hear Senator Sessions 
pronounce Ms. Snyder ``an outstanding individual with a fine record'' 
and ``a capable lawyer of integrity and ability,'' when her nomination 
was considered by the Judiciary Committee.
  I congratulate Ms. Snyder and her family and look forward to her 
service on the Federal court.
  Although I am delighted that the Senate will today be confirming 
Christina Snyder as a Federal district court judge, the Republican 
leadership has once again passed over and refused to take up the 
nomination of Margaret Morrow. Ms. Morrow's nomination is the longest 
pending judicial nomination on the Senate Calendar, having languished 
on the Senate Calendar since June 12.
  The central district of California desperately needs this vacancy 
filled, which has been open for more than 18 months, and Margaret 
Morrow is eminently qualified to fill it. Thus, while the Senate is 
finally proceeded to fill one of the judicial emergency vacancies that 
has plagued the U.S. District Court for the central district of 
California, it continues to shirk its duty with respect to the other 
judicial emergency vacancy, that for which Margaret Morrow was 
nominated on May 9, 1996.
  Just 2 week's ago, the opponents of this nomination announced in a 
press conference that they welcomed a debate and rollcall vote on 
Margaret Morrow. But again the Republican majority leader has refused 
to bring up this well-qualified nominee for such debate and vote. It 
appears that Republicans have time for press conferences to attack one 
of the President's judicial nominations, but the majority leader will 
not allow the U.S. Senate to turn to that nomination for a vote. We can 
discuss the nomination in sequential press conferences and weekend talk 
show appearances but not in the one place that action must be taken on 
it, on the floor of the U.S. Senate.
  The Senate has suffered through hours of quorum calls in the past few 
weeks which time would have been better spent debating and voting on 
this judicial nomination. The extremist attacks on Margaret Morrow are 
puzzling--not only to those of us in the Senate who know her record but 
to those who know her best in California, including many Republicans.
  They cannot fathom why a few senators have decided to target someone 
as well-qualified and as moderate as she is. Just this week I included 
in the Congressional Record a recent article from the Los Angeles Times 
by Henry Weinstein on the nomination of Margaret Morrow, entitled 
``Bipartisan Support Not Enough for Judicial Nominee.'' This article 
documents the deep and widespread bipartisan support that Margaret 
Morrow enjoys from Republicans that know her. In fact, these 
Republicans are shocked that some Senators have attacked Ms. Morrow.
  For example, Sheldon H. Sloan, a former president of the Los Angeles 
County Bar Association and an associate of Gov. Pete Wilson, declared 
that: ``My party has the wrong woman in their sights.'' Stephen S. 
Trott, a former high-ranking official in the Reagan administration and 
now a Court of Appeals Judge wrote to the majority leader to try to 
free up the Morrow nomination, according to this article Judge Trott 
informed Senator Lott:

       ``I know that you are concerned, and properly so, about the 
     judicial philosophy of each candidate to the federal bench. 
     So am I. I have taken the oath, and I know what it means: 
     follow the law, don't make it up to suit your own purposes. 
     Based on my own long acquaintance with Margaret Morrow, I 
     have every confidence she will respect the limitations of a 
     judicial position.''

  Robert Bonner, the former head of DEA under a Republican 
administration, observed in the article that: ``Margaret has gotten 
tangled in a web of larger forces about Clinton nominees. She is a mere 
pawn in this struggle.'' I could not agree more.
  I ask unanimous consent to have printed in the Record an article by 
Terry Carter from the Los Angeles Daily Journal entitled ``Is Jihad on 
Judicial Activism About Principle or Politics?'' In that article 
Senator Sessions is quoted as saying that the Senate ``can have a vote 
on [Morrow] nomination tomorrow.'' Well, today is tomorrow. It is high 
time to free the nomination of Margaret Morrow for debate and a vote.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

           [From the Los Angeles Daily Journal, Nov. 6, 1997]

       Is Jihad on Judicial Activism About Principle or Politics?

                           (By Terry Carter)

       Washington.--Three years after being nominated for the 
     federal bench--having been branded a California ``activist,'' 
     grilled by Senate Judiciary Committee members about her 
     personal voting habits and consigned to nomination limbo by 
     an unidentified senator's ``hold''--it would have been 
     understandable if Los Angeles lawyer Margaret Morrow began 
     composing a withdrawal letter in her head.
       If she did, she could have looked for inspiration to what 
     previous failed nominees had written.
       ``Despite the unpleasantness of the process, I am grateful 
     for the honor of having had your support,'' one would-be 
     federal judge wrote to his sponsor. ``. . .For a while there, 
     I really thought that your Herculean efforts had overcome the 
     false and misleading charges that were made against me.''
       The author of that letter found salve in a manner few dream 
     of. After his 1986 bid for a judgeship fell to a party line 
     vote, then-Alabama U.S. Attorney Jeff Sessions, who faced 
     questionable charges of racial insensitivity during Judiciary 
     Committee hearings, went on to become a two-term governor and 
     was

[[Page S11939]]

     elected to the Senate in 1994 along with a number of other 
     uncompromising firebrands. Today, Sessions sits on the very 
     Judiciary Committee that rejected him, and he holds his thumb 
     up or down on judicial nominations.
       In an interview, Sessions said, ``We can have a vote on 
     [Morrow] tomorrow as far as I'm concerned. And I'd want to 
     talk about some of her writings and statements and the Senate 
     could vote.'' Sessions went on to say, ``Margaret Morrow has 
     written disrespectfully of the potential for good public 
     policy coming out of the referendums in California. We have a 
     real popular uproar over judges who've overturned 
     referendums.''
       She likely would be, Sessions said, ``a judicial 
     activist.''
       In the judicial activism wars, Morrow will be either a 
     victim or a survivor. In the spring, Morrow, a partner with 
     Arnold & Porter and the first woman president of the State 
     Bar, made it through the committee on a 13-5 vote.
       Tough questions from, among others, Sen. Charles Grassley, 
     R-Iowa, about how she voted on past state referenda were seen 
     by many observers as transparent attempts to see how, as a 
     judge, she might rule on matters concerning immigration, the 
     death penalty, medical use of marijuana and other hot-button 
     issues. But she seemed to weather the storm. Even the 
     conservative Judiciary Committee chairman, Sen. Orrin Hatch, 
     R-Utah, finally pronounced Morrow fit, saying his reservation 
     about her potential for judicial activism had been assuaged. 
     Now that her name has gone to the floor, her candidacy is 
     promised a full-fledged debate by both sides.
       Either way, Morrow has come to define the renewed flare-up 
     of the age-old debate over the role of judges, predicted 200 
     years ago by Madison and Hamilton in the Federalist Papers. 
     But there is a difference this time. Swirling in the 
     background is a clash of old and new politics on Capitol 
     Hill, particularly among Republicans campaigning for re-
     election and intent on keeping control of the Congress, even 
     as they battle among themselves over leadership.
       Republicans didn't have to look far to find a bogeyman in 
     the judiciary--which not only is a good target, but it can't 
     fight back.
       Chasing so-called judicial activists is more than sucker-
     punching a patsy, as liberals put it. It gives Republicans 
     something to do together while battling over party 
     leadership. The excesses, the speed, have come mostly from 
     the Young Turks and some old hands trying to get ahead. 
     Whenever one pulls a foot off the accelerator to slow it 
     down, another jams it to the floor--and no one wants out of 
     the car.
       ``On this issue it's more strategy and tactics that bring 
     disagreement among conservatives, not goals and objectives,'' 
     said Elliot Mincberg, counsel for the liberal interest group 
     People for the American Way. The Young Turks and the 
     establishment all agree to keep as many Clinton nominees off 
     the bench as they can in a four-year stall, as much as they 
     can get away with it.
       The old guard hasn't gone out of its way to thwart the 
     excesses. One of the most extreme of those was the 
     announcement by Rep. Tom DeLay, R-Texas, earlier this year 
     that he would seek impeachment of activist judges. DeLay 
     recently reiterated the threat, and added that he wants it to 
     ``intimidate'' judges.
       Republican colleagues are quick to say that's beyond the 
     pale, that impeachment for individual rulings won't happen, 
     but, they admit, they like how it pushes the curve farther to 
     the right.
       A good example of that right-shifting spectrum is Hatch's 
     unilateral move earlier this year to end the American Bar 
     Association's formal role of advising the Senate on judicial 
     nominations, though individual senators still receive 
     reports, and the more important pre-screening for the White 
     House continues. Hatch told colleagues privately that he did 
     so to keep the hard liners from doing worse. He said he's in 
     the middle, but the middle keeps moving to the right.
       The hunt for judicial activists is also proving a good 
     fund-raising tool for some Republicans. Another freshman 
     senator on the Judiciary Committee, John Ashcroft, R-Mo., 
     already is signaling a run for the presidency. It was 
     Ashcroft who placed the ``hold'' on the Morrow nomination, it 
     was revealed last month. And Ashcroft used his chairmanship 
     of the subcommittee on the Constitution, Federalism and 
     Property Rights to hold hearings on judicial activism this 
     year. ``Its a good launching pad,'' said one Hill staffer. A 
     sophisticated Internet user, Ashcroft at one point dedicated 
     much of his Web site to judicial activism.
       He is one of only 10 senators, for several months one of 
     only six, to sign the so-called Hatch Pledge, which was 
     crafted in February by the Judicial Selection Monitoring 
     Project, a spinoff of the conservative Free Congress 
     Education and Research Foundation. Each senator was asked to 
     sign the pledge. It seized a sentence from a speech by Hatch 
     at a Federalist Society meeting in his home state. ``Those 
     nominees who are or will be judicial activists should not be 
     nominated by the president or conformed by the Senate, and I 
     personally will do my best to see that they are not.''
       Hatch himself declined the request, citing personal policy 
     against signing pledges, but he praised the efforts of the 
     coalition of 260 conservative groups brought together by the 
     Judicial Selection Monitoring Project. Also not joining 
     Ashcroft in signing it were Grassley and Sessions. ``I 
     believe in fighting judicial activism but I don't need to 
     sign a pledge,'' Sessions said. While judicial activism has 
     been debated hotly the past two years in a presidential 
     campaign, congressional hearings, on op-ed pages and in think 
     tanks and bar panel discussions; the term's definition 
     remains slippery. ``It has been debased by conservatives so 
     badly it has degenerated into an epithet for decisions you 
     don't like--it's aimed only at results,'' said Bruce Fein, a 
     former high-ranking official in the Ronald Reagan Justice 
     Department.
       Just the same, the debate quickened and became more focused 
     in June when the Supreme Court struck down federal laws 
     concerning religious freedom, Internet decency and handgun 
     regulation. Outcries from both the left and the right 
     questioned the process--calling it judicial activism--that 
     led to these results.
       No one did so more strongly than Hatch, who is considered 
     by many to be an ideological soul-mate of Chief Justice 
     William Rehnquist and Justices Antonin Scalia and Clarence 
     Thomas. But those three were in the majority that were 
     against Hatch's own Religious Freedom Restoration Act, which 
     Congress enacted to maneuver around an earlier Supreme Court 
     ruling.
       ``The Supreme Court has thrown down a gauntlet,'' Hatch 
     said in a statement released the day after the decision was 
     announced. ``I intend to pick it up.'' After stumping against 
     judicial activism for the better part of a year, Hatch 
     suddenly expanded the term. Now he complained about 
     ``conservative judicial activism.''
       Perhaps, as a result, there will be a finer point to the 
     debate, which is likely to continue. It has quickened in 
     academia. But asking legal scholars to define judicial 
     activism is like asking judges to interpret the Constitution. 
     Often the only common thread is their certainty. An activist 
     against judicial activism, Thomas Jipping of the Judicial 
     Selection Monitoring Project offers a quote from Humpty 
     Dumpty in a colloquy with Alice after she ventured beyond the 
     looking glass: ``When I use a word it means just what I 
     choose it to mean--neither more nor less.''
       Without using the term, Justice John Paul Stevens, in a 35-
     page dissent in Printz v. US, which struck down parts of the 
     Bready Handgun Violence Prevention Act, chided his 
     conservative colleagues--Rehnquist, Scalia, and Thomas in 
     particular--for engaging in the kind of judicial activism 
     they've eschewed so vocally in the past. Stevens pointed out 
     that they had resorted to ``emanations'' and ``penumbras'' 
     from the Constitution, tools liberals often are accused of 
     wielding to torture the document.
       While there is no locus classicus defining judicial 
     activism, Laurence Tribe at Harvard Law School may trump them 
     all: ``To say there is a neutral vantage point outside the 
     system for someone to declare in an Olympian and purportedly 
     objective way that this is activism and that is restraint is 
     itself a rather arrogant delusion.''
       But then, Tribe comes from the ``eye of the beholder'' 
     school of thought, which tends to be composed of liberals. 
     Those in the middle offer ``on the one hand, and not the 
     other'' definitions. And conservative scholars usually define 
     the term in considerable detail and nuance, with explanations 
     of the mistakes others make in trying to do so.
       Most are quick to mention specific cases, both old and 
     recent. Some still argue Marbury v. Madison. 5 U.S. 137 
     (1803).
       The conservative constitutional law professor Michael 
     McConnell, now teaching at the University of Utah College of 
     Law, made this response to Tribe. During the past 10 to 20 
     years, he said, the term judicial activism ``has been a 
     rhetorical theme of conservatives criticizing the court, and 
     it's only natural that their ideological opposites would try 
     to deconstruct and weaken that by saying it could be anything 
     in the eye of the beholder.''
       McConnell offered a definition: ``When a court imposes its 
     own moral or political judgments in place of those of the 
     democratically elected branches, without adequate warrant in 
     the constitutional text, history, structure and precedent.'' 
     But then he acknowledged the eye-of-the-beholder argument. 
     ``The devil is in the subordinate clause because we all see 
     that differently,'' McConnell added.
       A corollary to the argument that judicial activism is in 
     the beholder's eye might be that made by some that it is 
     necessary. Conservatives have complained for years that 
     liberals went to the courts to get policy they couldn't 
     muster through legislatures. Now many conservatives would 
     like to turn the tables.
       Clint Bolick, director of the libertarian Cato Institute's 
     Center for Constitutional Studies, believes the courts 
     ``should play a feisty role.'' The courts, particularly the 
     Supreme Court, were intended to be ``a vigorous guardian of 
     individual liberties against the encroachment of other 
     branches of government,'' he explained. So at Cato, ``we're 
     in the business of securing judicial activism of the right 
     kind, as in the correct kind.'' The Supreme Court's decisions 
     striking down several federal laws this past term are ``the 
     way the court is supposed to be activist,'' he said.
       In a more playful take on reining in judicial activism a 
     belt with a jagged edge, the pro-life, Christian-oriented 
     Family Research Council in June announced winners of its 
     Court Jesters Award, for judges it believes stepped out of 
     bounds. Noticeably missing

[[Page S11940]]

     from the list, as the conservative gratify Fein pointed out, 
     were two who made headlines during the year. One is federal 
     Judge John Spizzo in New York, who acquitted two men arrested 
     for blocking access to an abortion clinic because their 
     actions stemmed from ``conscience-driven religious belief'' 
     rather than willful criminal intent. The other is a state 
     court judge in Alabama who posted in Ten Commandments in his 
     courtroom and invited clergy to lead juries in prayer prior 
     to hearing cases. The FRC's director, Gary Bauer, was willing 
     to offer a written definition of judicial activism for this 
     story but was unavailable over several weeks for an interview 
     to discuss the topic.
       ``So many conservatives are so unprincipled in attacking 
     judicial activism because the real grievance is against the 
     results they don't like,'' said Fein, a columnist for the 
     conservative Washington Times newspaper and a regular 
     commentator on CNN, ``And the standards Republicans are now 
     voicing to screen Clinton nominees is what they said in the 
     Bork hearings should never be applied,'' he said referring to 
     the failed Republican nomination of Robert Bork in 1986.
       The Jihad against judicial activism is seen some, in part, 
     as the continuation of a dynamic the simmered through the 
     Bork hearings: a long continuing battle against the Warren 
     and Burger court. For one such attack through the rear-view 
     minor former attorney general Edwin Meese appeared Ashcroft's 
     hearings on judicial activism. A fellow the Heritage 
     Foundation, Meese followed up, releasing to the Judiciary 
     Committee a report titled ``Putting the Federal Judiciary 
     Back on Track.'' The former Reagan administration official 
     wants a number of landmark decisions by the Warren and Burger 
     courts reversed, and agrees with Bork much-criticized belief 
     that Congress should be empowered to overrule Supreme Court 
     decision by simple majority vote.
       For some, that rear-view mirror is cloudy. ``The irony of 
     complaints now about judicial activism,'' said Professor 
     Erwin Chemerinsky of the University of Southern California 
     Law School, ``is that the majority of justices on the Supreme 
     Court and the majority of federal judges are Republican 
     appointees. And the Supreme Court hasn't recognized a new 
     constitutional right in 25 years.''
       That may be why many believe the judicial activism wars are 
     more of a political tool. Federal judges and the Supreme 
     Court are ``pushing fewer hot bottoms than they were 25 or 30 
     or 40 years ago,'' said A.E. Dick Howard, a constitutional 
     scholar at the University of Virginia School of Law. The 
     debate over judicial activism ``is not as hot today. No 
     attack on the modern court is comparable to [President 
     Richard] Nixon's attacks on the Warren court.''
       There is no broad-based criticism of the courts today that 
     compares to the time of Brown v. Board of Education, 347 U.S. 
     483 (1954), and issues of one-person-one-vote and school 
     prayer. Howard explained. Criticism today is more episodic, 
     he said.
       On Capitol Hill, senators trying to break the lock on 
     judicial nominations believe Chief Justice Rehnquist should 
     go further than criticizing it in his annual report on the 
     judiciary, ``Who reads that?'' asks one Senate staffer, ``He 
     needs to get out and say it in speeches.'' And others say 
     that if President Clinton went to war over one or two judges, 
     win or lose in Senate confirmations, the floodgates would 
     open for all the others. ``Every time a president has fought, 
     if it looks like he's fighting for principle, he wins 
     politically,'' said Professor Herman Schwartz, of American 
     University's Washington College of Law. ``People would pay 
     attention, American like an independent judiciary.''
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Christina A. Snyder, of California, to be 
U.S. District judge for the central district of California? The yeas 
and nays have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Colorado [Mr. Campbell] 
is necessarily absent.
  The result was announced--yeas 93, nays 6, as follows:

                      [Rollcall Vote No. 297 Ex.]

                                YEAS--93

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Byrd
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--6

     Burns
     Coverdell
     Craig
     Enzi
     Faircloth
     Grams

                             NOT VOTING--1

     Campbell
       
       
  The nomination was confirmed.

                          ____________________